Cause of Action Institute v. U.S. Department of Veterans Affairs ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CAUSE OF ACTION INSTITUTE,
Plaintiff,
Civil Action No. 20-997 (BAH)
v.
Chief Judge Beryl A. Howell
U.S. DEPARTMENT OF VETERANS
AFFAIRS,
Defendant.
MEMORANDUM OPINION
Plaintiff Cause of Action Institute (“COA”), a “non-profit strategic oversight group
advocating for economic freedom and individual opportunity advanced by honest, accountable,
and limited government,” Compl. ¶ 6, ECF No. 1, challenges the response of defendant, the U.S.
Department of Veterans Affairs (“VA”), to a request submitted pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, for records related to pilot market assessments
created by a VA contractor in preparation for VA’s implementation of the congressionally
mandated Market Area Health System Optimization (“MAHSO”) analysis, part of a broader
national plan to improve the delivery of health care to veterans, see Compl., Ex. 1, Letter from
John E. McGlothlin, Counsel, COA, to VA FOIA Service (Jan. 16, 2019) (“FOIA Request”),
ECF No. 1-1. Specifically, plaintiff alleges in a single claim that VA unlawfully withheld
records responsive to plaintiff’s FOIA Request. Compl. ¶¶ 24–30; see also Pl.’s Mem. P. & A.
Opp’n Def.’s Mot. Summ. J. & Supp. Pl.’s Cross-Mot. Summ. J. (“Pl.’s Opp’n”) at 1, ECF No.
17-1.
Pending before the Court are the parties’ cross-motions for summary judgment. Def.’s
Mot. Summ. J. (“Def.’s Mot.”), ECF No. 16; Pl.’s Opp’n Def.’s Mot. Summ. J. & Cross-Mot.
1
Summ. J. (“Pl.’s Mot.”), ECF No. 17. For the reasons set forth below, VA’s Motion for
Summary Judgment is granted and plaintiff’s Cross-Motion for Summary Judgment is denied.
I. BACKGROUND
Pertinent background underlying plaintiff’s FOIA Request is briefly described, followed
by review of the FOIA Request and VA’s responses thereto, both before and after initiation of
this lawsuit.
A. Pertinent Background
“VA maintains a complex of medical facilities dedicated to Veteran health care that is
managed by the Veterans Health Administration (VHA),” including “approximately 140 [VA]
Medical Centers and nearly 1700 outpatient centers,” as well as Residential Treatment Facilities
and Community Living Centers. Def.’s Mot., Ex. 2, Decl. of Christine M. Stuppy, MBA
(“Stuppy Decl.”) ¶ 4, ECF No. 16-3. VA’s facilities are organized into eighteen geographic
regions, “known as Veterans Integrated Services Networks (VISNs),” that together “serve 96
geographic markets.” Id. In December 2014, Congress directed that the Secretary of VA
develop and deliver to Congress “a report including . . . a national realignment strategy that
includes a detailed description of realignment plans within each [VISN], including an updated
Long Range Capital Plan to implement realignment requirements” (the “National Realignment
Strategy”). Consolidated and Further Continuing Appropriations Act, 2015 (“2015 Act”), Pub.
L. No. 113-235, § 235, 128 Stat. 2130, 2566 (2014); see also Stuppy Decl. ¶ 5. The report was
also required to provide “an explanation of the process by which” VA developed its National
Realignment Strategy and “a cost vs. benefit analysis of each planned realignment.” 2015 Act
§ 235.
The VA MISSION Act of 2018 (“MISSION Act”), Pub. L. No. 115-182, 132 Stat. 1393(2018), imposed additional procedural requirements on VA’s development of its realignment
2
strategy, see id. tit. II, subtit. A, § 203, 132 Stat. at 1446. This statute obligates the VA Secretary
to “publish in the Federal Register and transmit to the Committees on Veterans’ Affairs of the
Senate and the House of Representatives” the proposed and final criteria “to be used by [VA] in
assessing and making recommendations regarding the modernization or realignment of [VHA]
facilities.” Id. § 203(a)(1); see also id. § 203(a)(3). The deadline for publication of the final
criteria is May 31, 2021. Id. § 203(a)(3). By January 31, 2022, the Secretary must “publish in
the Federal Register and transmit,” id. § 203(b)(1), to Congress and the Asset and Infrastructure
Review Commission (“AIR Commission”) created by the MISSION Act, see id. § 202, “a report
detailing the recommendations regarding the modernization or realignment of facilities of the
[VHA] on the basis of the final criteria” previously submitted by the agency, id. § 203(b)(1).
The MISSION Act sets out a list of “factors” that the Secretary must consider in making
recommendations, id. § 203(b)(2), and requires the agency to “assess the capacity of each
[VISN] and medical facility . . . to furnish hospital care or medical services,” including through
“a commercial health care market assessment of designated catchment areas . . . conducted by a
non-governmental entity” and “consult[ation] with veterans service organizations and veterans,”
id. § 203(b)(3), which assessments must be submitted with the agency’s recommendations, id.
§ 203(c), but does not otherwise limit VA’s discretion to develop its recommendations.
Upon submission, the agency’s recommendations will be subject to review by the AIR
Commission, see id., which may only change the recommendations if, among other mandatory
findings, it “determines that the Secretary deviated substantially from the final criteria”
published by VA, id. § 203(c)(2)(B)(i). By the end of January 2023, the AIR Commission will
“transmit to the President a report containing [its] findings and conclusions based on a review
and analysis of the recommendations made by the Secretary, together with the Commission’s
3
recommendations.” Id. § 203(c)(2)(A). Within two weeks of receiving the report, by February
15, 2023, the President must “transmit to the Commission and to the Congress a report
containing the President’s approval or disapproval of the Commission’s recommendations,” id.
§ 203(d)(1), and VA then “shall begin to implement” the approved recommendations, id.
§ 204(a).
VA determined that, to formulate its National Realignment Strategy, a study was
necessary of all ninety-six VISN markets, known as the MAHSO analysis. Stuppy Decl. ¶ 5.
The agency entered a contract with PricewaterhouseCoopers (“PWC”), an outside consulting
firm, “to develop a uniform methodology to perform market assessments . . . on healthcare
markets within the VISNs,” with the goal of generating “a consistent method of conducting
market assessments across all 96 [VISN] markets” (the “market assessment methodology”). Id.
¶ 6. This contract (the “Pilot Study Contract”) was assigned VA Contract No. VA101F-17-C-
2843. See id.; Def.’s Mot., Ex. 1, Decl. of Barbara Swailes (“Swailes Decl.”) ¶ 15, ECF No. 16-
2. As part of the contract, PWC was to test the market assessment methodology “in three diverse
markets by conducting pilot market assessments.” Stuppy Decl. ¶ 6. PWC completed the three
pilot market assessments, which utilized an “eight-step draft methodology,” id. ¶ 8, in Spring
2017 and provided to VA “deliverables that memorialized the work,” consisting of the three pilot
market assessments and a briefing document on each assessment, id. ¶ 7; see also Swailes Decl.
¶¶ 13, 15.
B. The FOIA Request
On January 16, 2019, plaintiff submitted the FOIA Request at issue to VA. FOIA
Request at 1; Def.’s Statement of Material Facts Not in Genuine Dispute (“Def.’s SMF”) ¶ 1,
ECF No. 16-4; Pl.’s Statement of Undisputed Material Facts (“Pl.’s SMF”) ¶ 1, ECF No. 17-2.
The Request sought “[a]ll records, including but not limited to email communications and
4
reports, relating to the results of The Pilot Study Contract (VA Contract No. VA101F-17-C-
2843).” FOIA Request at 1. The Request included in its scope “any information produced by
the Department of Veterans Affairs or provided by the contractor conducting the pilot studies,
which were designed to define processes and outputs for an ‘ideal healthcare delivery system,’”
from “December 6, 2016 to the present.” Id. VA received the FOIA Request that same day and
assigned it a tracking number. Swailes Decl. ¶ 5; Def.’s SMF ¶ 1.
C. Processing of the Request and Procedural History
The FOIA Request was initially referred to the VA Office of Procurement Policy
Services’ FOIA Office for processing, Swailes Decl. ¶ 5, and in February 2019, that office
informed plaintiff that it had forwarded the FOIA Request to the VA Construction Facility and
Management (“CFM”) FOIA Office “for file search and direct response” to plaintiff,” id. ¶ 6; see
also id., Ex. B, Email from Patricia Litewski, FOIA Officer, Procurement Policy Services, VA,
to John McGlothlin, Counsel, COA (Feb. 15, 2019, 9:54 AM), ECF No. 16-2; Pl.’s SMF ¶ 6;
Def.’s Resp. Pl.’s Statement of Undisputed Material Facts (“Def.’s Resp. SMF”) ¶ 6, ECF No.
19-1. The CFM FOIA Office soon determined that the Pilot Study Contract had been handled by
VHA rather than CFM, and thus transferred the FOIA Request to the VHA Central Office FOIA
Office (“VHA FOIA Office”) for further processing. Swailes Decl. ¶ 7. Plaintiff was informed
of the transfer in March 2019. Id. ¶¶ 8, 9; see also id., Ex. C, Letter from Michael B. Sarich,
Director, VHA FOIA Off., to John McGlothlin, Counsel, COA (Mar. 8, 2019), ECF No. 16-2;
id., Ex. D, Letter from Michael B. Sarich, Director, VHA FOIA Off., to John McGlothlin,
Counsel, COA (Mar. 15, 2019), ECF No. 16-2.
At the time of the transfer, the VHA FOIA Officer sent record search inquiries to VHA’s
Office of Policy and Planning (“OPP”), Office of Healthcare Transformation (“OHT”), and
Office of Capital Asset Management, Engineering, and Support (“OCAMES”). Swailes Decl.
5
¶ 10. OHT “responded by indicating that” the Pilot Study Contract “was not an OHT contract,”
and OCAMES “request[ed] that the record search be directed to OPP due to OPP’s involvement
with the market assessment project.” Id. As of June 2019, the FOIA Officer had not received
any response from OPP. Id. Nearly a year later, on April 14, 2020, having received no
communications from VA since March 2019, plaintiff requested a status update on the
processing of the FOIA Request. Id. ¶ 11. The VHA FOIA Officer responded to plaintiff on the
same day and “provided the end of the calendar year 2020 as an estimated date of completion.”
Id. Two days later, on April 16, 2020, plaintiff initiated this litigation. See Compl.; Pl.’s SMF
¶ 8; Def.’s Resp. SMF ¶ 8.
