Brown v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
IVY BROWN, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 10-2250 (PLF)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
____________________________________)
OPINION
Currently before the Court is the issue of whether the District of Columbia must
produce to plaintiffs certain documents that the District claims are privileged and has submitted
for in camera review pursuant to this Court’s July 29, 2021 order. Upon careful consideration of
the documents submitted for in camera review, the parties’ filings, the relevant legal authorities,
and the entire record in this case, the Court concludes that all of the documents are shielded from
discovery by the deliberative process privilege. 1
1
The documents reviewed in connection with this matter include: Plaintiffs’
Fourth Amended Complaint (“Fourth Am. Compl.”) [Dkt. No. 162]; Plaintiffs’ Motion to
Compel (“Mot. to Compel”) [Dkt. No. 363]; Plaintiffs’ Second Request for Documents (“Pl.
Second Req. for Docs.”) [Dkt. No. 363-4]; Plaintiffs’ Second Set of Interrogatories (“Pl. Second
Interrog.”) [Dkt. No. 363-5]; Defendant’s Opposition to Plaintiff’s Motion to Compel (“Opp.”)
[Dkt. No. 364]; Plaintiffs’ Memorandum of Law for July 8, 2021 Status Conference (“Pl.
Mem.”) [Dkt. No. 384]; Email attaching Defendant’s June 1, 2021 Production and Privilege Log
(“June 1, 2021 Email”) [Dkt. No. 384-10]; June 2, 2021 Email attaching Declaration by Laura
Newland (“June 2, 2021 Email”) [Dkt. No. 384-11]; Defendant’s Memorandum of Law
Regarding Discovery Disputes (“Def. Mem.”) [Dkt. No. 386]; Email Exchange Regarding June 1
and July 1 Privilege Logs (“Privilege Log Email Exchange”) [Dkt. No. 386-1]; Declaration of
Adam Mingal Attesting to Claims of Deliberative Process Privilege (“Mingal Decl.”) [Dkt. No.
386-2]; July 28, 2021 Joint Status Report (“July 28, 2021 JSR”) [Dkt. No. 387]; the Court’s July
29, 2021 Order Memorializing Agreement Between the Parties (“July 29, 2021 Order”) [Dkt.
I. BACKGROUND
Plaintiffs are a class of physically disabled individuals who have been living in
nursing facilities but who seek to transition to community-based care. Plaintiffs allege that the
District of Columbia has failed to provide adequate services to assist class members with this
transition, which has caused them to remain in nursing facilities in violation of the integration
mandate of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., and
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq. See Fourth Am. Compl. ¶ 3.
Plaintiffs seek a number of changes, also referred to as “accommodations,” to the District’s
transition and community-based long-term care services. See id. at 31-32; see also Brown v.
District of Columbia, 928 F.3d 1070, 1082 (D.C. Cir. 2019) (“Plaintiffs have requested four
separate accommodations, reflected in the four provisions of the proposed injunction.”).
II. PROCEDURAL HISTORY
In 2016, Judge Ellen Segal Huvelle presided over a nine-day bench trial in this
case, after which she entered judgment for the District of Columbia. Brown v. District of
Columbia, 322 F.R.D. 51, 96 (D.D.C. 2017). 2 Plaintiffs appealed, and the court of appeals
reversed, holding that the district court had improperly “require[d] Plaintiffs to meet a burden
they should not have been made to shoulder.” See Brown v. District of Columbia, 928 F.3d
at 1079. The D.C. Circuit’s opinion laid out clear instructions for this Court. See id.
at 1083-84. It stated that on remand, “this litigation boils down to resolution of [one] question:
No. 388]; and the transcript of the July 22, 2021 Status Conference (“July 22, 2021 Tr.”) [Dkt.
No. 390].
2
Judge Huvelle presided over this case until her retirement, at which time the case
was reassigned to this Court.
2
are the requested accommodations reasonable?” Id. at 1083. In other words: are the changes
requested by plaintiffs to the District’s transition and community-based long-term care services
reasonable? The District “bears the burden of proving the unreasonableness of a requested
accommodation.” Id. at 1077. The District can meet its burden “in one of two ways.” Id.
at 1084. It can “establish that it has a comprehensive, effectively working plan for transitioning
the individuals to the community and a waiting list [for transition to the community] that
move[s] at a reasonable pace, i.e., an adequate Olmstead Plan.” Id. (internal quotation marks
omitted). If such a plan is in place, “every requested accommodation [would be] categorically
unreasonable.” Id. If the District “cannot demonstrate the existence of an adequate Olmstead
Plan, the District can establish, seriatim, that each of the four provisions of Plaintiffs’ requested
injunction would be so costly as to require an unreasonable transfer of the District’s limited
resources from other disabled individuals.” Id. (internal quotation marks omitted).
