Almeda v. United States Department of Education ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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CELESTINO G. ALMEDA, )
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Plaintiff, )
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v. ) Civil Action No. 1:17-cv-2641 (TSC)
)
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UNITED STATES DEPARTMENT )
OF EDUCATION, et al., )
)
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Defendants. )
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MEMORANDUM OPINION
Plaintiff Celestino G. Almeda has sued Defendants U.S. Department of Education (“ED”)
and U.S. Department of Veterans Affairs (“VA”) seeking to compel responses to his three Freedom
of Information Act (“FOIA”) requests. Pending before the court are Defendants’ Motion for
Summary Judgment (ECF No. 32 (“Defs. MSJ”)), and Almeda’s Cross-Motion for Summary
Judgment (ECF No. 34 (“Pl. MSJ”). For the reasons set forth below, the court will GRANT
Defendants’ motion for summary judgment and DENY Almeda’s cross-motion for summary
judgment.
I. BACKGROUND
Almeda is a veteran who served during World War II as a guerrilla fighter against the
Japanese occupation of the Philippines. (ECF No. 1 (“Compl.”) ¶ 2.) In response to Rescission
Acts in 1946 that prevented Filipino veterans from accessing United States veterans’ benefits, and
other continuous barriers to those benefits, Almeda has long advocated for proper recognition and
compensation of Filipino veterans. (Id. ¶ 3.) On October 16, 2017, Almeda submitted FOIA
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requests to the VA and ED for documents related to an Interagency Working Group established to
analyze the barriers faced by Filipino veterans in obtaining compensation for their service. (Id. ¶¶
26, 33, 41.) Receiving no timely response to his FOIA requests, Almeda brought this suit on
December 8th, 2017. (Id. ¶¶ 51–55.) Since that time, Defendants have satisfied portions of
Almeda’s requests, such that the remaining dispute presents only two narrow questions: whether the
VA improperly withheld 19 Bates page ranges and whether the ED improperly withheld 10 Bates
page ranges.
II. LEGAL STANDARD
A. Summary Judgment
Summary judgment is proper where the record shows there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). “A fact is ‘material’ if a dispute over it might affect the outcome of a suit under
governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary
judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)
(quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). “An issue is ‘genuine’ if ‘the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Id. Courts
must view “the evidence in the light most favorable to the non-movant[ ] and draw[ ] all reasonable
inferences accordingly,” and determine whether a “reasonable jury could reach a verdict” in the
non-movant’s favor. Lopez v. Council on Am.–Islamic Relations Action Network, Inc., 826 F.3d
492, 496 (D.C. Cir. 2016).
B. FOIA
FOIA cases are typically and appropriately decided on motions for summary
judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). “FOIA
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provides a ‘statutory right of public access to documents and records’ held by federal government
agencies.” Citizens for Responsibility & Ethics in Wash. (“CREW”) v. U.S. Dep’t of Justice, 602 F.
Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)).
FOIA requires that federal agencies comply with requests and make their records available to the
public unless such “information is exempted under [one of nine] clearly delineated statutory
[exemptions].” Crew, 602 F. Supp. 2d at 123; see also 5 U.S.C. §§ 552(a)–(b). The district court
conducts a de novo review of the agency’s decision to withhold requested documents under any
of FOIA’s specific statutory exemptions. See id. § 552(a)(4)(B). The burden is on the government
agency to show that nondisclosed, requested material falls within a stated exemption.
See Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5
U.S.C. § 552(a)(4)(B)).
In cases where the applicability of certain FOIA exemptions is at issue, agencies may rely
on supporting declarations that are reasonably detailed and non-conclusory. The declarations must
provide enough information “to afford the FOIA requester a meaningful opportunity to contest, and
the district court an adequate foundation to review, the soundness of the withholding.” King v.