Two weeks after the filing of the instant Complaint, OPP informed the FOIA Officer that
it had produced some potentially responsive documents in response to a previous FOIA request
for the pilot market assessments. Swailes Decl. ¶ 10. The FOIA Officer tracked down “the
responsive documents” identified pursuant to that request, consisting of “seven documents,
totaling four hundred and eighty-nine . . . pages, [B]ates numbered 1-489.” Id. The seven
documents included the three pilot market assessments, with one of the three studies split into
two files, and three related briefing documents, all prepared by PWC in consultation with VA
employees pursuant to the Pilot Study Contract. See id.; id., Ex. F, Vaughn Index FOIA Request
19-05023-F (“Vaughn Index”) at 1–24, ECF No. 16-2.
On May 11, 2020, the VHA FOIA Officer issued VA’s first Initial Agency Decision (the
“First IAD”), addressing these seven documents, to plaintiff. Id. ¶ 13; id., Ex. E, Letter from
Barbara Swailes, VHA FOIA Officer, VHA FOIA Off., to John E. McGlothlin, Counsel, COA
(May 11, 2020) (“First IAD”) at 2, ECF No. 16-2; Def.’s SMF ¶ 3(a); Pl.’s Resp. SMF ¶ 3; Pl.’s
SMF ¶¶ 10–11; Def.’s Resp. SMF ¶¶ 10–11. All 489 pages were withheld in full pursuant to the
6
deliberative process privilege of FOIA Exemption 5, with certain overlapping withholdings
under FOIA Exemption 6. First IAD at 2–7; see also Swailes Decl. ¶ 13; Def.’s SMF ¶ 3(a);
Pl.’s Resp. SMF ¶ 3; Pl.’s SMF ¶¶ 11–12; Def.’s Resp. SMF ¶¶ 11–12. As reflected in the
parties’ first Joint Status Report to the Court, VA agreed to produce a Vaughn Index
corresponding to the First IAD to plaintiff, see Joint Status Report (June 3, 2020) at 1, ECF No.
10, and did so in June 2020, Swailes Decl. ¶ 24.1
Between June 2020 and September 2020, the VHA FOIA Officer searched for additional
materials responsive to the FOIA Request. Swailes Decl. ¶ 25; see also Joint Status Report
(Aug. 3, 2020) at 1–2, ECF No. 11. The FOIA Officer issued two further IADs during this
period, in August and September. Swailes Decl. ¶ 25; Pl.’s SMF ¶¶ 15–16; Def.’s Resp. SMF
¶¶ 15–16; Joint Status Report (Sept. 4, 2020) (“Sept. 4 JSR”) at 1, ECF No. 12. After realizing
that these two IADs addressed duplicate documents, Swailes Decl. ¶ 25, the parties “agreed to
narrow the scope of summary judgment to those responsive records identified in” the First IAD,
Pl.’s SMF ¶ 17; see also Def.’s Resp. SMF ¶ 17. Their next status report advised the Court that
“[p]laintiff d[id] not contest the adequacy of the search but intend[ed] to challenge [VA]’s
withholding of certain pilot studies and related records under Exemptions 5 and 6,” and that the
parties therefore “believe[d] that briefing on summary judgment [was] necessary.” Joint Status
Report (Sept. 25, 2020) (“Sept. 25 JSR”) at 1, ECF No. 13. A schedule for dispositive motions
was accordingly set. See Min. Order (Sept. 28, 2020); Min. Order (Dec. 8, 2020).
On December 14, 2020, less than a month before its Motion for Summary Judgment was
due, see Min. Order (Dec. 8, 2020), VA “issued a notification letter” to plaintiff “as a follow-up”
to the First IAD. Swailes Decl. ¶ 26; see also Pl.’s SMF ¶ 18; Def.’s SMF ¶ 18. This letter
1
“A Vaughn index describes the documents withheld or redacted [by the agency] and the FOIA exemptions
invoked, and explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C.
Cir. 2015).
7
advised that the agency “had determined that the eight-step methodology” used in the three pilot
market assessments “could be released.” Swailes Decl. ¶ 26. The VHA FOIA Officer
accordingly “re-reviewed” the 489 pages that had been withheld in the First IAD “and released
the five pages containing the methodology in full,” as well as “additional pages that repeated
methodology information.” Id. She further “determined that [the agency] could release several
pages that had essentially no substantive content and release of which would not harm the
agency.” Id. As a result of this second review of the First IAD, “[a] total of thirty-eight . . .
pages” previously withheld “were released in full or in part,” id., but VA continued to withhold
in full the remaining 451 pages. The agency also produced to plaintiff a revised Vaughn Index.
Id.; see also Vaughn Index. The parties’ briefing continued on the basis of the revised First IAD,
and the pending cross-motions for summary judgment became ripe for resolution on March 26,
2021. See Pl.’s Reply Br. Supp. Pl.’s Cross-Mot. Summ. J. (“Pl.’s Reply”), ECF No. 21.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, “‘[a] party is entitled to summary judgment
only if there is no genuine issue of material fact and judgment in the movant’s favor is proper as
a matter of law.’” Soundboard Ass’n v. FTC, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (quoting
Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006));
see also Fed. R. Civ. P. 56(a). “‘In FOIA cases, summary judgment may be granted on the basis
of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory
statements, and if they are not called into question by contradictory evidence in the record or by
evidence of agency bad faith.’” Aguiar v. DEA, 865 F.3d 730, 734–35 (D.C. Cir. 2017) (quoting
Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013)); see also Students
Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (“[A]n agency is entitled
8
to summary judgment if no material facts are in dispute and if it demonstrates ‘that each
document that falls within the class requested either has been produced . . . or is wholly exempt
from the Act’s inspection requirements.’” (omission in original) (quoting Goland v. CIA, 607
F.2d 339, 352 (D.C. Cir. 1978))). Most FOIA cases “can be resolved on summary judgment.”
Brayton v. Off. of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
FOIA was enacted “to promote the ‘broad disclosure of Government records’ by
generally requiring federal agencies to make their records available to the public on request.”
DiBacco v. U.S. Army (“DiBacco I”), 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting Dep’t of
Justice v. Julian, 486 U.S. 1, 8 (1988)). Agencies are therefore statutorily mandated to
“make . . records promptly available to any person” who submits a request that “reasonably
describe such records” and “is made in accordance with [the agency’s] published rules.” 5
U.S.C. § 552(a)(3)(A). To balance the public’s interest in governmental transparency and
“‘legitimate governmental and private interests [that] could be harmed by release of certain types
of information,’” Judicial Watch, Inc. v. U.S. Dep’t of Def., 913 F.3d 1106, 1108 (D.C. Cir.
2019) (quoting FBI v. Abramson, 456 U.S. 615, 621 (1982)), FOIA contains nine exemptions, set
forth in 5 U.S.C. § 552(b), which “are ‘explicitly made exclusive’ and must be ‘narrowly
construed,’” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (first quoting EPA v. Mink, 410
U.S. 73, 79 (1979); and then quoting Abramson, 456 U.S. at 630); see also Murphy v. Exec. Off.
for U.S. Att’ys, 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Resp. & Ethics in Wash. v. U.S.
Dep’t of Justice (“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014). “[T]hese limited exemptions
do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the
Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).
9
FOIA authorizes federal courts “to enjoin the agency from withholding agency records
and to order the production of any agency records improperly withheld from the complainant.” 5
U.S.C. § 552(a)(4)(B). When an agency invokes an exemption to disclosure, district courts must
“determine de novo whether non-disclosure was permissible.” Elec. Priv. Info. Ctr. v. U.S. Dep’t
of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015). The statute “places the burden ‘on the
agency to sustain its action,’ and the agency therefore bears the burden of proving that it has not
‘improperly’ withheld the requested records.” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t
of Justice, 922 F.3d 480, 487 (D.C. Cir. 2019) (first quoting 5 U.S.C. § 552(a)(4)(B); and then
quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)); see also U.S. Dep’t
of Justice v. Landano, 508 U.S. 165, 171 (1993) (“The Government bears the burden of
establishing that the exemption applies.”); DiBacco v. U.S. Dep’t of Army (“DiBacco II”), 926
F.3d 827, 834 (D.C. Cir. 2019) (“‘An agency withholding responsive documents from a FOIA
release bears the burden of proving the applicability of clamed exemptions,’ typically through
affidavit or declaration.” (quoting DiBacco I, 795 F.3d at 195)). This burden does not shift even
when the requester files a cross-motion for summary judgment because the agency ultimately
“bears the burden to establish the applicability of a claimed exemption to any records or portions
of records it seeks to withhold,” Am. Immigr. Laws. Ass’n v. Exec. Off. for Immigr. Rev., 830
F.3d 667, 673 (D.C. Cir. 2016), while “[t]he burden upon the requester is merely ‘to establish the
absence of material factual issues before a summary disposition of the case could permissibly
occur,’” Pub. Citizen Health Rsch. Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999) (quoting
Nat’l Ass’n of Gov’t Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).
10
III. DISCUSSION
Plaintiff contests VA’s invocation of Exemptions 5 and 6 to justify withholding of all but
thirty-eight pages of the seven documents identified in the First IAD and its redactions from
twenty-two of the thirty-eight produced pages. See Pl.’s Opp’n at 6–18; Pl.’s Reply at 5–13.
Additionally, plaintiff disputes VA’s foreseeable harm and segregability analyses with respect to
its withholdings. See Pl.’s Opp’n at 18–23; Pl.’s Reply at 13–17.2 These topics are addressed
seriatim.3
A. Application of FOIA Exemptions
FOIA “requires government agencies to make information available upon request, unless
the information is protected by one of” FOIA’s nine exemptions. Judicial Watch, Inc. v. U.S.