Since remand, the parties have engaged in discovery on the issues identified by
the D.C. Circuit. See Brown v. District of Columbia, Civil Action No. 10-2250, 2021
WL 1439741, *2-3 (D.D.C. Apr. 16, 2021) (summarizing the history of recent discovery
disputes). As relevant here, plaintiffs have sought production of documents related to the
planning of the forthcoming 2021-2024 Olmstead Plan. Id. at *3. After making various informal
requests of the District, plaintiffs filed a motion to compel production of documents related to the
planning of the 2021-2024 Olmstead Plan. Id. at *2-3. The District argued that the documents
are protected by the deliberative process privilege. Id. at *4. Plaintiffs responded that the
District had waived the deliberative process privilege by failing to produce a privilege log and
thereby failing to properly invoke the privilege. See id. at *5. The District initially responded
3
that it was not required to submit a privilege log because “the documents sought by plaintiffs are
‘inherently’ or ‘by definition’ protected by the privilege.” Id. at *5 (quoting Opp. at 4).
This Court disagreed. It held that, pursuant to well-established case law in this
circuit, the District was required to produce a privilege log in order to adequately assert the
deliberative process privilege. Brown v. District of Columbia, 2021 WL 1439741, at *5 (citing
Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1135 (D.C. Cir. 2000)). By failing to produce
the required privilege log, the District had not “provided any information that would enable
either plaintiffs or the Court to determine whether each requested document or set of documents
is pre-decisional, deliberative, memorializes the agency’s final policy, was shared with the
public, or can be produced in a redacted form.” Id. The Court therefore granted plaintiffs’
motion to compel and ordered the District to supplement its discovery responses with all
documents related to the 2021 Olmstead Plan that were responsive to plaintiffs’ discovery
requests. Id. at *6. The Court concluded, however, that the District had not waived the
deliberative process privilege. Id. at *5. It therefore permitted the District the opportunity to
properly assert the privilege. The Court ordered the District to “produce a privilege log that
identifies each document that is responsive to plaintiffs’ requests, specifies the information
within each document for which the privilege is claimed, and explains why each document falls
within the scope of the privilege.” Id. at *6. It further ordered that the privilege log be
accompanied by “supporting affidavits from the proper authorities.” Id.On June 1, 2021, the District produced a privilege log, which listed almost 1,500
documents withheld pursuant to the deliberative process privilege or other privileges. See
June 1, 2021 Email. On June 2, 2021, following a demand by plaintiffs, the District produced a
declaration by Laura Newland, Director of the District of Columbia’s Department on Aging and
4
Community Living. See June 2, 2021 Email. Two weeks later, plaintiffs requested a status
conference to resolve several outstanding discovery issues, including plaintiffs’ argument that
the District’s June 1 production failed to comply with the Court’s April 16 opinion and order.
The Court scheduled a status conference for July 8, 2021 and directed the parties to file, in
advance of that status conference, formal memoranda of law setting forth a description of the
issues in dispute. See June 24, 2021 Minute Orders. On July 1, 2021, the District produced to
plaintiffs an updated privilege log in response to specific objections raised by plaintiffs.
Privilege Log Email Exchange at 1. The District did not produce an updated declaration with
their July 1 production, but it subsequently filed a detailed declaration by Adam Mingal, General
Counsel for the District of Columbia Department on Aging and Community Living, on
July 6, 2021. See Mingal Decl.
At the status conference on July 8, 2021, the Court asked plaintiffs to review the
Mingal Declaration alongside the District’s July 1 privilege log and determine whether they
agreed that some or all categories of documents as described in that declaration were properly
withheld pursuant to the deliberative process privilege. See July 22 Tr. at 4:16-25. The Court
explained that if the parties could come to an agreement on most of the documents in the
privilege log, the Court would review the remaining documents in camera. See id. at 5:1-10.
The parties appeared for another status conference on July 22, 2021 and informed
the Court that they had narrowed their disagreements to 137 documents. July 22 Tr. at 6:14-21.
The Court agreed to review those remaining documents in camera. See July 22 Tr.
at 29:11-17, 50:12-15. At the conclusion of the status conference, the Court ordered the parties
to submit a joint status report memorializing their agreements, which the parties filed on
July 28, 2021. See id. at 50-51; July 28, 2021 JSR. Based on the representations of the parties
5
at the July 22, 2021 status conference and the parties’ joint status report, the Court ordered the
District to “produce to the Court by July 30, 2021 for in camera review the challenged
documents withheld under the deliberative process privilege.” July 29, 2021 Order. On
July 29, 2021, the District produced 111 documents to the Court for its review. The District
stated that some previously-withheld documents were no longer in dispute, either because
plaintiffs withdrew their challenge or because the District opted to produce the documents, rather
than submit them for review. The District also submitted a redlined version of the Mingal
Declaration, which shows which documents are no longer in dispute. The Court’s review
therefore has been limited to the 111 documents produced after further discussions and
agreements between the parties.
III. LEGAL STANDARDS
The deliberative process privilege protects material that is “predecisional” and
“deliberative.” In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). “Predecisional materials
are those that predate an agency’s decision or adoption of a policy and which comprise part of a
process by which the Government reached that decision or policy.” In re Anthem, Inc. Data
Breach Litig., 236 F. Supp. 3d 150, 161 (D.D.C. 2017) (citing Judicial Watch, Inc. v. FDA, 449
F.3d 141, 151 (D.C. Cir. 2006) and In re Sealed Case, 121 F.3d at 737). And a document is
deliberative if it “is intended to facilitate or assist development of the agency’s final position on
the relevant issue.” Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014). “To be
‘deliberative,’ a document must reflect ‘part of the agency give-and-take by which the decision
itself is made.’” In re Anthem, Inc. Data Breach Litig., 236 F. Supp. 3d at 161 (quoting
Hinckley v. United States, 140 F.3d 277, 284 (D.C. Cir. 1998)).
