Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Watkins Law & Advocacy, PLLC v. United States Department of Veterans Affairs

United States District Court, District of Columbia

September 30, 2019

WATKINS LAW & ADVOCACY, PLLC, Plaintiff,
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, et al., Defendants.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE

         In October and November 2015, plaintiff Watkins Law & Advocacy, PLLC, submitted seven Freedom of Information Act (“FOIA”) requests to the United States Department of Veterans Affairs (“VA”), the United States Department of Justice (“DOJ”), the Federal Bureau of Investigation (“FBI”), and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) seeking records concerning “inter-agency agreements related to allegedly financially incompetent veterans . . . [who] are reported to DOJ, FBI, and ATF, ” pursuant to Public Law 103-159, also known as the Brady Handgun Violence Prevention Act of 1993 (“the Brady Act”). See Compl. [Dkt. # 1] ¶¶ 1, 30 (emphasis in original). On September 25, 2017, plaintiff filed this suit, alleging that “[s]ix of the seven requests [had] not received any response determination, ” and demanding that the agencies produce the responsive records as required by FOIA, 5 U.S.C. § 552. Id. ¶¶ 2-3. The agencies then processed plaintiff's requests, and eventually defendants moved for summary judgment on December 10, 2018. Defs.' Mot. for Summ. J. [Dkt. # 20] (“Defs.' Mot.”); Defs.' Statement of Material Facts Not in Genuine Dispute [Dkt. # 20]; Mem. in Supp. of Defs.' Mot. for Summ. J. [Dkt. # 20] (“Defs.' Mem.”) [Dkt. # 20]. Plaintiff opposed that motion, and cross-moved for summary judgment. Pl.'s Cross-Mot. for Summ. J. [Dkt. # 21] (“Pl.'s Cross-Mot.”); Pl.'s Mem. in Opp. to Defs.' Mot. & in Supp. for Pl.'s Cross-Mot. [Dkt. # 21-1]. Four FOIA requests remain in dispute. For the reasons that follow the Court will deny in part and grant in part defendants' motion, and it will grant in part and deny in part plaintiff's motion.

         BACKGROUND

         The Gun Control Act of 1968 prohibits certain individuals, including convicted felons, fugitives from justice, and persons “adjudicated as a mental defective or . . . committed to a mental institution, ” from possessing firearms. 18 U.S.C. § 922(g). “The Brady Handgun Violence Prevention Act of 1993 required the Attorney General to establish a ‘national instant criminal background check system,' known as the NICS, to search the backgrounds of prospective gun purchasers for criminal or other information that would disqualify them from possessing firearms.” Nat'l Rifle Ass'n of Am., Inc. v. Reno, 216 F.3d 122, 125 (D.C. Cir. 2000), citing § 103(b), Pub. L. No. 103-159, 107 Stat. 1536. “The FBI developed the system through a cooperative effort with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and local and state law enforcement agencies.” About NICS, FBI, https://www.fbi.gov/services/cjis/nics/about-nics (last visited Sept. 26, 2019).

         Plaintiff states that on September 6, 1996, ATF initiated a rulemaking process “proposing to amend the regulations to provide definitions for the categories of persons prohibited from receiving or possessing firearms.” 61 Fed. Reg. 47, 095 (Sept. 6, 1996); see Compl. ¶ 22. The purpose of the rulemaking was to “facilitate the implementation of the national instant criminal background check system (NICS) required under the Brady Handgun Violence Prevention Act.” 61 Fed. Reg. at 47, 095. Under the section titled “Persons Who Have Been Adjudicated as Mental Defectives or Been Committed to a Mental Institution, ” ATF explained that the agency had “examined the definition of ‘mental incompetent' used by the Department of Veterans Affairs, ” which “covers persons who because of injury or disease lack the mental capacity to contract or manage their own affairs.” Id. at 47, 097, citing 38 C.F.R. § 3.353. ATF proposed a regulation that would adopt the VA's definition. Id.

