Judicial Watch, Inc. v. United States Department of Housing and Urban Development , 20 F. Supp. 3d 247 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
JUDICIAL WATCH, INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 12-1785 (ESH)
)
UNITED STATES DEPARTMENT )
OF HOUSING AND URBAN DEVELOPMENT, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
Judicial Watch, Inc. brings this action against the United States Department of Housing
and Urban Development (“HUD”), under the Freedom of Information Act (“FOIA”), 5 U.S.C. §§
552, et seq. In response to a FOIA request made by plaintiff, defendant produced some
documents in full, but withheld or redacted others pursuant to Exemptions 4, 5, and 6 to FOIA.
Plaintiff now challenges the propriety of withholding and redacting these documents, as well as
the adequacy of defendant’s search. Presently before the Court are the parties’ cross-motions for
summary judgment. (Def.’s Mot. for Summ. J., Nov. 11, 2013 [ECF No. 20-1] (“Def.’s Mot.”);
Pltf.’s Cross-Mot. for Summ J., Dec. 18, 2013 [ECF No. 22] (“Pltf.’s Mot.”).) For the reasons
discussed below, the Court will grant defendant’s motion for summary judgment and will deny
plaintiff’s motion.
BACKGROUND
On April 4, 2012, plaintiff submitted FOIA requests to HUD, the Department of Justice,
the Consumer Financial Protection Bureau, and the Federal Housing Agency seeking:
1
1. All communications with or about St. Paul, Minnesota, its residents, landlords, low-
income properties or employees, specifically those exchanges:
a. relating to the city’s recent petition for certiorari to the U.S. Supreme Court,
including the petition’s withdrawal in February 2012;
b. regarding “disparate impact” theory or analysis in the housing, landlord-
tenant, or mortgage arena;
c. involving any member of the U.S. Senate’s Democratic Policy &
Communications Committee, the House Democratic Caucus, or the White
House, and their respective staffs, and;
d. involving third parties such as the National Low Income Housing Coalition,
Thomas Goldstein, or Walter Mondale and their respective staffs;
2. All invoices for travel, food, lodging, communications, or entertainment expenses
incurred in connection with any “disparate impact” lawsuit.
(Def.’s Statement of Material Facts, Nov. 13, 2013 [ECF No. 20-2] (“SOF”), at ¶ 1). When HUD
did not produce any documents, plaintiff filed a complaint seeking to compel their production on
November 2, 2012. (See Compl. [ECF No. 11], at 3.)
On December 18, 2012, defendant produced documents responsive to plaintiff’s FOIA
request. (Declaration of Deena S. Jih, Nov. 13, 2013 [ECF No. 20-3] (“Jih Decl.”), at ¶ 16.)
These documents were found during searches conducted by HUD employees within the eleven
departments deemed “most likely [to] have responsive documents.” (Id. at ¶¶ 12-15.)
Additional responsive documents were found during the course of searches performed in
compliance with a broad congressional inquiry into HUD’s activities which it turned over to
plaintiff on March 4, 2013. (Id. at ¶ 17.) In addition to the documents provided in unredacted
form, defendant also provided plaintiff with a lengthy Vaughn index identifying more than five
hundred redacted or withheld documents. (See SOF at ¶ 8; Def.’s Vaughn Index for Challenged
Withholdings, Ex. N., Nov. 13, 2013 [ECF No. 20-5] (“Vaughn Index.”)) Each entry in
defendant’s Vaughn index included: (1) a document number; (2) a brief description of the
document (including the author of the document, the recipient(s) of the document, and the date
2
and time the document was sent if applicable); (3) the specific exemption relied upon for
withholding or redacting the document (e.g. “(b)(5)”); and (4) a narrative “justification” for
withholding or redacting the document.
After reviewing defendant’s Vaughn index, plaintiff informed defendant that it planned to
challenge the redactions and withholdings identified therein. (Def.’s Mot. at 3.) In response,
defendant re-examined all of the documents listed in its Vaughn index. Based on this review,
defendant decided to release two documents either in full or with fewer redactions. (SOF ¶ 11.)