6
Documents that are protected by the deliberative process privilege include those
“reflecting advisory opinions, recommendations and deliberations comprising part of a process
by which governmental decisions and policies are formulated.” Dep’t of Interior v. Klamath
Water Users Protective Ass’n, 532 U.S. 1, 2 (2001). “The deliberative process privilege does
not[, however,] shield documents that simply state or explain a decision the government has
already made or protect material that is purely factual, unless the material is so inextricably
intertwined with the deliberative sections of documents that its disclosure would inevitably
reveal the government’s deliberations.” In re Sealed Case, 121 F.3d at 737. “[T]he legitimacy of
withholding does not turn on whether the material is purely factual in nature or whether it is
already in the public domain, but rather on whether the selection or organization of facts is part
of an agency’s deliberative process.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641
F.3d 504, 513 (D.C. Cir. 2011)
The deliberative process privilege is a qualified privilege that can be “overcome
by a sufficient showing of need.” In re Sealed Case, 121 F.3d at 737. “This need determination
is to be made flexibly on a case-by-case, ad hoc basis.” Id. Each time the deliberative process
privilege is asserted, a court “must undertake a fresh balancing of the competing interests.” Id.
(quotation omitted). The court must weigh the public interest in “prevent[ing] injury to the
quality of agency decisions” against the “need of the party seeking privileged evidence.” Id. at
737, 746; see In re Anthem, Inc. Data Breach Litig., 236 F. Supp. 3d at 159 (“[P]rivileged
materials may be ordered disclosed if the court concludes the private need for disclosure
outweighs the public interest in non-disclosure.”).
To determine whether a party has made a sufficient showing of need, courts
consider such factors as “the relevance of the evidence, the availability of other evidence, the
7
seriousness of the litigation, the role of the government, and the possibility of future timidity by
government employees” should the materials be released. In re Sealed Case, 121 F.3d at 737-38.
This list of factors is not exhaustive. See id. at 746 (stating that the “balancing is . . . ad hoc in
the context of the deliberative process privilege”). “The party seeking the documents bears the
burden of demonstrating that the balance of interests tips in his or her favor.” In re Anthem, Inc.
Data Breach Litig., 236 F. Supp. 3d at 159; see also Mannina v. District of Columbia, Case
No.: 1:15-cv-931, 2019 WL 1993780, *6 (D.D.C. May 6, 2019).
IV. DISCUSSION
A. The Relevant Olmstead Plan
For some time, the parties disputed which version of the Olmstead Plan will be at
issue at trial. In their motion to compel, plaintiffs represented that the plan in effect from 2017
to 2020 “ended by its own terms on December 31, 2020.” Mot. to Compel at 1. In their
memorandum of law submitted in advance of the July 8, 2021 status conference, plaintiffs stated
that “the District chose to allow its Olmstead 2017-2020 plan to expire.” Pl. Mem. at 10. The
District did not dispute this assertion in its opposition to plaintiffs’ motion to compel. See Opp.
But in its memorandum of law submitted in advance of the July 8, 2021 status conference, the
District clarified that the plan had not expired. Instead, it explained, “the reporting requirements
of [the 2017-2020 Olmstead Plan] would continue ‘[p]ending development of the next Plan.’”
Def. Mem. at 7 (citing 66 D.C. Reg. 53 at 16711 (Dec. 27, 2019) and 68 D.C. Reg. 18 at 4687
(Apr. 30, 2021)). The District further stated that “it is entirely speculative whether a new plan
will be in place before the trial [in this case] is complete.” Id.At the July 22, 2021 status conference, the Court sought clarification concerning
which version of the Olmstead Plan would be at issue at trial. Counsel for the plaintiffs
8
represented that the District did not have a finalized Olmstead Plan, see July 22 Tr.
at 10:5-9, 13:20-22, and that “a plan that’s dated 2021 through 2024 . . . is the plan that is going
to be in effect when [the Court] writes [its] opinion,” id. at 11:18-20. Counsel for the District,
however, again stated that “[t]here is an Olmstead Plan in place” – the 2017-2020 Olmstead Plan
– and “[i]t was finalized shortly after the last trial.” July 22 Tr. at 10:18-19. Counsel noted that
the District has “a formal notice in the D.C. Register stating that the [2017-2020] plan is in effect
until the next one is released.” Id. at 14:13-15; see 68 D.C. Reg. 18 at 4687. Therefore, the
District’s counsel stated, the 2017-2020 Olmstead Plan “is the focus of this trial,” id. at 10:22-23,and the District is “prepared to go forward based on [that] plan,” id. at 12:6-7. In response,
plaintiffs’ counsel stated that “if the Defendants are willing to agree . . . that [the 2017-2020
Olmstead Plan is] the operative plan and the implementation of that plan is what’s at issue at
trial, then maybe we could do this.” Id. at 11:9-13.