         After a period of public comment, ATF adopted its final rule on June 27, 1997. See 62 Fed. Reg. 34, 634 (June 27, 1997). The final rule defined “adjudicated as a mental defective” in relevant part as, “[a] determination by a court, board, commission, or other lawful authority that a person, as a result of . . . mental illness, incompetency, condition, or disease . . . [l]acks the mental capacity to contract or manage his own affairs.” Id. at 34, 637. Plaintiff points out that the final notice discussed several public comments, including one from the VA:

In its comment, the U.S. Department of Veterans Affairs correctly interpreted the proposed definition of ‘‘adjudicated as a mental defective'' to mean that any person who is found incompetent by the Veterans Administration under 38 C.F.R 3.353 will be considered to have been adjudicated as a mental defective for purposes of the [Gun Control Act]. Section 3.353 provides that a mentally incompetent person is one who, because of injury or disease, lacks the mental capacity to contract or manage his or her own affairs.

Id.; see Compl. ¶ 23.

         In 1998, the FBI and the VA entered into a data-sharing Memorandum of Understanding (“MOU”) pursuant to the Brady Act whereby the VA provided the FBI with the names of veterans who fall within the category of “mental defective” for inclusion in NICS. See 1998 MOU, Ex. 5 to Pl.'s Opp. to Defs.' Mot. for Summ. J. [Dkt. # 22-6] (“1998 MOU”) at 2. A subsequent 2012 MOU between the FBI and the VA re-affirmed many of the data-sharing policies contained in the 1998 MOU but also introduced some additional terms. See 2012 MOU, Ex. 4 to Pl.'s Opp. to Defs.' Mot. for Summ. J. [Dkt. # 22-5] (“2012 MOU”). The 2012 Agreement provides that “VA-provided data may also be used for ATF inquiries in connection with civil or criminal law enforcement activities pursuant to Title 28, Code of Federal Regulations (C.F.R.), Section 25(6)(j)(2).” Id. at 1. In 1997, the Brady Act was amended to enact changes to NICS. See NICS Improvement Amendments Act of 2007, No. 110-180, H.R. 2640, 110th Cong. (2007-2008).

         In its complaint, plaintiff states that its “action seeks to shed light on the rulemaking process through which alleged financial incompetency was brought within the scope of the Brady Act as well as inter-agency agreements related to allegedly financially incompetent veterans and the procedures by which such VA-identified individuals are reported to the DOJ, FBI, and ATF.” Compl. ¶ 30 (emphasis in original).

         STANDARD OF REVIEW

         In a FOIA case, the district court reviews the agency's decisions de novo and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted).

         The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In the FOIA context, “the sufficiency of the agency's identification or retrieval procedure” must be “genuinely in issue” in order for summary judgment to be inappropriate. Weisberg v. DOJ, 627 F.2d 365, 371 n.54 (D.C. Cir. 1980), quoting Founding Church of Scientology v. Nat'l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979) (internal quotation marks omitted). In assessing a party's motion, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.'” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).

         “Summary judgment may be granted on the basis of agency affidavits” in FOIA cases, when those affidavits “contain reasonable specificity of detail rather than merely conclusory statements, ” and when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013), quoting Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). However, a plaintiff cannot rebut the good faith presumption afforded to an agency's supporting affidavits through “purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981).

         ANALYSIS

         FOIA requires the release of government records upon request. Its purpose is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). At the same time, Congress recognized “that legitimate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refused.” FBI v. Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information confidential.”), citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). The Supreme Court has instructed that “FOIA exemptions are to be narrowly construed.” Abramson, 456 U.S. at 630.

         To prevail in a FOIA action, an agency must first demonstrate that it has made “a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Second, the agency must show that “materials that are withheld . . . fall within a FOIA statutory exemption.” Leadership Conference on Civil Rights v. Gonzales, 404 F.Supp.2d 246, 252 (D.D.C. 2005). Any “reasonably segregable” information in a responsive record must be released, 5 U.S.C. § 552(b), and “non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).