Dep’t of Justice, 830 F.2d 210, 218 (D.C. Cir. 1987). “If an agency’s affidavit describes the
justifications for withholding the information with specific detail, demonstrates that the information
withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence
in the record or by evidence of the agency’s bad faith, then summary judgment is warranted on the
basis of the affidavit alone.” Am. Civil Liberties Union (“ACLU”) v. U.S. Dep’t of Def., 628 F.3d
612, 619 (D.C. Cir. 2011) (citations omitted). However, a motion for summary judgment should be
granted in favor of the FOIA requester where “an agency seeks to protect material which, even on
the agency’s version of the facts, falls outside the proffered exemption.” Coldiron v. U.S. Dep’t of
Justice, 310 F. Supp. 2d 44, 48 (D.D.C. 2004) (quoting Petroleum Info. Corp., 976 F.2d at 1433).
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III. ANALYSIS
Defendants raise several bases for their withholdings, only some of which Almeda contests.
Although “a motion for summary judgment cannot be ‘conceded’ for want of opposition,” Winston
& Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016), “this does not mean . . . that the
Court must assess the legal sufficiency of each and every exemption invoked by the government in
a FOIA case.” Shapiro v. U.S. Dep’t of Justice, 239 F. Supp. 3d 100, 106 n.1 (D.D.C. 2017).
Instead:
Where the FOIA requester responds to the government’s motion for summary
judgment without taking issue with the government’s decision to withhold or to redact
documents, the Court can reasonably infer that the FOIA requester does not seek those
specific records or information and that, as to those records or information, there is no
case or controversy sufficient to sustain the Court’s jurisdiction.
Id. Accordingly, the court will address only Plaintiff’s arguments in response to Defendants’
motion for summary judgment.
A. Withholdings by the Department of Veterans Affairs
Almeda contests the VA’s invocation of Exemption 5, its assertion that it has made all
reasonable segregations, and its withholding the names of non-senior employees.
1. Exemption 5 Withholdings
Exemption 5 shields documents that would “normally [be] privileged from discovery in civil
litigation against the agency,” such as documents protected by the attorney-client, work-product,
and deliberative process privileges. Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997). To
withhold a document under Exemption 5, the “document must meet two conditions: [1] its source
must be a Government agency, and [2] it must fall within the ambit of a privilege against discovery
under judicial standards that would govern litigation against the agency that holds it.” Stolt-Nielsen
Transp. Grp. Ltd. v. U.S., 534 F.3d 728, 733 (D.C. Cir. 2008) (citations and internal quotation
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marks omitted). There is no dispute that the first condition is met; the parties’ dispute is directed to
the second condition.
The VA withheld the contested Bates page ranges, or portions thereof, on the basis that they
are protected by the deliberative process privilege or the attorney-client privilege or both. (Defs.
MSJ at 13.) 1 Almeda argues that neither privilege applies, and therefore Exemption 5 does not
apply. 2 To resolve such a dispute, a court must decide whether the “agency’s affidavit describes the
justifications for withholding the information with specific detail,” and “demonstrates that the
information withheld logically falls within the claimed exemption.” ACLU, 628 F.3d at 619(citations omitted). If the affidavit meets these requirements, the agency is entitled to summary
judgment unless the record includes “contrary evidence” or “evidence of the agency’s bad faith.”
Id.The VA’s Declaration from Michael Davis, and the Vaughn index attached thereto, describe
the contents of each contested Bates page range and assert that each falls under the deliberative
process privilege because it relates to the process of drafting a blog post about the work of the IWG.
(ECF No. 32-3 (“Davis Decl.”) at 6–11.) The Declaration also asserts that some emails were
protected not only by the deliberative process privilege, but also by the attorney-client privilege,
because they involved consultation with lawyers about accurate statements of law. (See Defs. MSJ
at 15.) Almeda contests the presence of both privileges, (ECF No. 39 (“Pl. Reply”) at 3–4), but this
1
When citing electronic filings throughout this opinion, the court cites to the ECF page number, not
the page number of the filed document.