Beyond these two documents, however, defendant informed plaintiff that it would stand by the
other redactions and withholdings identified in its Vaughn index. (Def.’s Mot. at 3.)
Defendant now moves for summary judgment on the grounds that it has fulfilled its
statutory duty by turning over all of the documents required and sufficiently describing those
documents that it has withheld or redacted in a Vaughn index. Plaintiff cross-moves for
summary judgment on the grounds that (1) defendant’s search for responsive documents was
inadequate and (2) defendant’s narrative justifications articulated in its Vaughn index are legally
insufficient to justify withholding or redacting documents under Exemption 5 to FOIA.
ANALYSIS
I. LEGAL STANDARD
The Court may grant summary judgment “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
moving party bears the burden of demonstrating an absence of a genuine issue of material fact in
dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving
party’s affidavits may be accepted as true unless the opposing party submits his own affidavits or
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declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.
Cir. 1992).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009) (citations
omitted). “In a FOIA case, summary judgment may be granted to the government if ‘the agency
proves that it has fully discharged its obligations under the FOIA, after the underlying facts and
the inferences to be drawn from them are construed in the light most favorable to the FOIA
requester.’” Fischer v. U.S. Dep’t of Justice, 596 F. Supp. 2d 34, 42 (D.D.C. 2009) (quoting
Greenberg v. U.S. Dep’t of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998)). “An agency that has
withheld responsive documents pursuant to a FOIA exemption can carry its burden to prove the
applicability of the claimed exemption by affidavit.” Larson v. Dep’t of State, 565 F.3d 857, 862
(D.C. Cir. 2009) (citing Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 926
(D.C. Cir. 2003)). “Summary judgment is warranted on the basis of agency affidavits when the
affidavits describe the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by evidence of agency bad faith.”
Larson, 565 F.3d at 862 (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)); see also
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Finally, “an agency’s
justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ ”
Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)).
II. ADEQUACY OF DEFENDANT’S SEARCH
The first disputed issue in this case is whether HUD conducted an adequate search for
responsive documents. “An agency fulfills its obligations under FOIA if it can demonstrate
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beyond material doubt that its search was ‘reasonably calculated to uncover all relevant
documents.’” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)
(quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). Under this standard, the
relevant question “is not whether there might exist any other documents possibly responsive to
the request, but rather whether the search for those documents was adequate” under the
particular circumstances of the case. Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.
Cir. 1984) (emphasis in original).
In order to meet this burden, an agency need not “set forth with meticulous
documentation the details of an epic search for the requested records.” Perry v. Block, 684 F.2d
121, 127 (D.C. Cir. 1982). However, it must provide a “reasonably detailed affidavit, setting
forth the search terms and the type of search performed, and averring that all files likely to
contain responsive materials . . . were searched.” Oglesby v. Dep't of the Army, 920 F.2d 57, 68
(D.C. Cir. 1990). These affidavits are “accorded a presumption of good faith.” SafeCard Servs.,
Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991). Yet, if “the record leaves substantial doubt
as to the sufficiency of the search summary judgment for the agency is not proper.” Truitt, 897
F.2d at 542.
In support of its position, HUD provides the Court with a sworn declaration from Ms.
Deena S. Jih. Jih is an Attorney Advisor at HUD responsible for providing advice to HUD’s
Freedom of Information Act Office. (Jih Decl. at ¶ 1.) Jih’s declaration describes HUD’s search
for documents responsive to plaintiff’s April 4, 2012 FOIA request in great detail. First, HUD’s
Freedom of Information Act Office identified eleven divisions that were “most likely to have
responsive documents.” 1 (Id. at ¶¶ 12-13.) Next, as is HUD’s practice, “each program’s
1
These divisions included: Office of Policy, Development, and Research; Office of Fair Housing and
Equal Opportunity—Office of Information Services and Communications; Deputy General Counsel for
5
designated FOIA liaison . . . direct[ed the] FOIA request to the appropriate subject matter experts
within their program areas.” (Id. at ¶ 14.) These “subject matter experts” then searched for
responsive documents using individualized techniques and search terms. (Id. at ¶¶ 14-15.) In
addition to this targeted search, HUD also turned over responsive documents found during the
course of searches conducted as part of a broader congressional inquiry. (Id. at ¶ 17.)