The Court expressed concern that the trial would be futile if the District is “going
to come up with a new plan after the trial is over.” July 22 Tr. at 12:8-9. Ultimately, however,
the Court concluded that “this is Plaintiff’s lawsuit,” so “if Plaintiff wants to go ahead to trial
based on what now exists, then we’ll do it.” Id. at 14:17-24. In response, plaintiffs’ counsel
stated: “The Plaintiff definitely wants to go ahead to trial in October.” Id. at 15:2-3. Plaintiffs’
counsel further stated that “liability [can] be determined based on whether or not they work
effectively under the old plan.” Id. at 16:11-13.
The parties therefore now agree that the 2017-2020 Olmstead Plan is the operative
plan and the only plan at issue at trial. The trial will focus on whether the 2017-2020 Olmstead
Plan is “‘comprehensive,’ ‘effectively working,’ and contains a waiting list that moves at a
‘reasonable’ pace.” See Brown v. District of Columbia, 928 F.3d at 1086. The
9
forthcoming 2021-2024 Olmstead Plan, and any deliberations related to it, are not relevant to
these questions.
B. Analysis of Documents
1. Deliberative and predecisional
The Court concludes that all of the documents submitted to it in camera are
predecisional. See In re Sealed Case, 121 F.3d at 737. They all concern the 2021-2024
Olmstead Plan, and a final version of that plan has not yet been adopted as the official policy of
the District. See July 22 Tr. at 12:2-3 (“So the District is right now every day continuing to
finalize the next plan.”); 68 D.C. Reg. 18 at 4687 (Apr. 30, 2021) (stating that, during the
development of the 2021-2024 Olmstead Plan, the 2017-2020 Olmstead Plan “will remain in
effect”). The documents the Court has reviewed therefore necessarily are predecisional because
they “predate” the adoption of a final 2021-2024 Olmstead Plan and “comprise part of [the]
process by which” the District will issue a final plan. In re Anthem, Inc. Data Breach Litig., 236
F. Supp. 3d at 161; see also U.S. Fish & Wildlife Service v. Sierra Club, Inc., 141 S. Ct. 777, 788
(2021) (stating that “a draft document will typically be predecisional”).
A review of the documents shows that they are also deliberative. See In re Sealed
Case, 121 F.3d at 737. The District submitted to the Court the following types of documents
related to the 2021-2024 Olmstead Plan: drafts or partial drafts of the plan; email
correspondence between District employees regarding the plan; memoranda regarding revisions
or additions to the plan; and documents related to the logistics of creating the plan. These
documents include or consist entirely of deliberations, comments, and exchanges between and
among District employees. They therefore reflect the “give-and-take” by which the 2021-2024
Olmstead Plan is being developed. See In re Anthem, Inc. Data Breach Litig., 236 F. Supp. 3d
10at 161. Moreover, because the deliberations contained within these documents concern issues
such as metrics to include in the plan, deadlines by which certain sections of the plan would be
complete, or revisions to the plan, the documents were plainly produced in order to facilitate the
development of the final 2021-2024 Olmstead Plan. See Nat’l Sec. Archive v. CIA, 752 F.3d
at 463; Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. at 2. And revealing
earlier drafts of the 2021-2024 Olmstead Plan inevitably reveals the District’s “selection or
organization of facts,” which is part of the deliberative process. See Ancient Coin Collectors
Guild v. U.S. Dep’t of State, 641 F.3d at 513; In re Sealed Case, 121 F.3d at 737.
These documents do not state or explain a decision that the District has already
made because, as the Court has explained, the 2021-2024 Olmstead Plan has not yet been
finalized. See In re Sealed Case, 121 F.3d at 737. And, as discussed in the next section, any
“purely factual” information has already been produced to plaintiffs. Id. All of the documents
submitted for in camera review therefore are subject to the deliberative process privilege. But
those documents may still be produced to the plaintiffs if plaintiffs have made a “sufficient
showing of need.” In re Sealed Case, 121 F.3d at 737.
2. In re Sealed Case
Plaintiffs argue that their “need for [the withheld documents] outweighs the
District’s qualified invocation of the deliberative process privilege.” See Mot. to Compel at 8;
see also Pl. Mem. at 7 (“[T]he Court should order production of the withheld documents under
the balancing test articulated by the DC Circuit in In re Sealed Case.”). Plaintiffs contend that
the withheld documents are “central to this case” because “[d]ocuments relating to the
development of the 2021 Olmstead Plan are key to [the] issues on remand.” Mot. to Compel
at 1, 9. They argue that in order to “prepare for trial, present and rebut evidence about the extent
11
to which the District has implemented a comprehensive, effectively working Olmstead Plan, and
challenge the District’s affirmative fundamental alteration defense,” plaintiffs require all
documents related to the development of the 2021-2024 Olmstead Plan. Reply at 4.
The District disagrees, arguing that plaintiffs cannot make a sufficient showing of
need to overcome the deliberative process privilege. The District contends that “none of the
documents withheld or produced are relevant, let alone central” to the issues at trial because the
withheld documents concern the pending 2021-2024 Olmstead Plan, which is not yet operative.