2
Based on the chart provided in Almeda’s motion, he appears to contest the applicability of
Exemption 5 as to 18 of the 19 contested Bates page ranges. For some entries, Almeda explicitly
contests the applicability (“attorney-client privilege unsupported”) but for others, he only does so
implicitly (“email chain sent interagency and includes non-attorneys.”) (Pl. MSJ at 15–17.)
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court need not reach the issue of attorney-client privilege because the relevant material is protected
by the deliberative process privilege.
Materials are protected by the deliberative process privilege if they are both “predecisional”
and “deliberative.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). The
privilege has been held to protect “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 Gas Corp. v. Dep’t of Energy, 617 F. 2d 854, 866 (D.C. Cir. 1980).
Here, each of the contested Bates page ranges is predecisional and deliberative because each relates
to the drafting process of a blog post. (Davis Decl. at 6–11.) In his Reply, Almeda provided an
email and attachment that the VA withheld, but that he nonetheless obtained, and argues that its
contents are not deliberative. (Pl. Reply at 2–4). The court disagrees. “The deliberative process
privilege protects not only the content of drafts, but also the drafting process itself.” Competitive
Enter. Inst. v. Office of Sci. & Tech. Policy, 161 F. Supp. 3d 120, 132 (D.D.C. 2016). The email in
question describes the timing of the publication, the draft at a particular stage in the process, and the
roles played by various members in the drafting process. The email and associated attachment are
thus protected because they represent the “content[s] of drafts” and “the drafting process itself.”
Id. 3
Finding that the VA “describes the justifications” for withholding the contested documents
and “demonstrates that the information withheld logically falls within” Exemption 5, and finding
that there is no “contrary evidence” or “evidence of the agency’s bad faith,” the court thus finds that
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Almeda also notes that a draft can lose its predecisional status if it is adopted as the position of the
agency. See, e.g., Arthur Andersen & Co. v. IRS, 678 F.2d 254, 257-58 (D.C. Cir. 1980). Here,
however, the comments in the margins of the relevant draft indicate that it was not the final version
adopted by the agency.
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the VA has sufficiently established that the withheld material properly falls within Exemption 5.
ACLU, 628 F.3d at 619 (citations omitted).
2. Failure to Segregate
Almeda also argues that even if Exemption 5 applies, the VA failed to segregate and
disclose non-exempt information from each of the 20 contested Bates page ranges. (Pl. MSJ at 15–
17.) The VA’s Davis Declaration states that Davis “performed a line-by-line for segregable
information and that all reasonably segregable nonexempt material has been released.” (Davis
Decl. at 15.) Almeda argues that this cannot be the case, because the email and attachment he
obtained (that otherwise remains withheld) includes what he considers to be “segregable, factual
content.” (Pl. Reply at 3.)
In resolving disputes about the release of segregable information, “[a]gencies are entitled to
a presumption that they complied with the obligation to disclose reasonably segregable material,”
which must be overcome by a some “quantum of evidence” by the requester. Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). Moreover, courts in this district have made
clear that “[a]ny effort to segregate the factual portions of the drafts, as distinct from their
deliberative portions, would run the risk of revealing editorial judgments.” Competitive Ent. Inst.,
161 F. Supp. 3d at 132. This is because such a disclosure could reveal “decisions to insert or delete
material or to change a draft’s focus or emphasis.” Id. Thus, because disclosure of the factual
material could reveal deliberative judgments, the court finds that withholding this material does not
violate the VA’s obligation to disclose reasonably segregable material.