Plaintiff challenges the adequacy of defendant’s search on two grounds. First, plaintiff
argues that defendant “provides no evidence as to the search parameters – neither search
techniques nor search terms – used to conduct the search for records responsive to Plaintiff’s
FOIA request.” (Pltf.’s Mot. at 4.) Second, plaintiff argues that “each individual used his or her
own search terms and techniques [and] defendant has [therefore] failed to demonstrate how
[these] individualized search techniques and search terms used were reasonably calculated to
uncover all responsive records.” (Id. at 4-5.)
Plaintiff’s first argument is factually inaccurate. In paragraph 15 of Jih’s declaration and
its sub-paragraphs which span more than three pages in length, Jih lays out in painstaking detail
the search techniques and search terms used by each of the individual employees that it assigned
to search for responsive documents. 2 In paragraph 17, Jih similarly lays out the details of the
Enforcement and Fair Housing; Office of General Counsel – Office of Fair Housing; General Counsel;
Office of Public and Indian Housing – Financial Management Center; Office of Public and Indian
Housing – Departmental Real Estate Assessment Center; Office of Public and Indian Housing – Office of
Public Housing Investment; Office of Public and Indian Housing—Office of Public Housing Investment;
Office of Public and Indian Housing – Grants Management Center; Office of Housing – Office of Multi-
Family Asset Management Field Asset Management Division; and Office of Chief Human Capital Office
– Office of Executive Secretariat Division –Correspondence Division.
2
For example, describing the search conducted of documents belonging to HUD General Counsel Helen
Kanovsky, Jih explains, “Helen Kanovsky’s electronic files (including email) were searched by her
assistant. The following search terms were utilized in the search: ‘Magner,’ ‘Magner v. Gallagher,’ ‘St.
Paul,’ ‘disparate impact’ and ‘St. Paul,’ ‘disparate impact’ and ‘Magner’.”
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searches conducted in response to the congressional inquiry. These paragraphs provide more
than sufficient evidence for this Court to assess the adequacy of defendant’s search.
Plaintiff’s second argument is also unpersuasive. While it is always true that an agency
can engage in a more expansive search for responsive documents, the government is not required
to search everywhere a document might be. Instead, it is only required to search those places
where a document is likely to be. See Oglesby, 920 F.2d at 68; Weisberg, 745 F.2d at 1485.
Though some agencies may choose to search for responsive documents in a centralized fashion
using consistent search terms and techniques across various departments, nothing in FOIA’s text
or the relevant case law requires an agency to do so. To the contrary, it is permissible for an
agency to rely on subject matter experts to conduct individualized searches for documents when
responding to FOIA requests. See Fox News Network, LLC v. U.S. Dep’t of Treasury, 739 F.
Supp. 2d 515, 533-34 (S.D.N.Y. 2010) (expressly affirming as reasonable a “decentralized
method of processing FOIA requests” using “different search terms in different offices”).
Based on Jih’s declaration, the Court is satisfied that the searches conducted by HUD
were reasonably calculated to uncover all responsive records. 3 In the FOIA context, the
government is afforded a presumption of good faith when it provides a “reasonably detailed
affidavit, setting forth the search terms and the type of search performed, and averring that all
files likely to contain responsive materials . . . were searched.” Oglesby, 920 F.2d at 68. For the
reasons discussed above, plaintiff has failed to present sufficient evidence to overcome this
presumption. The Court therefore concludes that defendant’s search for responsive documents
was adequate as a matter of law.
3
In fact, Jih’s declaration demonstrates that defendant went above and beyond its duty by providing
responsive documents found during searches unrelated to plaintiff’s specific FOIA request. (Jih Decl. at ¶
17.)