Def. Mem. at 6-8. In support of its position, the District submitted the declaration of Adam
Mingal, General Counsel for the District of Columbia Department on Aging and Community
Living. In his declaration, Mr. Mingal divided the documents for in camera review into thirteen
categories and explained the facts underlying the assertion of privilege for each category. The
Court’s analysis therefore follows the groupings in the Mingal Declaration.
a. Paragraphs 7 and 8
The documents listed in paragraphs 7 and 8 are drafts or partial drafts of
the 2021-2024 Olmstead Plan, which is not yet in effect. Plaintiffs have failed to make a
sufficient showing of need for these documents. Since the parties agree that the trial will
concern the operative plan, which is the 2017-2020 Olmstead Plan, see July 22 Tr. at 10:22-23,
15:2-3, 16:11-13, these documents are not relevant to the plan at issue at trial, see In re Sealed
Case, 121 F.3d at 737. Moreover, the drafts contain tracked changes and comments by District
employees. Releasing these documents therefore may damage the District’s decision-making
processes by chilling employee discussions and deliberations. See id. at 738.
Plaintiffs argue that future timidity by government officials can be mitigated by
the protective order in this litigation, which plaintiffs state will “prevent the public dissemination
12
of documents obtained in discovery.” Pl. Mem. at 11. But that order only protects the
confidentiality of information that “includes Protected Health Information (“PHI”) and Mental
Health Information (“MHI”).” Protective Order at 1. It therefore does not protect the documents
listed in paragraphs 7 and 8 of the Mingal Declaration. Plaintiffs also contend that the chilling of
government employees is less relevant where, as here, “the decision-making process . . . involves
collaboration with individuals and organizations outside of the government.” Mot. to Compel.
at 11; Pl. Mem. at 11. But the District’s internal deliberations do not lose their protection simply
because the District has consulted with non-governmental stakeholders.
To the extent that plaintiffs seek to identify potential differences between
the 2017-2020 and 2021-2024 Olmstead Plans, a draft version of the 2021-2024 Olmstead Plan
was published for public comment on April 30, 2021 and is available for their review. See 68
D.C. Reg. 18 at 4687 (Apr. 30, 2021) (soliciting comments on a draft of the 2021-2024 Olmstead
Plan). Plaintiffs therefore already understand the District’s thinking with respect to changes to
the 2017-2020 Olmstead Plan; there is no need to review earlier drafts of a now-public draft
plan. Moreover, much of the factual information contained within the withheld drafts can be
found in the final draft published for public comment. See In re Sealed Case, 121 F.3d at 738
(requiring courts to consider the availability of other evidence).
Even if drafts of the 2021-2024 Olmstead Plan were somehow relevant to the
2017-2020 Olmstead Plan, plaintiffs still cannot show that the drafts are relevant to the legal
questions before the Court. At trial, the Court must determine whether the District has an
adequate Olmstead Plan in place and, if not, whether the accommodations requested by plaintiffs
are unreasonable. See Brown v. District of Columbia, 928 F.3d at 1083-84. The Court’s
analysis therefore will focus in large part on how and whether the District’s existing Olmstead
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Plan works. This question cannot be answered by knowing what commitments were considered
but ultimately rejected by the District for a different, forthcoming plan. The salient issue is
whether the commitments that were adopted help form an Olmstead Plan that is “effectively
working.” Id. at 1084.
The DOJ guidance cited by plaintiffs supports this conclusion. That guidance
states that an Olmstead Plan “must contain concrete and reliable commitments to expanded
integrated opportunities.” U.S. Dep’t of Justice, Statement of the Department of Justice on
Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and
Olmstead v. L.C. (“DOJ Statement”) (Feb. 25, 2020), https://www.ada.gov/olmstead/q&a_
olmstead.htm. A final plan that contains those types of commitments might be considered
adequate, while a plan that does not might be considered inadequate. But the process by which
any such plan was developed is irrelevant. Plaintiffs’ reliance on Doe 2 v. Esper therefore is
misplaced. In that case, the court held that the deliberative process privilege did not apply to
documents that concerned “Defendants’ decision-making processes and intent” because “the
extent and scope of that decision-making process [was] a central issue in [that] lawsuit.” Doe 2
v. Esper, Civil Action No. 17-1597, 2019 WL 4394842, *7 (D.D.C. Sept. 13, 2019). Here, by
contrast, the processes by which the District develops a plan have no bearing on whether the plan
that is ultimately adopted is effectively working. More importantly, plaintiffs are seeking
documents related to the development of a plan that is not yet operative. Even if the planning
process was somehow relevant, therefore, it would only be relevant as to the plan currently in
effect – the 2017-2020 Olmstead Plan. The balance of interests favors withholding the
documents listed in paragraphs 7 and 8 of the Mingal Declaration.