Dep’t of Def., 847 F.3d 735, 738 (D.C. Cir. 2017). An agency must prove the applicability of
claimed exceptions, and can do so through a Vaughn index, and supporting affidavits or
declarations, that “describe[] the justifications for withholding the information with specific
2
VA discusses at length the adequacy of its search for records responsive to the FOIA Request, see Def.’s
Mem. P. & A. Supp. Def.’s Mot. Summ. J. (“Def.’s Mem.”) at 5–8, ECF No. 16-1; Def.’s Reply Mem. Supp. Def.’s
Mot. Summ. J. & Resp. Opp’n Pl.’s Mot. Summ. J. (“Def.’s Reply”) at 1–2, ECF No. 19, even though, as explained
supra Part I.C, the parties agreed to restrict the scope of summary judgment to the propriety of VA’s withholdings
under Exemptions 5 and 6, see Sept. 25 JSR at 1, and plaintiff maintains, consistent with the parties’ previous
representation to the Court, that “the sufficiency of [VA]’s search” for responsive records “is not in dispute,” Pl.’s
Opp’n at 7 n.3; see also Pl.’s Reply at 1–2. Indeed, plaintiff’s Complaint nowhere alleges that VA’s search was
inadequate. See Compl. Accordingly, the adequacy of VA’s search is not contested and will not be addressed any
further. See, e.g., Niskanen Ctr. v. FERC, 436 F. Supp. 3d 206, 212–13 (D.D.C. 2020); Tipograph v. Dep’t of
Justice, 83 F. Supp. 3d 234, 238 (D.D.C. 2015); Showing Animals Respect & Kindness v. U.S. Dep’t of Interior, 730
F. Supp. 2d 180, 190 (D.D.C. 2010).
3
Plaintiff requests that the Court “order [VA] to submit unredacted versions of the records at issue” for in
camera review, Pl.’s Opp’n at 25, arguing that such review is warranted “[b]ased on . . . [VA’s] improper use of
Exemptions 5 and 6, as well as [the agency’s] questionable efforts to segregate non-exempt portions of records for
release,” id. at 24; see also id. at 23–25; Pl.’s Reply at 17. FOIA provides that a district court “may examine the
contents of . . . agency records in camera” at its discretion, 5 U.S.C. § 552(a)(4)(B), “but ‘it by no means compels
the exercise of that option,’” Larson v. Dep’t of State, 565 F.3d 857, 869 (D.C. Cir. 2009) (quoting Juarez v. Dep’t
of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008)). “‘If the agency's affidavits provide specific information sufficient to
place the documents within the exemption category, if this information is not contradicted in the record, and if there
is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of
the documents.’” Mobley v. CIA, 806 F.3d 568, 588 (D.C. Cir. 2015) (quoting ACLU v. U.S. Dep’t of Def., 628 F.3d
612, 626 (D.C. Cir. 2011)). As explained below, the first two of these requirements are satisfied in the instant case,
and plaintiff raises no allegations of agency bad faith. In camera review therefore will not be ordered.
11
detail, demonstrate[] that the information withheld logically falls within the claimed exemption,
and [are] not contradicted by contrary evidence in the record or by evidence of the agency’s bad
faith.” DiBacco II, 926 F.3d at 834 (internal quotation marks and citation omitted); see also,
e.g., CREW, 746 F.3d at 1088; Poitras v. Dep’t of Homeland Sec., 303 F. Supp. 3d 136, 150
(D.D.C. 2018) (“An agency may carry its burden of showing an exemption was properly invoked
by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld
documents, or both, to demonstrate that the government has analyzed carefully any material
withheld and provided sufficient information as to the applicability of an exemption to enable the
adversary system to operate.”). “‘Ultimately, an agency’s justification for invoking a FOIA
exemption is sufficient if it appears logical or plausible.’” Judicial Watch, Inc. v. U.S. Dep’t of
Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (per curiam) (quoting ACLU, 628 F.3d at 619).
Plaintiff disputes VA’s assertion of Exemption 5’s deliberative process privilege as to the
agency’s withholding of 451 full pages of the pilot market assessments and related briefing
documents discussed in the First IAD and redactions from an additional twenty-two pages of
these seven documents. See Vaughn Index at 1–24; Pl.’s Opp’n at 8–11; Pl.’s Reply at 5–8. It
further contests VA’s overlapping claim that Exemption 6 shields from disclosure thirty-five
pieces of potentially personally identifying information, for which the agency also cites
Exemption 5. See Vaughn Index at 1, 4–5, 7–9, 11–13, 14–16, 17–18, 21–23; Pl.’s Opp’n at 11–
18; Pl.’s Reply at 8–13. To justify its withholdings from the seven documents, VA need only
show that one exemption applies to each withholding. See Judicial Watch, Inc., 715 F.3d at 940;
Ctr. for Nat’l Sec. Stud. v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (noting that
a court “need not address [any] other exemptions invoked” for a withholding justified by one
exemption); Cause of Action Inst. v. Exp.-Imp. Bank of U.S., Civ. A. No. 19-1915 (JEB), 2021
12
WL 706612, at *3 (D.D.C. Feb. 23, 2021). As explained below, VA has properly relied on
Exemption 5 to withhold or redact information from the three pilot market assessments and the
three related briefing documents, and the applicability of Exemption 6 therefore need not be
considered.
1. Legal Standards Governing Application of Exemption 5
Exemption 5 protects from disclosure “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. § 552(b)(5). “‘Among th[e] privileges protected by Exemption 5 is the . . .
deliberative process privilege.’” Judicial Watch, Inc., 847 F.3d at 739 (alteration and omission
in original) (quoting Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257 (D.C. Cir. 1982)); see
also Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015). “To protect
agencies from being ‘forced to operate in a fishbowl,’ the deliberative process privilege shields
from disclosure ‘documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated.’”
U.S. Fish & Wildlife Serv. v. Sierra Club, Inc. (“Sierra Club”), 141 S. Ct. 777, 785 (2021) (first
quoting Mink, 410 U.S. at 87; and then quoting NLRB v. Sears, Roebuck & Co. (“Sears”), 421
U.S. 132, 150 (1975)). It “is rooted in ‘the obvious realization that officials will not
communicate candidly among themselves if each remark is a potential item of discovery and
front page news.’” Id. (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 8–9 (2001)); see also Judicial Watch, Inc., 847 F.3d at 739 (noting that the deliberative
process privilege is predicated on the theory that “agencies craft better rules when their
employees can spell out in writing the pitfalls as well as the strengths of policy options, coupled
with the understanding that employees would be chilled from such rigorous deliberation if they
feared it might become public”). The privilege is intended “[t]o encourage candor, which
13
improves agency decisionmaking,” by “blunt[ing] the chilling effect that accompanies the
prospect of disclosure.” Sierra Club, 141 S. Ct. at 785; see also Machado Amadis v. U.S. Dep’t
of State, 971 F.3d 364, 371 (D.C. Cir. 2020) (finding the deliberative process privilege intended
to “protect[] ‘debate and candid consideration of alternatives within an agency,’ thus improving
agency decisionmaking”) (quoting Jordan v. Dep’t of Justice, 591 F.2d 753, 772 (D.C. Cir.
1978) (en banc))).
“To qualify for the deliberative process privilege, an intra-agency memorandum must be
both pre-decisional and deliberative.” Abtew, 808 F.3d at 898 (citing Coastal States Gas Corp.
v. Dep’t of Energy (“Coastal States”), 617 F.2d 854, 866 (D.C. Cir. 1980)); see also Hall &
Assocs. v. EPA, 956 F.3d 621, 624 (D.C. Cir. 2020).4 The Supreme Court recently clarified the
contours of these requirements in U.S. Fish and Wildlife Service v. Sierra Club, Inc. (“Sierra
Club”), 141 S. Ct. 777 (2021), finding that “[t]he privilege . . . distinguishes between
predecisional, deliberative documents, which are exempt from disclosure, and documents
reflecting a final agency decision and the reasons supporting it, which are not,” id. at 785–86.
“Documents are ‘predecisional’ if they were generated before the agency’s final decision on the
4
At the outset, an agency can claim the deliberative process privilege only with respect to “inter-agency or
intra-agency memorandums or letters.” 5 U.S.C. § 552(b)(5). The D.C. Circuit “has . . . interpreted the phrase
‘intra-agency’ in Exemption 5 to go beyond the text and include U.S. agency records authored by non-agency
entities if those records were solicited by a U.S. agency in the course of its deliberative process” and were created by
“an outside consultant” who “did not have its own interests in mind.” Pub. Emps. for Env’tl Resp. v. U.S. Section,
Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 201–02 (D.C. Cir. 2014) (citing McKinley v. Bd. of
Governors of the Fed. Reserve Sys., 647 F.3d 331, 336–37 (D.C. Cir. 2011)); see also Nat’l Inst. of Mil. Justice v.
U.S. Dep’t of Def., 512 F.3d 677, 679–80 (D.C. Cir. 2008); Buzzfeed, Inc. v. FBI, Civ. A. No. 18-cv-2567 (BAH),
2020 WL 2219246, at *6 (D.D.C. May 7, 2020). This interpretation, known as the “consultant corollary” to
Exemption 5, brings agency “communications to or from non-governmental parties, including contractors,” within
the scope of the exemption as intra-agency documents, so long as “‘the consultant does not represent an interest of
its own, or the interest of any other client, when it advises the agency that hires it.’” Competitive Enter. Inst. v. EPA,
232 F. Supp. 3d 172, 185 (D.D.C. 2017) (quoting Elec. Priv. Info. Ctr. v. Dep’t of Homeland Sec., 892 F. Supp. 2d
28, 45 (D.D.C. 2012)). Though plaintiff “objects to the foundational confusion and lack of textual support
undergirding the D.C. Circuit’s prevailing precedent, and the obvious inconsistency of the consultant corollary with
the plain meaning of Exemption 5’s unambiguous language,” it does not contest that, under this Circuit’s binding
precedent upholding and applying the consultant corollary, VA “has technically satisfied Exemption 5’s threshold
requirement” that a record be an inter-agency or intra-agency communication. Pl.’s Opp’n at 8 n.3. The parties
therefore do not dispute that the contested records qualify as “intra-agency” documents. See Def.’s Mem. at 9; Pl.’s
Opp’n at 8 n.3.
14
matter, and they are ‘deliberative’ if they were prepared to help the agency formulate its
position.” Id. at 786 (citing Sears, 421 U.S. at 150–52; Renegot. Bd. v. Grumman Aircraft Eng’g
Corp., 421 U.S. 168, 184–86, 190 (1975)); see also Judicial Watch, Inc., 847 F.3d at 739
(“Documents are ‘predecisional’ if they are ‘generated before the adoption of an agency policy,’
and ‘deliberative’ if they ‘reflect[] the give-and-take of the consultative process.’” (alteration in
original) (quoting Pub. Citizen, Inc. v. Off. of Mgmt. & Budget, 598 F.3d 865, 874 (D.C. Cir.
2010))). “There is considerable overlap between these two prongs because a document cannot
be deliberative unless it is predecisional.” Sierra Club, 141 S. Ct. at 786.