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III. SUFFICIENCY OF DEFENDANT’S VAUGHN INDEX
Plaintiff next challenges the sufficiency of defendant’s Vaughn index arguing that
“[a]lthough [the d]efendant does provide some justification for each withheld record, each
justification is inadequate . . . .” (Pltf.’s Mot. at 7.) Moreover, in plaintiff’s view, the defendant
“failed to demonstrate that all records being withheld in their entirety are being properly
withheld . . . [because it] has submitted nothing more than a declaration and Vaughn index
chock-full of vague, conclusory statements and generalities.” (Id. at 6.) In response, defendant
maintains that the entries in its Vaughn index (along with the Jih Declaration) are both factually
accurate and legally sufficient to fulfill its duty under FOIA. (See Def.’s Reply Mem. in Support
of Def.’s Mot. for Summ J. and Mem. in Opp. to Pltf.’s Cross-Mot. for Summ. J., Jan. 23, 2014
[ECF No. 24] (“Def.’s Reply”), at 3-4.) The Court agrees with the defendant and will
accordingly grant its motion for summary judgment. 4
According to the D.C. Circuit, a Vaughn index “(1) . . . should be contained in one
document, complete in itself, (2) . . . must adequately describe each withheld document or
deletion, [and] (3) . . . must state the exemption claimed for each deletion or withheld document,
and explain why the exemption is relevant.” Founding Church of Scientology v. Bell, 603 F.2d
945, 949 (D.C. Cir. 1979). While “it is the function, not the form of the index that is important,”
Keys v. Dep’t of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987), the Court of Appeals has cautioned
that “conclusory assertions of privilege will not suffice to carry the agency’s burden . . . where
no factual support is provided for an essential element of the claimed privilege or shield. . . .”
4
Even if the Court were to agree with plaintiff and find that the Vaughn index was insufficient, summary
judgment would still not be warranted. As defendant correctly argues, “[w]ere the Court to conclude that
any document’s justification or description in the Vaughn index was insufficient . . . the proper course
would be to deny both parties’ motion for summary judgment as to that particular document . . . and to
give Defendant an opportunity to elaborate upon its description and justification . . . .” (Def.’s Reply at 3.)
8
Senate of the Com. of Puerto Rico on Behalf of Judiciary Comm. v. U.S. Dep’t of Justice, 823
F.2d 574, 585 (D.C. Cir. 1987) (internal citations and quotation marks omitted).
Plaintiff specifically challenges the redactions and withholdings made by defendant
pursuant to FOIA Exemption 5. 5 FOIA Exemption 5 permits “an agency to withhold ‘inter-
agency or intra-agency memorandums or letters which 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 the privileges
incorporated by FOIA Exemption 5 are the “deliberative process” privilege, the “attorney work
product” privilege, and the “attorney-client privilege.” Tax Analysts v. IRS, 294 F.3d 71, 76
(D.C. Cir. 2002) (citing Burka v. HHS, 87 F.3d 508, 516 (D.C. Cir. 1996)).
While there is some overlap between these privileges, each privilege protects a different
interest and requires different “essential elements.” See Senate of the Com. of Puerto Rico, 823
F.2d at 585; Judicial Watch, Inc. v. Dep’t of Homeland Sec., 926 F. Supp. 2d 121, 132 (D.D.C.
2013). Specifically, the attorney work product privilege “shields materials prepared in
anticipation of litigation or for trial by or for another party or by or for that other party’s
representative” and “should be interpreted broadly and held largely inviolate.” Judicial Watch,
Inc. v. Dep’t of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005) (internal citations and quotation
marks omitted). This privilege “extends to documents prepared in anticipation of foreseeable
litigation, even if no specific claim is contemplated.” Schiller v. NLRB, 964 F.2d 1205, 1208
(D.C. Cir. 1992), abrogated on other grounds by Millner v. Dep’t of Navy, 131 S. Ct. 1259 (Mar.