14
The same reasoning applies to documents with the following ID numbers:
• DC_IBrown_00154121
• DC_IBrown_00151331
• IVYB051_0000001271.0001
• IVYB051_0000001284.0001
• IVYB051_0000001293.0001
• IVYB051_0000003095.0001
• IVYB051_0000003095.0002
• IVYB051_0000003096.0001
These documents are not listed in the Mingal Declaration, but they were withheld pursuant to the
deliberative process privilege and therefore were submitted to the Court for in camera review.
b. Paragraph 9
The documents listed in paragraph 9 are email correspondence concerning the
2021-2024 Olmstead Plan, which is not yet in effect. Plaintiffs have failed to make a sufficient
showing of need for these documents. Since the parties agree that the trial will concern the
operative plan, which is the 2017-2020 Olmstead Plan, see July 22 Tr. at 10:22-23, 15:2-3,
16:11-13, the documents are not relevant to the plan at issue at trial, see In re Sealed Case, 121
F.3d at 737. Moreover, these documents are direct communications between District employees
and contain the deliberations and thought processes of those employees. Releasing these
documents therefore may damage the District’s decision-making processes by chilling employee
discussions and deliberations. See id. at 138. For the same reasons discussed in Section
IV(B)(2)(a), supra, plaintiffs have failed to show that the thought processes of District employees
are relevant to the legal questions before the Court on remand. The balance of interests favors
withholding the documents listed in paragraph 9 of the Mingal Declaration.
15
c. Paragraph 10
The documents listed in paragraph 10 are copies of a short memorandum noting
areas for additional information and improvements to a draft of the 2021-2024 Olmstead Plan,
which is not yet in effect. Plaintiffs have failed to make a sufficient showing of need for these
documents. Since the parties agree that the trial will concern the operative plan, which is the
2017-2020 Olmstead Plan, see July 22 Tr. at 10:22-23, 15:2-3, 16:11-13, the documents are not
relevant to the plan at issue at trial, see In re Sealed Case, 121 F.3d at 737. Moreover, these
documents are direct communications between District employees. Releasing these documents
therefore may damage the District’s decision-making processes by chilling employee discussions
and deliberations. See id. at 738. And for the same reasons discussed in Section IV(B)(2)(a),
supra, plaintiffs have failed to show that the thought processes of District employees are relevant
to the legal questions before the Court on remand. The balance of interests therefore favors
withholding the documents listed in paragraph 10 of the Mingal Declaration.
d. Paragraphs 12 and 13
Paragraphs 12 and 13 list thirty-three documents that “convey suggestions for
metrics that might be included in the next plan. Mingal Decl. ¶ 11. The documents are either
tables listing or email correspondence concerning proposed metrics for inclusion in
the 2021-2024 Olmstead Plan, which is not yet in effect. Plaintiffs have failed to make a
sufficient showing of need for these documents. Since the parties agree that the trial will
concern the operative plan, which is the 2017-2020 Olmstead Plan, see July 22 Tr. at 10:22-23,
15:2-3, 16:11-13, the documents are not relevant to the plan at issue at trial, see In re Sealed
Case, 121 F.3d at 737.
16
Plaintiffs argue that these documents are
relevant to the Court’s determination of whether the plan reflects
that the District “is providing services in the most integrated setting
and whether the plan contains concrete and reliable commitments to
expand integrated opportunities, specific and reasonable timeframes
and measurable goals for which the public entity may be held
accountable.”
Pl. Mem. at 8-9 (quoting DOJ Statement). But the metrics being discussed have not yet been
adopted by the District because they have not yet been incorporated into a final version of
the 2021-2024 Olmstead Plan. Even if they had been or subsequently are incorporated, the
metrics will remain irrelevant to the question before the Court, that is, whether the current
plan – the 2017-2020 Olmstead Plan – is effectively working.
Moreover, some of these documents are direct communications between District
employees. Releasing these documents therefore may damage the District’s decision-making
processes by chilling employee discussions and deliberations. See In re Sealed Case, 121 F.3d
at 738. For the same reasons discussed in Section IV(B)(2)(a), supra, plaintiffs have failed to
show that the thought processes of District employees are relevant to the legal questions before
the Court on remand. The balance of interests favors withholding these documents.
The same reasoning applies to documents with the following ID numbers:
• IVYB051_0000000653.0001
• IVYB051_0000000653.0003
• IVYB051_0000000735.0001
• IVYB051_0000000735.0003
• IVYB051_0000000746.0001
• IVYB051_0000000957.0001
• IVYB051_0000000957.0003
These documents are not listed in the Mingal Declaration, but they were withheld pursuant to the
deliberative process privilege and therefore were submitted to the Court for in camera review.
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e. Paragraph 14
The documents listed in paragraph 14 are three copies of email correspondence,
two of which are unredacted and one of which is redacted. The emails concern proposed metrics
for inclusion in the 2021-2024 Olmstead Plan, which is not yet in effect. Plaintiffs have failed to
make a sufficient showing of need for these documents. The parties agree that the trial will
concern the operative plan, which is the 2017-2020 Olmstead Plan. See July 22 Tr. at 10:22-23,
15:2-3, 16:11-13. For this reason, and for the reasons discussed in Section IV(B)(2)(d), supra,
the documents are not relevant to the plan at issue at trial. See In re Sealed Case, 121 F.3d
at 737.