3. Names of Non-Senior Employees
Almeda argues that “there is no explanation as to why certain names . . . have been
redacted.” (Pl. MSJ at 17.) He specifically points to names redacted in Bates page ranges 226–233,
277–279, 322–325, and 347–351. (Id. at 16–17.) Defendants claim that the redactions are
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authorized by Exemption 6 because they prevent the disclosure of the names of “nonsenior
government employees” who “have a privacy interest in preventing their identities from being
disclosed to the public.” (ECF No. 37 (“Defs. Reply”) at 2.) However, the court need not reach the
issue of whether the names are properly withheld under Exemption 6 because it finds they are
properly withheld under Exemption 5. The D.C. Circuit has held that “[i]f agency records are
indeed deliberative, it is appropriate to apply Exemption 5 to the documents themselves, as well as
to the names of their authors.” Brinton v. Dep’t of State, 636 F.2d 600, 604 (D.C. Cir. 1980); see
also Pub. Citizen, Inc. v. U.S. Dep’t of Educ., 388 F. Supp. 3d 29, 44 (D.D.C. 2019) (“Because the
emails are protected under the deliberative process privilege, the Court finds that the identity of the
author of those emails . . . is also protected”); Aaron v. U.S. Dep’t of Justice, No. 09-00831 (HHK),
2011 WL 13253641, *8 (D.D.C. July 15, 2011) (“This Circuit has recognized that if a document is
deliberative in nature, the identity of the author is also privileged.”) Because the underlying
documents are indeed deliberative, and because the redacted names are those of the authors of those
deliberative documents, the court finds that the names were properly withheld.
B. Withholdings by the Department of Education
Almeda argues that ED improperly withheld information contained in attachments to emails
and that it failed to segregate non-exempt information.
1. Attachments
Almeda argues that Defendants offer no reason “why attachments undoubtedly associated
with these emails are not included in the Bates ranges of withholdings.” (Pl. MSJ at 19.)
Defendants respond that “all documents with withheld information are included on ED’s Vaughn
index.” 4 (Defs. Reply at 3.) Moreover, the Declaration supplied by Defendants indicates that the
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“A Vaughn index describes the documents withheld or redacted and the FOIA exemptions
invoked, and explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142,
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Vaughn index includes all the records that were withheld. (ECF No. 32-4 (“Siegelbaum Decl.”) ¶
15.) Declarations of agencies are “accorded a presumption of good faith, which cannot be rebutted
by purely speculative claims about the existence and discoverability of other documents.” SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted).
Because Almeda provides no explanation for the assertion that there are documents excluded from
the Vaughn Index, and further provides no evidence to support such an assertion, the court finds that
ED properly included all withheld information on the Vaughn Index. 5
2. Segregable Information
Almeda argues that ED “failed to release segregable information” in 10 Bates page ranges.
(Pl. MSJ at 17-18.) Defendants point to the Siegelbaum Declaration, which asserts that “no portion
of the withheld sections can be reasonably segregated and released.” (Siegelbaum Decl. at ¶ 21.)
As noted above, “agencies are entitled to a presumption that they complied with the obligation to
disclose reasonably segregable material,” which must be overcome by some “quantum of evidence”
by the requester. Sussman, 494 F.3d at 1117. Here, Almeda merely asserts that ED failed to release
1145 n.1 (D.C. Cir. 2015) (citing Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973); Keys v. U.S.
Dep’t of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987)).
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The documents that Almeda does provide—the email and attachment he obtained despite both
being withheld—show that at least in that instance, the Vaughn Index does properly include the
attachment to the email, given that the page range listed in the index (1064-1084) encompasses the
pages of the attachment. (Pl. Reply at 2.)
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segregable information without providing any evidence in support thereof. 6 Accordingly, the court
finds that ED complied with the obligation to disclose reasonably segregable material.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment will be GRANTED
and Almeda’s cross-motion for summary judgment will be DENIED. A corresponding Order will
issue separately.
Date: February 7, 2020
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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Moreover, as discussed above, “[a]ny effort to segregate the factual portions of the drafts, as
distinct from their deliberative portions, would run the risk of revealing editorial judgments—for
example, decisions to insert or delete material or to change a draft’s focus or emphasis.”
Competitive Ent. Inst., 161 F. Supp. 3d at 132 (internal citations omitted).
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