5
Defendant primarily relies on FOIA Exemption 5 in redacting and withholding responsive documents.
However, several of these documents were also redacted or withheld pursuant to other FOIA exemptions.
Though defendant argued that it had properly withheld certain information pursuant to these other
exemptions, plaintiff failed to contest these arguments in its reply. (See Def.’s Reply at 1-2.) The Court
will therefore treat any challenges to the sufficiency of defendant’s Vaughn index not related to FOIA
Exemption 5 as conceded. See Buggs v. Powell, 293 F.Supp.2d 135, 141 (D.D.C. 2003) (concluding that
the court may treat as conceded any arguments raised in a dispositive motion that the plaintiff fails to
address in his opposition).
9
7, 2011). The attorney-client privilege extends to “confidential communications from clients to
their attorneys, as well as communications from attorney to their clients containing confidential
information supplied by the client.” Am. Imm. Council v. Dep’t of Homeland Sec., 950 F. Supp.
2d 221, 243 (D.D.C. 2013) (citing Tax Analysts, 117 F.3d at 618). The deliberative process
privilege shields intra and interagency documents that are “both predecisional and deliberative.”
Mapther v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). This category of documents
includes “advisory opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated.” Loving v. Dep’t of Defense, 550
F.3d 32, 38 (D.C. Cir. 2008) (citing Dep’t of Interior v. Klamath Water Users Protective Ass’n,
552 U.S. 1, 8 (2001)).
Each entry in defendant’s Vaughn index includes the same information: (1) a document
number; (2) a brief description of the document including the author, any recipients of the
document, and the date and time the document was sent (if applicable); (3) the exemption relied
upon for withholding or redacting the document; and (4) a narrative “justification” for
withholding or redacting the document. Notably absent from these entries, however, is a specific
reference—by name—to one or more of the three privileges incorporated by FOIA Exemption 5.
Instead, Ms. Jih’s declaration states in general terms that “HUD concluded that nearly all of the
documents withheld are subject to the work product doctrine,” “many of these documents are
also subject to the attorney-client privilege,” and “many of the withheld documents [also] are
deliberative in that they relate to the process of recommending a particular course of action . . .”
(Jih Decl. at ¶¶ 21-27) (emphasis added). Plaintiff challenges the sufficiency of the entries in
defendant’s Vaughn index in three ways.
10
First, plaintiff argues that defendant’s Vaughn index is inadequate because defendant
“failed to demonstrate which specific privilege applies to which particular record.” (Pltf.’s Mot.
at 7.) However, plaintiff fails to direct this Court to any legal authority that defendant is required
to identify the relevant privilege, by name, in order to withhold or redact a document pursuant to
Exemption 5. To the contrary, courts within this jurisdiction have repeatedly emphasized that a
Vaughn index must simply “indicate[] in some descriptive way which documents the agency is
withholding and which FOIA exemptions it believes apply.” ACLU v. C.I.A., 710 F.3d 422, 432
(D.C. Cir. 2013). Under this rubric, the government’s justification for withholding or redacting a
document only must establish the existence of all the “essential elements” of a valid privilege.
See Senate of the Com. of Puerto Rico, 823 F.2d at 585; Judicial Watch, Inc. v. Dep’t of
Homeland Sec., 926 F. Supp. 2d at 132. 6 To be sure, it would have been helpful for defendant to
identify by name which specific privilege applies to which entries in its Vaughn index, as
opposed to relying on Jih’s declaration. Yet, so long as the Court is able to determine the
existence of each essential element of an incorporated privilege, defendant should not be
penalized for its failure to identify a specific privilege by name. See Gallant v. N.L.R.B., 26 F.3d
168, 173 (D.C. Cir. 1994) (“[T]he government need not justify its withholdings document-by-
document; it may instead do so category-of-document by category-of-document, so long as its
definitions of relevant categories are sufficiently distinct to allow a court to determine . . .