Moreover, because these documents are direct communications between District
employees, releasing these documents may damage the District’s decision-making processes by
chilling employee discussions and deliberations. See In re Sealed Case, 121 F.3d at 738. For the
same reasons discussed in Section IV(B)(2)(a), supra, plaintiffs have failed to show that the
thought processes of District employees are relevant to the legal questions before the Court on
remand. Finally, copies of these emails have been produced to plaintiffs in redacted form to
show the factual information contained therein. See In re Sealed Case, 121 F.3d at 738. The
balance of interests therefore favors withholding the documents in paragraph 14 of the Mingal
Declaration.
f. Paragraph 16
The documents listed in paragraph 16 are three memoranda outlining a proposed
strategy for completion of the 2021-2024 Olmstead Plan, which is not yet in effect. Plaintiffs
have failed to make a sufficient showing of need for these documents. Since the parties agree
that the trial will concern the operative plan, which is the 2017-2020 Olmstead Plan, see July 22
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Tr. at 10:22-23, 15:2-3, 16:11-13, the documents are not relevant to the plan at issue at trial, see
In re Sealed Case, 121 F.3d at 737.
Plaintiffs initially argued that these documents are “relevant because the District
chose to allow its Olmstead 2017-2020 plan to expire.” Pl. Mem. at 10. But, as explained
above, the 2017-2020 plan did not expire. Instead, the District extended operation of that plan
until the forthcoming 2021-2024 Olmstead Plan can be finalized. See 66 D.C. Reg. 53 at 16711
(Dec. 27, 2019); 68 D.C. Reg. 18 at 4687 (Apr. 30, 2021). Plaintiffs also state that
“[i]nformation relating to the timing of the next plan is directly relevant to whether the District
has a genuine commitment to deinstitutionalization.” Pl. Mem. at 10. But plaintiffs
misunderstand the meaning of “commitment” in this context. The commitments that are relevant
here are the concrete, specific commitments contained within the existing Olmstead Plan – not
the abstract commitments that the District may have to equity or inclusion of disabled people.
See, e.g., DOJ Statement; see also Day v. District of Columbia, 894 F. Supp. 2d 1, 28
(D.D.C. 2012) (“[T]here is wide-spread agreement that one essential component of an
‘effectively working’ plan is a measurable commitment to deinstitutionalization.”) (emphasis
added); Frederick L. v. Dep’t of Pub. Welfare of Com. of Pa., 364 F.3d 487, 500 (3d Cir. 2004)
(holding that the governmental agency must “make a commitment to action in a manner for
which it can be held accountable by the courts”) (emphasis added). The timing of the
forthcoming 2021-2024 Olmstead Plan is not at all relevant to whether the operative plan, the
2017-2020 Olmstead Plan, includes measurable commitments to deinstitutionalization.
Moreover, because these documents are direct communications between District
employees, releasing these documents may damage the District’s decision-making processes by
chilling employee discussions and deliberations. See In re Sealed Case, 121 F.3d at 738. For the
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same reasons discussed in Section IV(B)(2)(a), supra, plaintiffs have failed to show that the
thought processes of District employees are relevant to the legal questions before the Court on
remand. The balance of interests therefore favors withholding the documents in paragraph 16 of
the Mingal Declaration.
g. Paragraph 17
The documents listed in paragraph 17 are timelines for developing the 2021-2024
Olmstead Plan, which is not yet in effect. Plaintiffs have failed to make a sufficient showing of
need for these documents. The parties agree that the trial will concern the operative plan, which
is the 2017-2020 Olmstead Plan. See July 22 Tr. at 10:22-23, 15:2-3, 16:11-13. For this reason
and others discussed in Section IV(B)(2)(f), supra, these documents are not relevant to the plan
at issue at trial. See In re Sealed Case, 121 F.3d at 737. The balance of interests favors
withholding the documents in paragraph 17 of the Mingal Declaration.
The same reasoning applies to the document with the following ID number:
• DC_IBrown_00153857
This document is not listed in the Mingal Declaration, but it was withheld pursuant to the
deliberative process privilege and was therefore submitted to the Court for in camera review.
h. Paragraph 18
The documents listed in paragraph 18 are email correspondence concerning the
role of the Department of Health Care Finance in developing the 2021-2024 Olmstead Plan,
which is not yet in effect. Plaintiffs have failed to make a sufficient showing of need for these
documents. Since the parties agree that the trial will concern the operative plan, which is
the 2017-2020 Olmstead Plan, see July 22 Tr. at 10:22-23, 15:2-3, 16:11-13, the documents are
not relevant to the plan at issue at trial, see In re Sealed Case, 121 F.3d at 737. Because these
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documents are direct communications between District employees, releasing these documents
may damage the District’s decision-making processes by chilling employee discussions and
deliberations. See id. at 738. And for the same reasons discussed in Section IV(B)(2)(a), supra,
plaintiffs have failed to show that the thought processes of District employees are relevant to the
legal questions before the Court on remand. The balance of interests therefore favors
withholding the documents in paragraph 18 of the Mingal Declaration.
i. Paragraph 19
The documents listed in paragraph 19 are email correspondence regarding
agendas for group meetings, assignments and next steps, a town hall meeting, and other issues
related to the development of the 2021-2024 Olmstead Plan, which is not yet in effect. Plaintiffs
have failed to make a sufficient showing of need for these documents. Since the parties agree
that the trial will concern the operative plan, which is the 2017-2020 Olmstead Plan, see July 22
Tr. at 10:22-23, 15:2-3, 16:11-13, the documents are not relevant to the plan at issue at trial, see
In re Sealed Case, 121 F.3d at 737. And because these documents are direct communications
between District employees, releasing these documents may damage the District’s
decision-making processes by chilling employee discussions and deliberations. See id. at 738.