Sierra Club explains that “a court must evaluate the documents ‘in the context of the
administrative process which generated them’” to decide whether a document represents an
agency’s final decision. Id. (quoting Sears, 421 U.S. at 138). “[D]etermining whether an
agency’s position is final for purposes of the deliberative process privilege is a functional rather
than formal inquiry,” id. at 788, that focuses on “whether [the record] communicates a policy on
which the agency has settled,” id. at 786. To answer this question, “courts must consider
whether the agency treats the document as its final view on the matter.” Id. (citing Sears, 421
U.S. at 161). “[O]nce cited as the agency’s final view, the document reflects ‘the consummation
of the agency’s decisionmaking process’ and not a ‘merely tentative position,’” and therefore
loses the protection of Exemption 5. Id. (quoting Bennett v. Spear, 520 U.S. 154, 177–78
(1997)). On the other hand, “a document that leaves agency decisionmakers ‘free to change their
minds’ does not reflect the agency’s final decision” and is exempt from disclosure. Id. (quoting
Grumman Aircraft Eng’g Corp., 421 U.S. at 189–90 & n.26). A record’s “real operative effect”
is probative of its finality, but is assessed by reference “to the legal, not practical, consequences
that flow from an agency action.” Id. at 787 (citing Sears, 421 U.S. at 159 n.25, 160). Thus, a
15
document that reflects an agency view “that [is] subject to change,” id. at 786, may be exempt as
predecisional and deliberative even if it in fact “has the effect of changing an agency’s course,”
id. at 788.
To show that the deliberative process privilege is properly invoked, the government must
explain, for each withheld record, at a minimum “(1) ‘what deliberative process is involved,’ (2)
‘the role played by the documents in issue in the course of that process,’ and (3) ‘the nature of
the decisionmaking authority vested in the office or person issuing the disputed document[s], and
the positions in the chain of command of the parties to the documents.’” Ctr. for Biological
Diversity v. EPA, 279 F. Supp. 3d 121, 147 (D.D.C. 2017) (alteration in original) (first quoting
Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585–86 (D.C. Cir. 1987); and then quoting
Elec. Frontier Found. v. U.S. Dep’t of Justice, 826 F. Supp. 2d 157, 168 (D.D.C. 2011)); see also
Ecological Rights Found. v. EPA, Civ. A. No. 19-980 (BAH), 2021 WL 535725, at *12 (D.D.C.
Feb. 13, 2021). “The government, not the requester, must identify the deliberative process to
which any record relates.” Ctr. for Investigative Reporting v. U.S. Customs & Border Prot., 436
F. Supp. 3d 90, 101 (D.D.C. 2019) (citing 100Reporters LLC v. U.S. Dep’t of Justice, 248 F.
Supp. 3d 115, 152 (D.D.C. 2017)); see also Senate of P.R., 823 F.2d at 585 (“[T]o approve
exemption of a document as predecisional, a court must be able ‘to pinpoint an agency decision
or policy to which the document contributed.’” (quoting Paisley v. CIA, 712 F.2d 686, 698 (D.C.
Cir. 1981))).
Plaintiff argues that the three pilot market assessments and related briefing documents
discussed in the First IAD “are neither predecisional nor deliberative,” Pl.’s Opp’n at 11; see
also Pl.’s Reply at 8, and therefore contests VA’s reliance on Exemption 5’s deliberative process
privilege to justify its withholding of 451 pages of these records, see Vaughn Index at 1–24, and
16
its redactions from twenty-two of the thirty-eight pages that were produced, see Vaughn Index at
1, 7, 11, 14, 18, 21. For the reasons explained below, the challenged withholdings and
redactions involve predecisional and deliberative records and VA therefore properly asserted
Exemption 5 to withhold or redact the information at issue.
2. Description of Information Withheld Pursuant to Exemption 5
VA describes the seven disputed records as “three market assessment pilots,” one of
which “was broken into two documents, and three briefing documents,” Swailes Decl. ¶ 13,
totaling 489 pages, that “were created in part by [PWC] acting as an outside consultant on behalf
of VA as deliverables to [the Pilot Study Contract],” in consultation with VHA employees, id.
¶ 15; see also Stuppy Decl. ¶ 7; Vaughn Index at 1, 4–5, 8, 11–12, 15, 18, 21. The three pilot
studies underlying these documents were intended “to develop a uniform methodology to
perform market assessments” in all ninety-six VISN markets and to “test[]” that methodology “in
three diverse markets.” Stuppy Decl. ¶ 6. For each study, the consultant, with input from agency
employees, produced a pilot market assessment, see Vaughn Index at 7 (referring to Part 1 of the
second pilot market assessment by Bates Nos. 68–127), 11 (referring to Part 2 of the second pilot
market assessment by Bates Nos. 128–81), 14 (referring to the first pilot market assessment by
Bates Nos. 182–328), 21 (referring to the third pilot market assessment by Bates Nos. 357–489),
and a shorter briefing document, see id. at 1 (referring to the briefing document for the first pilot
market assessment by Bates Nos. 1–42), 4 (referring to the briefing document for the second
pilot market assessment by Bates Nos. 43–67), 17–18 (referring to the briefing document for the
third pilot market assessment by Bates Nos. 329–56).
Upon issuance of the revised First IAD, VA released five pages that described “the eight-
step methodology” used in the pilot studies “in full” as well as “additional pages that repeated
methodology information” and “several pages that essentially had no substantive content,” for a
17
total of thirty-eight pages. Swailes Decl. ¶ 26; see also Stuppy Decl. ¶ 8 (outlining the draft
methodology). The agency redacted certain information, including the names of facilities and
markets studied and content that would reveal the substance of the market assessments, from
twenty-two of these thirty-eight pages. See Vaughn Index at 1, 7, 11, 14, 18, 21. The remaining
451 pages were withheld in full. See id. at 1–24; supra Part I.C.
In asserting Exemption 5 to justify these withholdings, VA contends that the information
withheld from all seven documents is “part of the foundation for VA to create its National
Realignment Strategy.” Def.’s Mem. at 11; see also Vaughn Index at 2, 5, 9, 12, 16, 19, 22
(identifying “the national realignment strategy” as the overarching deliberative process to which
the challenged records relate). Each of the seven documents “contain[s] the objectives of the
market assessment project, the developed methodology, the data utilized in testing the
methodology in the selected markets, and the proposed recommendations resulting from the
application of the methodology.” Swailes Decl. ¶ 17. The withheld sections of the three pilot
market assessments “contain[] the proposed recommendations and the rationale for suggesting
those recommendations in testing the methodology in one of the pilot market assessments”
carried out by PWC, Vaughn Index at 9; see also id. at 12, 16, 22–23, while the pages withheld
from the three briefing documents are described as “a summary/briefing of the proposed
recommendations” made in their respective pilot market assessment “and the rationale for
suggesting those recommendations in testing the methodology in one of the pilot market
assessments,” id. at 2; see also id. at 6, 19. The “[p]roposed recommendations” in each
document “are based on an analysis of standard data considered by [PWC] in developing the test
methodology for the 96 pilot market assessments.” Id. at 2–3; see also id. at 6, 9, 12–13, 16, 19,
23.
18
All seven records “were used to inform VA’s needs in conducting . . . market studies” in
each of the ninety-six VISN markets, Stuppy Decl. ¶ 10, which studies “are current and ongoing”
and will identify “opportunities” for “capital investments, divestments, or shifts in services
provided” to inform VA’s National Realignment Strategy, id. ¶ 6. Specifically, VA looked to the
documents (1) “to evaluate the market assessment methodology and to determine which
deliverables might be of interest to senior leaders,” id.; (2) “to improve upon the methodology”
used to carry out the pilot studies; (3) “to test [agency leaders’] appetite” for certain types of
proposed reforms; and (4) to receive feedback on “pilot market assessments results for review by
leadership” and “the content of the pilot market assessment reports, such as formatting and what
information to include,” id. ¶ 9. VA further represents that the pilot market assessments “are not
final as they pertain to” the three markets selected for study, because they represent an early step
in the MAHSO project, which is “currently underway” and “is not considered complete until all
96 [market assessments] have been finished, as each market assessment builds/interacts with
adjacent markets.” Swailes Decl. ¶ 19; see also Stuppy Decl. ¶ 10. The agency avers that “the
recommendations contained in the documents were not fully acted upon, finalized or
operationalized.” Swailes Decl. ¶ 20; see also Stuppy Decl. ¶ 9 (“[T]he outcomes of the pilot
studies—those identified . . . ‘recommendations,’ . . . were not intended to be acted upon, but
were themselves part of the testing.”).
3. The Withheld Documents Are Predecisional and Deliberative
Based on the above description of the three pilot market assessments and three briefing
documents, VA has shown that, while thirty-eight pages describing the draft methodology used
in the studies were released, with some redactions, the deliberative process privilege properly
applies to withhold the other 451 pages of these records. The agency has adequately stated the
deliberative processes involved (i.e., VA’s deliberations about how to conduct market
19
assessments in each of its ninety-six VISN markets and, in turn, how to develop its National
Realignment Strategy); the role the withheld sections of the documents played (i.e., evaluating
the success and application of the draft methodology, considering how to present results of the
market assessments to leadership, Congress, and the public, and identifying options for
recommendations to be included in the National Realignment Strategy); and the nature of the
decisionmaking authority of the author of the documents (i.e., an outside consultant contracted to
provide advice to the agency about how to carry out uniform market assessments). The
conclusions reached in the documents offer options for the presentation, development, and types
of recommendations that the agency might choose to pursue in the course of the ninety-six VISN
market assessments and the formation of the National Realignment Strategy. PWC’s suggestions
on these topics remain under agency consideration. Similarly, the assessment of and
recommendations specific to the three pilot markets studied are not the agency’s final evaluation
of those markets. VA’s redactions from twenty-two of the thirty-eight released pages of the
names of facilities and markets studied, and content revealing the substance of the pilot market
assessments are likewise supported by these factors.
Plaintiff nonetheless challenges that the seven documents are neither predecisional nor
deliberative in nature. Each of these contentions is addressed in turn.
(a) Pilot Market Assessments and Briefing Documents Are
Predecisional
Plaintiff first contends that “the pilot studies [and briefing documents] cannot be
predecisional because they only reflect the consummation of the design of the uniform
methodology” to be used by VA in completing assessments of all ninety-six VISN markets and
therefore represent the agency’s “final” view as to that methodology. Pl.’s Opp’n at 9 (emphasis
omitted); see also Pl.’s Reply at 3 (“The pilot studies only reflect finalization of the uniform
20
methodology used for the nationwide ninety-six market assessments.”). Thus, plaintiff proffers,
VA’s deliberations about the methodology at the center of the pilot market assessments have
ended and “[a]ny supposed distinction between the pilot studies being ‘complete’ but not ‘final’
is mere sleight of hand.” Pl.’s Opp’n at 10.