         I. The VA FOIA Request

         A. The October 14, 2015 Request

         On October 14, 2015, plaintiff submitted a FOIA request to the VA seeking the following records:

all records (including all amendments, supplements, exhibits, and addenda thereto) which set out or reflect the VA's approved agency decision-making procedures concerning whether the name of a veteran is to be reported, identified, or otherwise referred for inclusion in the Mental Defective File of the National Instant Criminal Background Check System (“NICS”) database (also known as the NICS Index Mental Defective Commitment File), in effect at any time during 2013 to the present, including but not limited to any directive, guidance, policy, instruction, manual, procedure, guideline, standard, internal advice, message, checklist, flow chart, and/or memorandum with respect thereto (e.g., setting forth the procedure by which the VA may make a determination that an individual is “incompetent” with respect to handling his or her benefit payments such that a fiduciary must be appointed, with the individual then facing prohibitions under the Brady Act); and
all records, from 2010 to the present, indicating the total number of names of veterans reported, identified, or otherwise referred by the VA each year (or month or quarter) for inclusion in the Mental Defective File of the National Instant Criminal Background Check System (“NICS”) database (also known as the NICS Index Mental Defective Commitment File) (e.g., requester seeks summary records indicating the total number of veterans reported annually for inclusion in the Mental Defective File of NICS).

         October 14, 2015 FOIA Request, Ex. 1 to Compl. [Dkt. # 1-1] (“Oct. 2015, VA FOIA Request”).[1]

         The VA directed its components, the VA Office of General Counsel (“VA OGC”), the Veterans Benefits Administration (“VBA”), and the VA Office Public and Intergovermental Affairs (“OPIA”), to conduct searches in response to the request. Decl. of Tracy Knight [Dkt. # 20-4] (“Knight Decl.”) ¶¶ 6-8. Between November 2017 and April 2018, VA OGC, VBA, and OPIA responded separately to plaintiff with their production of non-exempt records. The agency produced some of the records in part, but withheld others in full pursuant to FOIA Exemption 5 under the deliberative process privilege and the attorney-client privilege. Id. ¶¶ 12, 15-17.

         The VA insists that its withholdings are justified for two reasons. First, the agency states that upon further review, it has determined that the withheld records are not responsive to plaintiff's FOIA request after all. Id. ¶¶ 14-15 (“[T]he VA inadvertently identified in its interim release these documents as ‘responsive' . . . as a threshold matter, these documents, on further review, are not responsive to the FOIA request.”). Therefore, VA contends that plaintiff is not entitled to records that fall outside of the scope of its request. Defs.' Mem. at 19-20.

         Second, the agency argues in the alternative, that if the Court considers the records responsive, they were nonetheless properly withheld under Exemption 5. Id. at 20-21. In support of its withholdings, the agency submitted the declaration of Tracy Knight, the VA's Information Specialist at VA OGC, and a Vaughn Index with a description of the ninety-four records withheld in full. Knight Decl. ¶¶ 1, 13; VA Vaughn Index [Dkt. # 20-4]. “In an effort to further narrow the scope of disputed records, ” plaintiff only challenges in its cross-motion the withholding of seventy-one records listed in the Vaughn Index as follows: 1, 3-12, 14-18, 21-26, 30, 31, 34, 35, 39-43, 46, 47, 49, 51, 56-61, 63, 65-77, and 79-94. Pl.'s Cross-Mot. at 16.

         1. The disputed records are responsive.

         The VA contends that the October 14, 2015 FOIA “request sought records from 2013 to the date of the request, ” and that “documents that pre-dated 2013” are not responsive. Defs.' Mem. at 19. The FOIA request seeks in relevant part:

all records (including all amendments, supplements, exhibits, and addenda thereto) which set out or reflect the VA's approved agency decision-making procedures concerning whether the name of a veteran is to be reported, identified, or otherwise referred for inclusion in the Mental Defective File of the National Instant Criminal Background Check System (“NICS”) database (also known as the NICS Index Mental Defective Commitment File), in effect at any time during 2013 to the present, including but not limited to any directive, guidance, policy, instruction, manual, procedure, guideline, standard, internal advice, message, checklist, flow chart, and/or memorandum with respect thereto (e.g., setting forth the procedure by which the VA may make a determination that an individual is “incompetent” with respect to handling his or her benefit payments such that a fiduciary must be appointed, with the individual then facing prohibitions under the Brady Act) . . .