For the same reasons discussed in Section IV(B)(2)(a), supra, plaintiffs have failed to show that
the thought processes of District employees are relevant to the legal questions before the Court
on remand. The balance of interests therefore favors withholding these documents.
j. Paragraph 20
The documents listed in paragraph 20 are drafts of and email correspondence
related to a letter and notice issued to the public in December 2019 regarding the 2021-2024
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Olmstead Plan, which is not yet in effect. Plaintiffs have failed to make a sufficient showing of
need for these documents. Since the parties agree that the trial will concern the operative plan,
which is the 2017-2020 Olmstead Plan, see July 22 Tr. at 10:22-23, 15:2-3, 16:11-13, these
documents are not relevant to the plan at issue at trial, see In re Sealed Case, 121 F.3d at 737.
Releasing the email correspondence may damage the District’s decision-making processes by
chilling employee discussions and deliberations. See id. at 738. Moreover, a final version of the
announcement was ultimately published publicly. Plaintiffs therefore can only hope to discover
the thought processes of District employees. For the same reasons discussed in Section
IV(B)(2)(a), supra, plaintiffs have failed to show that the thought processes of District employees
are relevant to the legal questions before the Court on remand. The balance of interests therefore
favors withholding the documents in paragraph 20 of the Mingal Declaration.
k. Paragraph 21
The document listed in paragraph 21 is a spreadsheet showing content from
quarterly reports issued under the current plan, the 2017-2020 Olmstead Plan. Plaintiffs have
failed to make a sufficient showing of need for this document. The spreadsheet includes
comments from District employees concerning what information might be included in a
forthcoming report under the current plan. The District has already produced a version of the
spreadsheet with the comments redacted. Plaintiffs therefore can only hope to discover the
thought processes of District employees. For the same reasons discussed in Section IV(B)(2)(a),
supra, plaintiffs have failed to show that the thought processes of District employees are relevant
to the legal questions before the Court on remand. The balance of interests therefore favors
withholding the document in paragraph 21 of the Mingal Declaration.
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l. Paragraph 22
The two documents listed in paragraph 22 are protected by the deliberative
process privilege. The first document is a draft of the District’s Statewide Transition Plan. This
document provides a comprehensive assessment of the District’s compliance with a 2014
regulation issued by The Centers for Medicare & Medicaid Services establishing requirements
for supporting and integrating people receiving Medicaid Home and Community-Based Services.
The second document is a draft of the District’s Policy and Procedures Manual for the D.C.
Department of Health Care Finance’s Long Term Care Administration. That document shows
comments and tracked changes by District employees.
Neither party has explained how these documents are relevant to either
the 2017-2020 Olmstead Plan or the 2021-2024 Olmstead Plan. Even assuming, however, that
either or both documents are relevant to the questions before the Court on remand, final versions
of these documents have already been produced to plaintiffs or published publicly. Plaintiffs
therefore can only hope to discover the thought processes of District employees. For the same
reasons discussed in Section IV(B)(2)(a), supra, plaintiffs have failed to show that the thought
processes of District employees are relevant to the legal questions before the Court on remand.
The balance of interests therefore favors withholding the document in paragraph 22 of the
Mingal Declaration.
m. Other factors
When determining whether the deliberative process privilege is overcome by a
showing of need, courts must also consider the seriousness of the litigation and the role of the
government. In re Sealed Case, 121 F.3d at 138. The Court recognizes and appreciates the
seriousness of this litigation. “[T]he unjustified segregation of disabled individuals in
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institutions is a form of disability discrimination barred by federal law.” Brown v. District of
Columbia, 928 F.3d at 1073. In addition, the role of the government in this litigation is of central
importance, as the primary question for the Court is whether the District of Columbia has an
adequate Olmstead Plan in place. See id. at 1084. These two factors therefore might in some
cases weigh in favor of disclosure, but not here. The Court concludes that these two factors do
not overcome the central issue of relevance.
Plaintiffs bear the burden of demonstrating sufficient need for the withheld
documents. They cannot make that showing of need where, as here, the documents are irrelevant
to the legal questions before the Court on remand: whether the current Olmstead Plan – the
2017-2020 Olmstead Plan – is adequate and, if not, whether the plaintiffs’ requested
accommodations would require an unreasonable transfer of resources from other disabled
individuals. Those questions can only be answered using evidence concerning the currently
operative plan.
V. CONCLUSION
For the foregoing reasons, the Court will sustain the District of Columbia’s claims
of deliberative process privilege for the documents submitted in camera pursuant to this Court’s
July 29, 2021 order. An Order consistent with this Opinion will issue this same day.
SO ORDERED.
________________________
/s/
PAUL L. FRIEDMAN
United States District Judge
DATE: August 31, 2021
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