At the outset, the agency’s declarations, which state that “VHA uncovered ways to
improve upon” the draft methodology used in the pilot market assessments, Stuppy Decl. ¶ 9,
undermine plaintiff’s view that the pilot studies represent VA’s final methodology for
conducting the market assessments. Cf. Goodrich Corp. v. EPA, 593 F. Supp. 2d 184, 189
(D.D.C. 2009) (finding a draft groundwater flow model exempt because “evolving iterations of
the Model’s inputs and calibration . . . may not represent [the agency]’s ultimate opinions”
related to the model (internal quotation marks omitted)). More importantly, examination of the
function of the pilot market assessments in the “administrative context” of the VA reform
process outlined by the 2015 Act and the MISSION Act forecloses this argument. Sierra Club,
141 S. Ct. at 786.
In support of its claim that the pilot market assessments and briefing documents are
“final” and therefore not exempt, plaintiff argues that the documents are “entirely divorced from
[VA]’s broader [and continuing] effort to design a national realignment strategy and criteria for
future recommendations” pursuant to the 2015 Act and the MISSION Act, Pl.’s Opp’n at 9,
pointing specifically to the MISSION Act’s requirements that the AIR Commission and the
President give final approval to VA’s recommendations for realignment before they are
implemented, see id. at 9–10; Pl.’s Reply at 2–3; supra Part I.A. Plaintiff correctly notes that the
MISSION Act requires the AIR Commission to approve VA’s recommendations, see MISSION
Act § 203(c), and confers final decisionmaking authority with respect to VA reform on the
21
President, see id. §§ 203(d), 204(a). Before that final decisionmaking authority comes into play,
however, VA must carry out market assessments of each VISN, see id. § 203(b)(3), and publish
in the Federal Register and submit to Congress the criteria to be used by the agency in
developing the recommendations that will comprise its National Realignment Strategy, see id.
§ 203(a)(1), (3); and the Secretary of VA must transmit to Congress and the AIR Commission a
report on the agency’s findings and recommendations for realignment within each VISN for
approval first by the AIR Commission and then by the President, see id. §§ 203(b)(1), (3). The
Secretary’s recommendations must substantially conform to the published final criteria, see id.
§ 203(c), and account for certain factors enumerated in the MISSION Act, see id. § 203(b)(2),
but the agency is otherwise free to decide which criteria and recommendations to submit, as
plaintiff concedes, see Pl.’s Reply at 3.
Thus, as the agency rightly notes, VA retains “ultimate responsibility for developing the
criteria to be used in modernization and realignment efforts” and exercises “control over the
process leading to [its] recommendations” until those final criteria and recommendations are
published in the Federal Register or submitted to Congress and the AIR Commission, as the
MISSION Act requires. Def.’s Reply at 3; see also MISSION Act § 203(a), (b). The deadlines
for VA to do so have not yet passed. See supra Part I.A. Until they do, VA has substantial
discretion to determine which inputs are relevant to its decisionmaking process and, crucially, to
change those inputs and its resulting views on the National Realignment Strategy. The criteria,
report, and recommendations actually submitted to Congress will carry legal consequences, as
they will cabin VA’s discretion at the later stages in the formation of the National Realignment
Strategy and trigger a statutory process for review, revision, and finalization of a plan for reform
22
of VA’s health services by other actors, see MISSION Act §§ 203, 204, but VA’s preliminary
efforts to create those deliverables do not.
The place of the pilot market assessments and briefing documents within this larger
statutory process for development of the National Realignment Strategy makes clear that they are
not final, as Sierra Club understands that term. See Sierra Club, 141 S. Ct. at 786. As a first
step in the statutory process for VA reform set forth in the 2015 Act and the MISSION Act, VA
determined that the MAHSO analysis was key to complying with its obligations under those laws
and informing its choice of recommendations for each VISN. To carry out that analysis, it
entered into the Pilot Study Contract with PWC to develop a methodology for its ninety-six
VISN market assessments. The deliverables created pursuant to that Contract, the contested
records here, represent an early effort by VA to design the MAHSO analysis. They may
themselves be “complete,” insofar as VA has no immediate plans to revise them further, but they
represent just one of many steps that VA must take before the MAHSO analysis, and in turn, the
National Realignment Strategy, are “final.” At any point during this process that precedes the
submission of the agency’s findings and recommendations, so long as it remains faithful to the
final criteria that will be published in the Federal Register by May 31, 2021 and to the MISSION
Act’s guidelines for the market assessments, VA is free to change its approach to the assessments
without any consultation or review with outside actors. Even if plaintiff is correct, in practical
terms, in contending that “[t]he pilot studies only reflect finalization of the uniform methodology
used for the nationwide ninety-six market assessments,” Pl.’s Reply at 3, the use (or
abandonment) of this methodology by the agency has no legal consequences that support a
finding of finality. See Sierra Club, 141 S. Ct. at 787 (emphasizing “the legal, not practical,
consequences that flow from an agency’s action” in assessing finality).
23
Relatedly, the continuing “possibility of changes” to both the methodology and the
specific assessments and recommendations as to each of the three pilot markets set forth in the
pilot market assessments counsels against concluding that these documents are final. Id.; see
also Am. Soc’y for Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv.,
19 Civ. 3112 (NRB), 2021 WL 1163627, at *12 (S.D.N.Y. Mar. 25, 2021) (finding exempt under
Sierra Club information that “would reveal the Agencies’ interim thoughts on courses of action
that are contingent and subject to change”). Until its final report to Congress is submitted, VA
could abandon the pilot market assessments altogether, modify the methodology set forth therein,
or determine that it does not wish to pursue the types of recommendations included in the seven
deliverables, and the agency in fact states that the methodology has been and may continue to be
revised. Stuppy Decl. ¶ 9; see also Def.’s Mem. at 12 (“[T]he pilot market assessments are a part
of VA’s ongoing deliberative process to develop a final market assessment methodology[.]”
(emphasis omitted)). Moreover, VA explicitly declares that the pilot market assessments “are
not final as they pertain to” the evaluation of or recommendations concerning the three pilot
markets because “each market assessment builds/interacts with adjacent markets” and therefore
will evolve over the course of the MAHSO project. Swailes Decl. ¶ 19 (“[T]he geographic areas
covered in the pilot market assessments are being re-done in the larger 96-market assessment
project.”); see also id. ¶ 20; Stuppy Decl. ¶¶ 9–10. In the face of these clear disclaimers of
finality, the record does not support a conclusion that VA “treats” the pilot market assessments
and briefing documents “as its final view” on either the methodology for the market assessments
as a whole or the assessment of the three pilot markets in particular. Sierra Club, 141 S. Ct. at
786.
24
Recycling arguments already addressed, plaintiff attempts to distinguish Sierra Club on
the grounds that the pilot market assessments “‘reflect the consummation of the design of the
uniform methodology,’” Pl.’s Reply at 6 (quoting Pl.’s Opp’n at 9), in contrast to the draft
biological opinions at issue in Sierra Club, which were “more like ‘drafts of draft[s]’ as the
defendant agencies never held them out to be ‘final’ and considered them ‘subject to change,’”
id. at 5 (quoting Sierra Club, 141 S. Ct. at 788). Plaintiff accurately recites the teaching of
Sierra Club, but misapplies it to these records. As explained above, like the draft biological
opinions disputed in that case, the pilot market assessments and briefing documents are regarded
by VA as subject to revision as to both the methodology they propose and their specific findings
about the three pilot markets. Further, VA has not held these documents out as final in any way.
It notes in its Vaughn Index that each document is “labeled as a draft,” Vaughn Index at 2, 5, 9,
12, 16, 19, 22; see Sierra Club, 141 S. Ct. at 788 (“[A] draft document will typically be
predecisional because . . . calling something a draft communicates that it is not yet final[.]”), and
describes in its declarations the role of the documents as a first step in its larger MAHSO project,
which will culminate with the presentation of findings and recommendations to Congress and the
AIR Commission, see Stuppy Decl. ¶¶ 6–10; Swailes Decl. ¶¶ 19–20.
Plaintiff next cautions that finding these records to be predecisional “because what
matters is the ‘VA’s final decision’ in the realignment process . . . is a serious misreading of
Sierra Club” and “would require treating everything even remotely related to VA reform efforts
as privileged.” Pl.’s Reply at 5.5 The Sierra Club Court rejected a similar argument posited by
5
Plaintiff argues that “[t]he agency’s behavior in the instant proceeding . . . shows that this cannot be the
right result,” pointing to VA’s “second and third productions” of responsive records, “totaling nearly 1,500 pages.”
Pl.’s Reply at 5 (citing Pl.’s SMF ¶¶ 15–16). Closer scrutiny of the record discredits this claim. Although VA
identified nearly 1,500 pages of responsive records in its second and third IADs, see Swailes Decl. ¶ 25; Pl.’s SMF
¶¶ 15–16; Def.’s Resp. SMF ¶¶ 15–16, the agency appears to have withheld a substantial portion of these documents
pursuant to Exemptions 5 and 6. For example, VA’s August 2020 IAD identified 676 pages of responsive records
and five responsive Excel sheets, Swailes Decl. ¶ 25; Pl.’s SMF ¶ 15; Def.’s Resp. SMF ¶ 15, but the parties
25
the plaintiff in that case, that allowing agencies to withhold documents based on the theoretical
possibility of changes to them, regardless of the practical consequences, “would permit [an
agency] to stamp every document ‘draft,’ thereby protecting even final agency decisions and
creating ‘secret [agency] law.’” 141 S. Ct. at 788 (second alteration in original) (quoting Sears,
421 U.S. at 153). The Court regarded this threat as minimal because “determining whether an
agency’s position is final . . . is a functional rather than formal inquiry,” noting that “[i]f the
evidence establishes that an agency has hidden a functionally final decision in draft form, the
deliberative process privilege will not apply,” but the defendant agency had not “engage[d] in
such a charade.” Id. Nor has VA. To the contrary, the record shows that VA continues to refine
its methodology as the nationwide market assessments progress and will revisit its evaluation of
the pilot markets as more information emerges.
Nor does the common-sense conclusion that these seven documents are not final in either
function or form indicate, as plaintiff suggests, see Pl.’s Reply at 5, that all records related to the
National Realignment Strategy are necessarily exempt from disclosure. Each withheld document
that relates to the National Realignment Strategy must be assessed in the “administrative
context” that produced it and in light of its function within the agency’s decisionmaking process.