6
It should further be noted that merely identifying the name of the privilege upon which the government
agency seeks to rely or identifying a particular privilege and providing a conclusory description of the
document is, without question, not sufficient to discharge the government’s duty under FOIA. See Senate
of the Com. of Puerto Rico, 823 F.2d at 585 (“We do not endeavor an encompassing definition of
‘conclusory assertion’; for present purposes, it is enough to observe that where no factual support is
provided for an essential element of the claimed privilege or shield, the label ‘conclusory’ is surely apt.
The information provided by the DOJ-consisting almost entirely of each document's issue date, its author
and intended recipient, and the briefest of references to its subject matter-will not do.”)
.
11
whether the specific claimed exemptions are properly applied.”) (internal citations and quotation
marks omitted.)
Second, plaintiff argues that defendant has failed to discharge its duty under FOIA
because it “solely . . . used general ‘buzz words’ to justify its withholding.” (Pltf.’s Mot. at 7.)
Among the terms about which plaintiff complains are: “possible litigation,” “brief to be filed,”
“draft brief,” “internal deliberation,” “suggested revisions,” “conveying research,” “discussing
and weighing approaches,” and “draft internal talking points.” (Id. at 7-8.) In plaintiff’s view, by
using these stock phrases defendant has “fail[ed] to provide sufficient detail to allow Plaintiff
and the Court to properly assess the exemptions claimed or the specific records to which they
apply.” (Id. at 8.) The Court disagrees.
The phrases that plaintiff derides as “buzz words” are in fact better classified as
descriptive terms that help convey the relevant content of documents without divulging the
privileged information that Exemption 5 is meant to protect. See ACLU v. C.I.A., 710 F.3d at
432 (“[A] Vaughn index may also contain brief or categorical descriptions when necessary to
prevent the litigation process from revealing the very information the agency hopes to protect.”)
An example from defendant’s Vaughn index is instructive. In its justification for withholding
document 253, the defendant writes, “[t]his document is an email chain in which attorneys are
discussing and weighing approaches to take in possible forthcoming litigation.” (Vaughn Index
at 17.) This entry uses two of the phrases identified by plaintiff as “buzz words.” However,
these phrases provide the Court with the very details necessary to analyze which, if any, of the
relevant privileges are implicated by this document. This description demonstrates the presence
of both the attorney work product privilege and the attorney-client privilege and therefore the
specific “approaches” being discussed as well as the particular “possible . . . litigation” cannot be
12
disclosed. To require HUD to provide further detail would in effect allow the Vaughn index
requirements to swallow the very privileges Exemption 5 is designed to protect.
Third, plaintiff challenges the sufficiency of the Vaughn index on the grounds that
defendant’s narrative “justifications” fail to articulate the necessary elements of each of the three
privileges upon which HUD purports to rely. First, regarding the attorney work product
privilege, plaintiff contends that defendant’s justifications impermissibly exclude the specific
“potential or ongoing litigation” and fail to “affirmatively state . . . whether individual withheld
documents were shared with third parties.” (Pltf.’s Mot. at 9-11.) Second, regarding the
attorney-client privilege, plaintiff contends that defendant’s Vaughn index impermissibly fails to
“indicate whether individual documents have been shared with a third party, which would result
in a waiver of the attorney-client privilege” and whether the information contained in these
communications is “based solely on confidential material furnished to client.” (Pltf.’s Mot. at
13.) Third, regarding the deliberative process privilege, plaintiff alleges that defendant’s
justifications fail to demonstrate “what final decision was made, how a final decision was made,
or who made that final decision.” (Pltf.’s Mot. at 15.)
However, none of these alleged elements is required in order to establish the existence of
the three privileges upon which defendant relies. A defendant is not required, as plaintiff argues,
to identify a specific case to which a document relates in order to invoke the work product
privilege. See Judicial Watch Inv. v. Reno, 154 F. Supp. 2d 17, 18 (D.D.C. 2001). The privilege
“extends [even] to documents prepared in anticipation of foreseeable litigation, even if no
specific claim is contemplated.” Schiller, 964 F.2d at 1208. 7 This doctrine also protects
7
The Court finds plaintiff’s arguments regarding the work product privilege further disingenuous in light
of the fact that its FOIA request focuses specifically on documents and communications related to a
particular course of litigation and a particular legal theory. This is the very type of FOIA request which
Exemption 5’s work product privilege is meant to protect. See, e.g., Judicial Watch, Inc., 926 F. Supp.
