United States District Court, District of Columbia
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
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.
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,
(last visited Sept. 26, 2019).
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.
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
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
Id.; see Compl. ¶ 23.
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.
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).
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).
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).
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).
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).
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
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).
The VA FOIA Request
The October 14, 2015 Request
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).
14, 2015 FOIA Request, Ex. 1 to Compl. [Dkt. # 1-1]
(“Oct. 2015, VA FOIA Request”).
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,
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.
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.
The disputed records are responsive.
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
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).
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.
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.
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.
VA properly withheld the disputed records pursuant to FOIA
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.
FOIA Exemption 5
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).
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.
The VA has properly asserted the attorney-client privilege