Sierra Club, 141 S. Ct. at 786. As applied here, those factors indicate that the pilot market
assessment and briefing documents are not final, but that determination does not foreclose a
future finding that records related to another, distinct component of the National Realignment
Strategy, for example, VA’s development of the criteria to be published in the Federal Register,
must be disclosed.
represented to the Court that this IAD “withh[eld] 672 pages of responsive records and 5 Excel sheets in full under
FOIA Exemption 5 and the deliberative process privilege, as well as FOIA Exemption 6,” while “[f]our pages were
released in part,” Sept. 4 JSR at 1.
26
Plaintiff next challenges VA’s claim that the seven documents are predecisional with
respect to “each of the markets that were the subject of the three pilot market assessments.”
Def.’s Reply at 5; see Pl.’s Opp’n at 10–11; Pl.’s Reply at 6–7. As support, plaintiff argues that,
because “[t]he agency never intended to treat the pilot studies . . . as the basis for final criteria
and recommendations for the national realignment strategy,” but rather “undertook the pilot
studies to develop a uniform methodology,” the status of the pilot market assessments’ findings
as to the test markets is irrelevant. Pl.’s Reply at 7 (internal quotation marks omitted); see also
Pl.’s Opp’n at 10–11 (characterizing the pilot market assessments as “final work product,
delivered to [VA] by its contractor, which concern the methodology adopted for the nation-wide
market assessment process” (emphasis omitted)).
Even taking plaintiff’s narrow view of the role played by the pilot market assessments,
application of the draft methodology to the pilot markets was central to “allow[ing] [the agency]
to fully understand if the methodology was appropriate for use in a standardized manner,”
Stuppy Decl. ¶ 9, and these components of the reports are therefore predecisional to the final
methodology. Moreover, VA’s declarations make clear that the agency used the pilot market
assessments for purposes beyond development of the methodology, for example, to consider
which types of recommendations and reforms the agency might be interested in pursuing and
how to present its findings and recommendations in its eventual reports to Congress and the AIR
Commission. See Stuppy Decl. ¶¶ 9–10. These actual uses of the records by the agency, not
VA’s purported intentions in undertaking the pilot market assessments, are the relevant
considerations for Exemption 5 purposes. See, e.g., Sierra Club, 141 S. Ct. at 788 (looking to
documents’ “function[]” within an agency’s decisionmaking process); Ctr. for Biological
Diversity, 279 F. Supp. 3d at 147 (emphasizing “the role played by the documents at issue in the
27
course of [the deliberative process to which they relate]” in determining whether Exemption 5
was properly asserted (internal quotation marks omitted)). The findings and recommendations
made as to the pilot markets inform VA’s deliberations about its approach to the MAHSO
project and to identifying opportunities for improvement it wishes to explore further. That the
market-specific results in these seven records were not meant to act as VA’s final assessment of
those markets has no impact on their continuing role in the deliberative process.
Further, VA’s representation that “the geographic areas covered in the pilot market
assessments are being re-done in the larger 96-market assessment project,” Swailes Decl. ¶ 19,
contrary to plaintiff’s characterization, in fact supports the conclusion that the pilot market
assessments and briefing documents are predecisional as to the pilot markets. Regardless of
whether VA intended for the pilot studies to produce final evaluations of the subject markets or
not, the pilot studies reflect a preliminary effort to assess the conditions of those markets,
identify problems, and propose solutions. VA is in the process of reassessing those very
conclusions in the same markets. The pilot market assessments’ market-specific content, then, is
plainly predecisional. See, e.g., Judicial Watch, Inc., 847 F.3d at 739; Pavement Coatings Tech.
Council v. U.S. Geological Surv., 436 F. Supp. 3d 115, 127 (D.D.C. 2019) (finding documents
that “reflect[ed]” agency employees’ “thoughts regarding draft documents and preliminary
analyses of scientific studies and results” predecisional); Sack v. CIA, 49 F. Supp. 3d 15, 22–23
(D.D.C. 2014) (deeming predecisional withheld documents that “discuss[ed] progress or actions
taken on recommendations” given to an agency by an expert panel because the documents “were
part of the Agency’s ongoing process of evaluating recommendations made . . . and assessing
programmatic changes” (internal quotation marks omitted)).6
6
Plaintiff’s efforts to distinguish Stalcup v. CIA, 768 F.3d 65 (1st Cir. 2014), a case cited by VA for the
proposition that “[a] decision cannot be considered final if it is subject to change,” Def.’s Reply at 5, are without
28
In short, the pilot market assessments and briefing documents about three test markets
represent a methodology for conducting uniform, nationwide market assessments, which
methodology is subject to change and indeed, has already been revised, and the assessments
themselves are currently in the process of being reexamined. The assessments will inform VA’s
determination of how to approach the ninety-six VISN market assessments, the types of
recommendations to pursue, and how to present that information to agency leadership, Congress,
and the public. They have no operative legal effect, their actual use by VA in the course of
carrying out the MAHSO analysis notwithstanding. All of these factors show that the seven
contested records are predecisional.
(b) Pilot Market Assessments and Briefing Documents Are
Deliberative
Plaintiff next asserts that the seven documents “cannot be ‘deliberative’ because they do
not ‘make recommendations or express opinion on legal or policy matters’” and “do not reflect
the ‘give-and-take of the consultative process.’” Pl.’s Opp’n at 11 (first quoting Vaughn v.
Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975); then quoting Coastal States, 617 F.2d at 867). In
plaintiff’s view, “the pilot studies, and related briefing documents, do not reflect ‘internal
deliberations on the advisability of any particular course of action,’ such as finalizing
realignment criteria or other recommendations for public comment and congressional or
presidential consideration.” Id. (quoting Pub. Citizen, Inc., 598 F.3d at 875); see also Pl.’s Reply
merit. The First Circuit in Stalcup found supplemental reports prepared by the CIA in response to “new data” on a
particular issue previously studied to be predecisional because, in preparing the supplements, the agency “undertook
to determine whether its prior assessment was accurate or whether it needed to change its position.” Stalcup, 768
F.3d at 71–72. Unlike the requester in Stalcup, plaintiff seeks the original assessment of the pilot markets, not the
revised assessments that are currently in progress. Thus, plaintiff’s claim that VA’s “reassessment of the three
geographic markets chosen for the pilot studies is decidedly not an attempt to supplement or modify the outcomes of
those assessments,” Pl.’s Reply at 7, is inapposite. Moreover, the court’s decision relied not, as plaintiff contends,
on the agency’s “attempt to supplement or modify” its earlier report, id., but instead on the fact that the later
documents were “prepared for the specific purpose of aiding the agency in its [forthcoming] determination,” 768
F.3d at 72 (internal quotation marks and citation omitted). In other words, even though the supplements revisited an
earlier draft report, none of the drafts reflected the agency’s final decision on the issue discussed. The same is true
of the pilot market assessments’ explication of conditions in the test markets and market-specific recommendations.
29
at 8 (challenging VA’s claim that the pilot studies are “inextricably intertwined with the draft
market assessments currently underway” (quoting Def.’s Reply at 6–7)).7
This argument construes the scope of the deliberative materials encompassed by
Exemption 5 too narrowly. The D.C. Circuit has long held that Exemption 5 “covers
recommendations, draft documents, proposals, suggestions, and other subjective documents
which reflect the personal opinions of the writer rather than the policy of the agency,” Coastal
States, 617 F.2d at 866; see also Pub. Citizen, Inc., 598 F.3d at 875, and that the universe of
covered agency decisions extends “not only to official agency policies but also to agency
decisions more generally,” Pavement Coatings Tech. Council, 436 F. Supp. 3d at 127 (citing
Reliant Energy Power Generation, Inc. v. FERC, 520 F. Supp. 2d 194, 205 (D.D.C. 2007)).
Here, the pilot market assessments and briefing documents relate to VA’s choice of methodology
to carry out the market assessments, the types of improvement opportunities to pursue, and how
to present its findings to the AIR Commission, Congress, and the public. Decisions of this ilk
7
In making this argument, plaintiff points to two alleged inconsistencies in VA’s declarations, see Pl.’s
Opp’n at 9–10, 10 n.5; Pl.’s Reply at 4, 8, 8 n.1, both of which are answered by examining the cherry-picked
statements in context. Plaintiff first asserts that the declarations’ claim that “[t]he purpose of the pilot market
assessments . . . was solely to test and refine the market assessment methodology for performing comprehensive
market assessments,” Stuppy Decl. ¶ 7 (emphasis omitted); see also id. ¶ 6, stands in tension with VA’s assertion
that the pilot studies are part of the deliberative processes underlying the National Realignment Strategy, see, e.g.,
Vaughn Index at 2. These statements, read in the context in which they appear, of describing the Pilot Study
Contract, the focuses of its evaluations, and the steps taken to carry out the pilot studies, see Stuppy Decl. ¶¶ 6–7,
indicate only that the pilot market assessments were designed to develop a process for performing the market
assessments nationwide and reporting their outcomes rather than to generate substantive evaluations of the markets
studied. They do not imply, as plaintiff suggests, that VA’s use of the deliverables would be rigidly confined to
consideration of the methodology in a vacuum. The declarations’ characterization of the pilot market assessments as
informing the process by which VA would undertake the balance of the MAHSO analysis is fully consistent with the
agency’s representation that these records contribute to the National Realignment Strategy.
Plaintiff next contends that VA’s claim that “[t]he information used and analyzed in conducting the pilot
assessment is/will be used in the larger 96-market assessment project and is inextricably intertwined with the
ongoing market assessments,” Swailes Decl. ¶ 18, contradicts what plaintiff portrays, without quoting the challenged
portion of the cited declaration, as “testimony, which indicates the only aspect of the pilot studies imported into the
subsequent nation-wide assessments is the uniform ‘methodology,’” Pl.’s Opp’n at 10 n.5 (citing Stuppy Decl. ¶¶ 6–
7); see also Pl.’s Reply at 8 n.1. Even taking plaintiff’s description of this testimony as true, no contradiction exists.
Common sense dictates that, if VA has elected to use a subsequent version of the methodology tested in the pilot
market assessments to conduct its final market assessments, including of the three test markets, the same data and
factual information will be relevant to those studies. This reality is not inconsistent with VA’s representation that
the analysis and conclusions drawn from those sources in the pilot market assessments will not be carried over into
its final studies because it is in the process of reevaluating those elements.