13documents generated in preparation of an amicus brief, like the brief in question here. Strang v.
Collyer, 710 F. Supp. 9, 12-13 (D.D.C. 1989). Next, while plaintiff correctly states the legal
standard for establishing the attorney-client privilege, it fails to demonstrate that the
justifications in defendant’s Vaughn index are insufficient. The entries in the Vaughn index
specifically identify the author and recipient(s) of each communication, as well as the contents of
the document. The narrative justifications also explicitly identify which communications were
specifically “among attorneys” and which were not. (See Vaughn Index at 23-25, Docs. 302-
314.) This provides a sufficient basis for plaintiff and the Court to assess whether an attorney-
client relationship existed and whether the content of the communications was confidential.
Finally, plaintiff simply misstates the applicable legal standard for invoking the deliberative
process privilege by arguing that an agency must identify a specific final agency action. (Pltf.’s
Mot. at 15). “[T]he agency need not identify a specific final agency decision.” See Dent v.
Executive Office for U.S. Attorneys, 926 F. Supp. 2d 257, 268 (D.D.C. 2013).
Ultimately, based on a careful review of the Vaughn index and the parties’ arguments, the
Court finds that the defendant has discharged its statutory duty under FOIA. To be sure,
defendant could have made this Court’s job significantly easier by identifying the specific
privilege upon which it relied for each entry. Plaintiff likewise could have helped this Court by
identifying the individual entries within the Vaughn index that it felt were insufficient, instead of
relying on a blunderbuss approach. The Court is nonetheless satisfied that the narrative
justifications in the Vaughn index are sufficient to justify redacting and withholding documents
under FOIA Exemption 5. Defendant is therefore entitled to summary judgment on this claim.
2d at 137 (“In assessing whether the proponent has carried its burden, the relevant inquiry is ‘whether, in
light of the nature of the document and the factual situation in the particular case, the document can fairly
be said to have been prepared or obtained because of the prospect of litigation.’”) (quoting Equal Emp't
Opportunity Comm’n v. Lutheran Soc. Servs., 186 F.3d 959, 968 (D.C.Cir.1999).)
14
IV. SEGRABILITY
Defendants in FOIA cases always carry a burden of showing that withheld documents
contain no “reasonably segregable” factual information, 5 U.S.C. § 552(b), and plaintiff suggests
that defendant has not satisfied this burden here. 8 FOIA requires that “even if some materials
from the requested record are exempt from disclosure, any ‘reasonably segregable’ information
from those documents must be disclosed after redaction of the exempt information, unless the
[non-exempt] portions are inextricably intertwined with exempt portions.” Johnson v. Executive
Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (citing Mead Data Cent., Inc. v.
Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)).
To show that the agency has met its segregability obligation, Ms. Jih declares under the
penalty of perjury that “HUD made every reasonable effort to produce all reasonably segregable,
non-exempt portions of these documents.” (Jih Decl. at ¶ 19.) Plaintiff argues that this statement
is insufficient because “it does not indicate which records were subject to such analysis.” (Pltf.’s
Mot. at 16.) However, this argument is also without merit. Ms. Jih’s declaration clearly refers to
“all reasonably segregable” material and absent evidence to the contrary, the Court must accept
this government representative at her word.
8
The segrability requirement does not apply to documents withheld pursuant to the work product
privilege. See Judicial Watch, Inc. v. Dep’t of Justice, 432 F.3d at 371.
15
CONCLUSION
Accordingly, and for the reasons stated above, defendant’s motion for summary judgment
will be GRANTED. Plaintiff’s motion for summary judgment will be DENIED. A separate
order accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: February 28, 2014
16