Oct. 2015, VA FOIA Request (emphasis added).

         The VA interprets the language in bold to exclude documents that pre-date 2013, as well as those that “reflect[ ] agency deliberations concerning the implementation of aspects of the Brady Act that preceded ‘approved agency decision-making procedures.'” Knight Decl. ¶ 15 (emphasis added). In its view, the FOIA request only sought records dated after 2013, because only those records could “set out” or “reflect” approved agency decisionmaking procedures delineated in the 2012 MOU. See Reply Mem. in Supp. of Defs.' Mot. for Summ. J. [Dkt. # 26] (“Defs.' Reply Mem.”) at 3.

         Plaintiff maintains that these records are responsive, because pre-2013 documents can “set out” or “reflect” approved agency decisionmaking procedures based on the 1998 MOU between the VA and FBI. See Pl.'s Reply Br. in Supp. of Pl.'s Cross-Mot. for Summ. J. at 3 [Dkt. #27] (“Pl.'s Cross-Mot. Reply”) at 4-8. According to plaintiff, the 1998 MOU and the 2012 MOU contain “substantially similar purposes . . . similar terms concerning the veterans' data provided by VA to FBI . . . similar terms concerning the respective functions and responsibilities of VA and the FBI . . . [and] similar terms concerning restrictions with respect to data concerning veterans.” Id. Therefore, plaintiff contends that many of the “approved agency decision-making procedures in effect at any time during 2013 to present” could in fact be “set out” or “reflect[ed]” in pre-2013 documents. Id.

         The Court agrees with plaintiff. In determining the scope of a FOIA request, an agency has “a duty to construe a FOIA request liberally.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). The plain language of the request does not purport to limit the dates of the documents; it limits the procedures to which the documents pertain. To the extent records that pre-date 2013 “set out or reflect” procedures that were in effect in 2013, they fall within the request. So to the extent the 1998 MOU “set[s] out” and “reflect[s]” agency decisionmaking procedures that were re-approved in 2013, those records should be produced. See 2012 MOU; 1998 MOU. This conclusion is further bolstered by the fact that the VA itself initially deemed these records responsive.

         2. VA properly withheld the disputed records pursuant to FOIA Exemption 5.

         Because the contested records are responsive to the October 14, 2015 FOIA request, the Court must go on to address whether the VA properly withheld the records pursuant to FOIA Exemption 5. See 5 U.S.C. § 552(b)(5) (2006). The VA relies on both the deliberative process privilege and the attorney-client privilege to justify its withholdings. Knight Decl. ¶¶ 16-17. Based on the Court's review of the VA's declaration and its Vaughn Index, it finds that the agency met its burden and that the withholdings are appropriate under FOIA Exemption 5.

         a. FOIA Exemption 5

         FOIA Exemption 5 bars disclosure of “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 522(b)(5). A document may be properly withheld under Exemption 5 only if it satisfies “two conditions: its source must be a [g]overnment agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” U.S. Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001).

         Exemption 5 encompasses evidentiary privileges “in the civil discovery context, including material that would be protected under the attorney-client privilege, the attorney work-product privilege, or the executive deliberative process privilege.Formaldehyde Inst. v. Dep't of Health & Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989) (internal quotation marks omitted). It also covers the deliberative process privilege which protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Klamath, 532 U.S. at 8, quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). This privilege “rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery, ” and its purpose “is to enhance ‘the quality of agency decisions' by protecting open and frank discussion among those who make them within the Government.” Id. at 8-9, quoting Sears, 421 U.S. At 151. To accomplish that goal, “[t]he deliberative process privilege protects agency documents that are both predecisional and deliberative.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006), citing Coastal States, 617 F.2d at 866.

         i. The VA has properly asserted the attorney-client privilege for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.