30
are regularly held to fall within the scope of Exemption 5 even though they may not be “final” or
“official” decisions of policy or law.8 Plaintiff’s contention that the pilot market assessments
and briefing documents must have “some broader function and significance . . . in the overall
scheme of agency decisionmaking,” Pl.’s Reply at 8, is thus mistaken. VA has shown that it
continues to build on the methodology proposed in these records as it completes the MAHSO
analysis, and that these records inform its “refine[ment]” of not only the methodology, but also
the types of substantive recommendations that may be made in relation to each VISN and the
information that may be included in its market assessment reports. Stuppy Decl. ¶ 9; see also
supra Part III.A.2, 3.a. The deliberative process privilege requires nothing more.
In sum, the pilot market assessments and briefing documents are both predecisional and
deliberative, and VA properly invoked Exemption 5’s deliberative process privilege to justify its
withholding of information from these records.
B. Foreseeable Harm
Plaintiff next contends that VA has “fail[ed] to satisfy the . . . foreseeable harm
standard,” Pl.’s Opp’n at 21, under the FOIA Improvement Act of 2016 because the agency has
not “offer[ed] factual support for the supposed harms” it claims would result from disclosure, id.
at 19 (emphasis omitted), or “specifically tie[d] the expected harms to the records at issue . . . in
a reasonable manner,” id. at 21; see also Pl.’s Reply at 13–15. The FOIA Improvement Act
provides that “[a]n agency shall withhold information . . . only if the agency reasonably foresees
that disclosure would harm an interest protected by” one of the nine FOIA exemptions. 5 U.S.C.
8
See, e.g., Ecological Rights Found., 2021 WL 535725, at *15 (“[A]n agency’s consideration of what
information to present to external parties and how to present it is a [protected agency] decision in itself[.]”); Husch
Blackwell LLP v. EPA, 442 F. Supp. 3d 114, 122–23 (D.D.C. 2020) (holding “materials preparing officials for
congressional testimony and draft responses to Congress” exempt from disclosure under the deliberative process
privilege (internal quotation marks omitted)); Urban Air Initiative, Inc. v. EPA, 271 F. Supp. 3d 241, 261 (D.D.C.
2017) (finding that agency decisions about a study preliminary to creation of “an updated emissions model” were
“exactly the type of agency judgments that the deliberative process privilege protects”).
31
§ 552(a)(8)(A). This provision requires agencies withholding information under an exemption to
show not only that a withheld record “falls within a FOIA exemption,” but also “that the agency
‘reasonably foresees that disclosure would harm an interest protected by [the] exemption.’”
Machado Amadis, 971 F.3d at 370 (alteration in original) (quoting 5 U.S.C. § 552(a)(8)(A)(i)(I)).
An agency successfully makes this second, “heightened” showing, Judicial Watch, Inc. v.
U.S. Dep’t of Com., 375 F. Supp. 3d 93, 100 (D.D.C. 2019), by “‘identify[ing] specific harms to
the relevant protected interests that it can reasonably foresee would actually ensue from
disclosure of the withheld materials’ and ‘connect[ing] the harms in [a] meaningful way to the
information withheld,’” Ctr. for Investigative Reporting, 436 F. Supp. 3d at 106 (third alteration
in original) (quoting Judicial Watch, Inc. v. U.S. Dep’t of Justice (“Judicial Watch II”), Civ. A.
No. 17-0832 (CKK), 2019 WL 4644029, at *5 (D.D.C. Sept. 24, 2019)); see also H.R. Rep. No.
114-391, at 9 (2016) (“An inquiry into whether an agency has reasonably foreseen a specific,
identifiable harm that would be caused by a disclosure would require the ability to articulate both
the nature of the harm and the link between the specified harm and specific information
contained in the material withheld.”). Agencies therefore “must provide more than ‘nearly
identical boilerplate statements’ and ‘generic and nebulous articulations of harm.’” Ctr. for
Investigative Reporting, 436 F. Supp. 3d at 106 (quoting Judicial Watch II, 2019 WL 4644029,
at *4–5).
“[T]he agency’s burden to demonstrate that harm would result from disclosure may shift
depending on the nature of the interests protected by the specific exemption with respect to
which a claim of foreseeable harm is made.” Ecological Rights Found., 2021 WL 535725, at
*32 (citing Rosenberg v. Dep’t of Def., 442 F. Supp. 3d 240, 259 (D.D.C. 2020); S. Rep. No.
114-4, at 8 (2015)). To demonstrate foreseeable harm with respect to exemptions under the
32
deliberative process privilege, “[t]he agency ‘cannot simply rely on generalized assertions that
disclosure could chill deliberations,’” but instead “must ‘provide context or insight into the
specific decision-making processes or deliberations at issue, and how they in particular would be
harmed by disclosure.’” Id. (first quoting Machado Amadis, 971 F.3d at 371; and then quoting
Ctr. for Investigative Reporting, 436 F. Supp. 3d at 107). Contrary to plaintiff’s characterization,
however, this requirement for an agency to describe assertions of foreseeable harm with
specificity and to contextualize the harms anticipated does not require an agency to “offer factual
support for the supposed harms,” Pl.’s Opp’n at 19 (emphasis omitted); see also Pl.’s Reply at
14, as the D.C. Circuit’s recent decision in Machado Amadis v. U.S. Department of State, 971
F.3d 364 (D.C. Cir. 2020), clearly illustrates.
The D.C. Circuit in Machado Amadis considered the adequacy of an agency’s foreseeable
harm showing under the deliberative process privilege. The agency in that case produced, in
response to the plaintiff’s FOIA request, a series of “Blitz Forms,” documents used to adjudicate
FOIA appeals, with redactions under the deliberative process privilege. 971 F.3d at 369–71. In
support of the redactions, the agency’s affidavit stated that the withheld materials revealed “line
attorneys’ evaluations, recommendations, discussions, and analysis which are prepared for
senior-level review and decisionmaking,” id. at 370 (internal quotation marks omitted), and
asserted that disclosure of this information “would discourage line attorneys from candidly
discussing their ideas, strategies, and recommendations, thus impairing the forthright internal
discussions necessary for efficient and proper adjudication of administrative appeals,” id. at 371
(alteration and internal quotation marks omitted). The D.C. Circuit deemed this showing of
foreseeable harm sufficient, without any further factual proffer by the agency, because the
agency “specifically focused on the information at issue” and properly “concluded that
33
disclosure of that information would chill future internal discussions.” Id. (internal quotation
marks omitted); see also Ecological Rights Found., 2021 WL 535725, at *32.
VA’s Vaughn Index and declarations in this case make a similarly adequate showing. As
in Machado Amadis, VA identifies the contents of the documents with sufficient particularity.
See Vaughn Index at 1–24. The agency affirmatively concludes, with respect to each of the
seven challenged records, that disclosure would harm an interest protected by the privilege. See
Sierra Club, 141 S. Ct. at 785; Machado Amadis v. Dep’t of Justice, 388 F. Supp. 3d 1, 18–19
(D.D.C. 2019) (summarizing the relevant interests of the privilege); supra Part III.A.1. VA first
states that disclosure of the withheld information “would chill future agency deliberations,
causing harm to the agency’s ability to obtain a comprehensive and thoughtful analysis that
considers all aspects of the issues affected.” Vaughn Index at 3; see also id. at 6, 9, 13, 16, 19–
20, 23; Swailes Decl. ¶ 21. It further submits that “[r]eleasing data” used in the pilot market
assessments “without knowledge of how that data is being used or linked to VA
recommendations would undermine the project as the data may be misleading or misinterpreted,
causing individuals to draw conclusions about VA action that may not be accurate,” while
releasing “recommendations in the pilot studies that ultimately may not be made or proposed” in
the National Realignment Strategy would generate confusion about VA’s plans for the continued
provision of veteran health care in certain markets. Vaughn Index at 3; see also id. at 6, 10, 13,
16–17, 20, 23. In the agency’s view, the resulting speculation by the public “could further affect
VA’s ability to negotiate for private care” by exposing vulnerabilities in VA’s existing services
and could “create concern among patients, employees, and the community generally” with
respect to the implications of the non-binding, predecisional recommendations made in the pilot
market assessments. Vaughn Index at 3–4; see also id. at 7, 10, 13–14, 17, 20, 23–24; Stuppy
34
Decl. ¶¶ 13–16; Swailes Decl. ¶ 21. Finally, VA contends that “the moment a pilot assessment is
released, interested parties may interpret the pilots and try to influence the working
recommendations or opportunities (positively or negatively) identified in the pilot market
assessment or the currently underway market assessments. Shifting the focus to individual
interests would undermine the goal of the ongoing assessments, i.e., the creation of high
performing networks that provide high-quality, readily accessible care for Veterans.” Stuppy
Decl. ¶ 12; see also Swailes Decl. ¶ 21. These predicted results of disclosure are “exactly what
the privilege seeks to prevent.” Machado Amadis, 971 F.3d at 371; see also Ecological Rights
Found., 2021 WL 535725, at *32.9
Like the declarations found sufficient in Machado Amadis, VA also links these specified
harms to “specific information contained in the material withheld.” Judicial Watch II, 2019 WL
4644029, at *4 (internal quotation marks and citation omitted). For each of the seven
documents, VA explains that disclosure “would chill future agency deliberations” by impeding
“the agency’s ability to obtain [from staff or external consultants] a comprehensive and
thoughtful analysis that considers all aspects of the issues affected” and causing VA staff
engaged in the ongoing market assessments “to be subjected to pressure” from external
stakeholders “as they evaluate the data and make recommendations,” to the detriment of the
agency’s efforts to act objectively. Swailes Decl. ¶ 21; see also Vaughn Index at 3–4, 6–7, 9–10,
13–14, 16–17, 20, 23. VA further indicates that release could lead external stakeholders to
9
Plaintiff contends that VA’s assertion of public confusion or concern as a potential harm of disclosure
carries no weight because the MISSION Act “opened the realignment process to public participation.” Pl.’s Reply
at 14; see also Pl.’s Opp’n at 20. While the MISSION Act subjects VA’s submission of criteria and
recommendations to scrutiny by the public, the AIR Commission, Congress, and eventually the President, this
feedback from external stakeholders begins only after VA finalizes its criteria and recommendations internally. See
supra Part I.A. Disclosure of VA’s intra-agency deliberations preceding its final determination of the criteria and
recommendations that will be submitted for public scrutiny thus continues to pose risks associated with public
confusion or misinterpretation, the MISSION Act’s provision for public participation in the formation of the
National Realignment Strategy notwithstanding.
35
“draw erroneous conclusions” about VA’s plans for reform in one of the test markets or on a
national scale, as compared to the recommendations VA eventually includes in its National
Realignment Strategy. Swailes Decl. ¶ 21; see also Stuppy Decl. ¶¶ 15–16; Vaughn Index at 3,
6, 9, 13, 16, 20, 23–24. This explanation “specifically connects disclosure of [the records] to a
tangible chilling effect,” here among VA staff involved in the agency’s ongoing market
assessments, and a concrete risk of generating public confusion. Judicial Watch, Inc. v. U.S.
Dep’t of Justice, 487 F. Supp. 3d 38, 47 (D.D.C. 2020) (finding a similar level of detail sufficient
in light of Machado Amadis); see also Ecological Rights Found., 2021 WL 535725, at *33
(same). The standard of Machado Amadis requires nothing more.
C. Segregability
FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt” from
disclosure. 5 U.S.C. § 552(b). Producing segregable information is essential for agencies’ FOIA
compliance, and “district courts cannot approve withholding exempt documents ‘without making
an express finding on segregability.’” Machado Amadis, 971 F.3d at 371 (quoting Morley v.
CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)); see also Stolt-Nielsen Transp. Grp. Ltd. v. United
States, 534 F.3d 728, 734 (D.C. Cir. 2008) (“[B]efore approving the application of a FOIA
exemption, the district court must make specific findings of segregability regarding the
documents to be withheld.” (internal quotation marks and citation omitted)); Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (same).
In evaluating segregability, “[a]gencies are entitled to a presumption that they complied
with the obligation to disclose reasonably segregable material.” Sussman, 494 F.3d at 1117.
Even under that presumption, “the agency must provide a ‘detailed justification’ for [the exempt
material’s] non-segregability,” but need not “provide so much detail that the exempt material
36
would be effectively disclosed.” Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776 (D.C.
Cir. 2002) (quoting Mead Data Ctr., Inc. v. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir.
1977)). Affidavits attesting to the agency’s “line-by-line review of each document withheld in
full” and the agency’s determination “that no documents contained releasable information which
could be reasonably segregated from the nonreleasable portions,” in conjunction with a Vaughn
index describing the withheld record, suffice. Id. (internal quotation marks omitted); see also
Loving v. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008) (stating that “the description of the
document set forth in the Vaughn index and the agency’s declaration that it released all
segregable material” are “sufficient for [the segregability] determination”).10
To this end, VA has averred that, upon revision of the First IAD, it “re-reviewed the four
hundred and eighty-nine pages” of the seven challenged records and “released the five pages
containing the [pilot market assessment] methodology in full” as well as “additional pages that
repeated methodology information” and “several pages that essentially had no substantive
content and release of which would not harm the agency,” with redactions to twenty-two of these
pages. Swailes Decl. ¶ 26; see Vaughn Index at 1–24. As to the pages withheld in full, the
agency represents that, when issuing the First IAD, it “determin[ed] the content” of the pages,
“including factual information,” and “determined that [it] was unable to reasonably segregate
any non-exempt material as the remaining portion would have minimal or no informative or
substantive content, so as to render the document essentially meaningless.” Swailes Decl. ¶ 23.
10
The FOIA Improvement Act of 2016 added another provision concerning segregability: An agency shall
“(I) consider whether partial disclosure of information is possible whenever the agency determines that a full
disclosure of a requested record is not possible; and (II) take reasonable steps necessary to segregate and release
nonexempt information.” 5 U.S.C. § 552(a)(8)(A)(ii). The D.C. Circuit has interpreted subsection (b) of FOIA to
be satisfied by affidavits attesting to the agency’s “line-by-line review of each document withheld in full” and the
agency’s determination “that no documents contained releasable information which could be reasonably segregated
from the nonreleasable portions.” Johnson, 310 F.3d at 776 (internal quotation marks omitted). The FOIA
Improvement Act’s new provision on segregability “appears to require no more than that.” Ctr. for Investigative
Reporting, 436 F. Supp. 3d at 115.
37
It states, for each of the contested documents, that any potentially non-exempt factual
information and data is “inextricably intertwined” with privileged information, “as it contributes
to the rationale for making the proposed recommendations and methodology used in the pilots,”
Vaughn Index at 4; see also id. at 6, 9, 13, 16, 19, 23, and that “[t]he information used and
analyzed in conducting the pilot assessments is/will be used in the larger 96-market assessment
project” and thus “is inextricably intertwined with the ongoing market assessments,” Swailes
Decl. ¶ 18; see also Vaughn Index at 2, 5, 8, 12, 15, 18, 22. VA’s declarations and Vaughn
Index are therefore sufficient to establish non-segregability of the disputed exempt records.
Plaintiff raises three challenges to this conclusion. First, plaintiff disputes VA’s claim
that factual information within the documents is exempt, contending that VA has failed to
“explain in detail why factual and deliberative material are inextricably intertwined.” Pl.’s Reply
at 15 (internal quotation marks omitted); see also Pl.’s Opp’n at 22. “[W]ell-established law in
this Circuit [provides] that the deliberative process privilege operates to shield from disclosure
agency decision-making reflecting the collection, culling and assessment of factual information
or . . . data.” Ctr. for Biological Diversity v. EPA, 369 F. Supp. 3d 1, 20 (D.D.C. 2019)
(collecting cases); see also Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504,
513 (D.C. Cir. 2011) (holding exempt factual information “culled . . . from the much larger
universe of facts” available because this “reflect[ed] an exercise of judgment as to what issues
are most relevant to the pre-decisional findings and recommendations” (internal quotation marks
omitted)); Pavement Coatings Tech. Council, 436 F. Supp. 3d at 129 (similar); Goodrich Corp.,
593 F. Supp. 2d at 189 (“[E]ven if the data plugged into the model is itself purely factual, the
selection and calibration of data is part of the deliberative process to which Exemption 5
applies[.]”); Reliant Energy Power Generation, Inc., 520 F. Supp. 2d at 205–06 (finding
38
“spreadsheets and tables that analyze raw data” exempt from disclosure (alteration and internal
quotation marks omitted)). The data and facts chosen by VA, or its consultant, to test the pilot
market assessment methodology are therefore properly withheld under Exemption 5 independent
of their relationship to the remainder of the seven documents. Moreover, courts in this Circuit
routinely find “inextricably intertwined” language of a similar specificity to that proffered by VA
to be sufficient for segregability purposes. See, e.g., Elec. Frontier Found. v. Dep’t of Justice,
739 F.3d 1, 12–13 (D.C. Cir. 2014); Ecological Rights Found., 2021 WL 535725, at *34 (relying
on similar “inextricably intertwined” language in agency’s declarations); Ctr. for Biological
Diversity, 369 F. Supp. 3d at 26 (same).
Second, plaintiff contends that VA’s revision of the First IAD demonstrates that the
agency “has already once overredacted records and thus failed to conduct the necessary line-by-
line review for non-exempt material.” Pl.’s Opp’n at 22–23; see also Pl.’s Reply at 16. An
agency’s revision of its previous segregability determination does not, as plaintiff suggests, raise
an inference that the agency has failed to comply with its obligation to release all reasonably
segregable, non-exempt information. To the contrary, supplemental releases of information
“evidence[] a good-faith effort on the [agency’s] part to segregate nonexempt information where
possible.” Schoenman v. FBI, 575 F. Supp. 2d 136, 161 (D.D.C. 2008); see also Ecological
Rights Found., 2021 WL 535725, at *34 (finding the agency’s representation that it “provided
supplemental releases of information where possible” to support the conclusion that it had
released all reasonably segregable information (internal quotation marks omitted)). Nor does
VA’s revisiting of its earlier determination rebut the presumption that the agency has fulfilled its
segregability obligations. See Sussman, 494 F.3d at 1117.
39
Finally, plaintiff asserts that VA “is mistaken that it need not disclose segregable material
that it finds ‘meaningless’ or of ‘minimal or no informative or substantive content.’” Pl.’s Opp’n
at 23 (quoting Swailes Decl. ¶ 23); see also Pl.’s Reply at 16–17. As plaintiff accurately recites,
however, an agency need not release otherwise-segregable information “if it can demonstrate
that disclosure of the non-exempt portion of the document would result in the release of ‘only
incomplete, fragmented, unintelligible sentences composed of isolated meaningless words.’”
Cause of Action Inst. v. U.S. Dep’t of Com., Civ. A. No. 1:19-cv-778 (CJN), 2021 WL 148386, at
*11 (D.D.C. Jan. 14, 2021) (quoting Brown v. Dep’t of Justice, 734 F. Supp. 2d 99, 111 (D.D.C.
2010)). Plaintiff misinterprets both the burden placed on an agency by this standard and the
import of VA’s assertion that the non-exempt, segregable portions of the seven contested
records, if released independent of the exempt material, would be “essentially meaningless.”
Swailes Decl. ¶ 23. To carry its initial burden to demonstrate that it has complied with its
segregability obligations, “the agency need only show with ‘reasonable specificity’ that the
information withheld cannot be further segregated,” triggering the presumption that it has
complied with its segregability obligations. Cause of Action Inst., 2021 WL 148386, at *11
(quoting Armstrong v. Exec. Off. of President, 97 F.3d 575, 580 (D.C. Cir. 1996)). As explained
above, VA has met this requirement. The agency’s statement that any disclosure of non-exempt,
segregable information would result in release only of an “essentially meaningless” document
with “minimal or no informative or substantive content,” Swailes Decl. ¶ 23, suffices to show
that the withheld information could not be further segregated, see Cause of Action Inst., 2021
WL 148386, at *11 (finding an agency’s declaration that release of non-exempt information
“would have resulted in disclosure of ‘a meaningless set of words or phrases which have no or
minimal information content’” sufficient). The burden then shifts to plaintiff to “produce a
40
‘quantum of evidence’ to rebut th[e] presumption.” Am. Ctr. for L. & Justice v. U.S. Dep’t of
State, 330 F. Supp. 3d 293, 306 (D.D.C. 2018) (quoting Sussman, 494 F.3d at 1117). Plaintiff
states that “the records at issue likely contain factual information that will remain both
meaningful and informative, even if heavily redacted,” Pl.’s Reply at 23 (emphasis omitted), but
offers nothing beyond this speculation that might rebut the presumption. VA has thus
demonstrated that it complied with its segregability obligations, and the disputed records are
properly withheld.
IV. CONCLUSION
For the foregoing reasons, VA’s Motion for Summary Judgment is granted and plaintiff’s
Cross-Motion for Summary Judgment is denied. VA has justified its withholdings of 451 full
pages of the seven contested records and redactions from twenty-two of the thirty-eight released
pages under Exemption 5’s deliberative process privilege, shown that foreseeable harm would
result from further disclosures, and complied with its segregability obligations.
An order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: April 20, 2021
__________________________
BERYL A. HOWELL
Chief Judge
41