Heffernan v. United States Department of Health and Human Services

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
HENRY G. HEFFERNAN, )
)
Plaintiff, )
)
v. )
) Civil Action No. 15-2194 (RBW)
1
ALEX AZAR, in his official capacity as )
Secretary of the United States Department )
of Health and Human Services, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
The plaintiff, Henry G. Heffernan, initiated this action against the defendant, Alex Azar,
in his official capacity as Secretary of the United States Department of Health and Human
Services (“HHS”), alleging multiple violations of the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552 (2012). See generally Complaint (“Compl.”). Currently before the Court are the
Defendant’s Motion for Summary Judgment (“Def.’s Mot.”), ECF No. 25, and the Plaintiff’s
Opposition to Summary Judgment and Cross-Motion for Summary Judgment (“Pl.’s Mot.”),
ECF No. 27. Upon careful consideration of the parties’ submissions, 2 the Court concludes for
1
Alex Azar is the current Secretary of the United States Department of Health and Human Services, see HHS
Secretary, U.S. Dep’t of Health & Human Services, https://www.hhs.gov/about/leadership/secretary/index.html (last
visited June 7, 2018), and he is therefore substituted for Eric Hargan as the proper party defendant pursuant to
Federal Rule of Civil Procedure 25(d). However, although Azar is now the named defendant in this case, the Court
will reference the United States Department of Health and Human Services as the defendant throughout this opinion.
2
In addition to filings already identified, the Court considered the following submissions in rendering its decision:
(1) the Memorandum of Points and Authorities in Support of Defendant’s Motion for Summary Judgment (“Def.’s
Mem.”); (2) the Defendant’s Statement of Material Facts as to Which There is No Genuine Issue (“Def.’s Facts”);
(3) the defendant’s first Declaration of Susan Cornell (May 4, 2016) (“First Cornell Decl.”), ECF No. 26-1; (4) the
defendant’s Declaration of Katherine Uhl (“Uhl Decl.”); (5) the defendant’s Third [Vaughn] Index of Challenged
Withholdings (“Third Vaughn Index”); (6) the Plaintiff’s Memorandum of Points and Authorities in Support of
Opposition to Summary Judgment and Cross-Motion for Summary Judgment (“Pl.’s Mem.”); (7) the Plaintiff’s
Response to Agency Statement of Material Facts (“Pl.’s Resp.”) and the Plaintiff’s Statement of Material Facts Not
(continued . . .)
the reasons that follow that it must grant in part and deny in part without prejudice the
defendant’s motion for summary judgment and deny the plaintiff’s cross-motion for summary
judgment.
I. BACKGROUND
The undisputed facts relevant to the parties’ cross-motions are the following. See
generally Pl.’s Resp. (not disputing any of the facts contained in the defendant’s statement of
facts); Def.’s Resp. (not disputing any of the facts contained in the plaintiff’s statement of facts).
The “[p]laintiff . . . is a Roman Catholic Priest who served for two decades as a Roman Catholic
chaplain within the HHS, National Institute of Health (NIH) Clinical Center’s Department of
Spiritual Ministry, Department of Spiritual Care (‘SMD’).” Pl.’s Facts ¶ 1. “In 2007, the NIH
Clinical Center assembled an outside panel of experts in spiritual ministry chaplaincy to review
the operations of the Department of Spiritual Ministry and make recommendations for the
policies and practices to ensure that [it] met the best standards for professional spiritual ministry
practice.” Id. ¶ 2. “As a staff chaplain at the NIH Clinical Center, [the plaintiff] participated in
the [ ] 2007 [o]perational [r]eview discussions with the outside experts.” Id. ¶ 7; see also id. ¶ 8
(noting some of the ways in which the plaintiff participated in the operational review).
Ultimately, “[t]he review panel made recommendations to HHS. However, not all of those
(. . . continued)
in Dispute (“Pl.’s Facts”); (8) the Declaration of Rev. Henry G. Heffernan (“Heffernan Decl.”); (9) the defendant’s
Memorandum of Points and Authorities in Opposition to Plaintiff’s Cross-Motion for Summary Judgment and in
Reply to Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment (“Def.’s Reply”); (10) the
Defendant’s Response to Plaintiff’s[ ]Statement of Material Facts Not in Dispute (“Def.’s Resp.”); (11) the
defendant’s Declaration of Gorka Garcia-Malene (“Garcia-Malene Decl.”); (12) the defendant’s Declaration of John
M. Pollack (“Pollack Decl.”); (13) the defendant’s Declaration of David K. Henderson (“Henderson Decl.”); (14)
the defendant’s Declaration of Laura M. Lee (“Lee Decl.”); (15) the defendant’s Supplemental Declaration of Gorka
Garcia-Malene (“Garcia-Malene Supp. Decl.”); (16) the defendant’s second Declaration of Susan Cornell (Apr. 22,
2016) (“Second Cornell Decl.”), ECF No. 34-1; (17) the Plaintiff’s Reply Brief in Support of Plaintiff’s Cross-
Motion for Summary Judgment (“Pl.’s Reply”); (18) the Supplemental Declaration of Rev. Henry G. Heffernan
(“Heffernan Supp. Decl.”); (19) the defendant’s third declaration of Susan Cornell (Dec. 14, 2016) (“Third Cornell
Decl.”), ECF No. 21-1; and (20) the Plaintiff’s Praecipe Regarding Vaughn Index and Document Search
(“Praecipe”).
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recommendations were communicated to the chaplains.” Id. ¶ 9. Based on the panel’s
recommendations, the Clinical Center began considering changes to its operations and policies.
See id. ¶¶ 10–18 (discussing team meetings and the use of focus groups facilitated by an outside
consultant to determine what changes were necessary). The plaintiff “retired from HHS in
2013.” Id. ¶ 1.
On March 19, 2014, the plaintiff submitted to the defendant a FOIA request
seeking certain specified records concerning [(1)] the [o]perational [r]eview of the
Department of Spiritual Ministry that occurred in approximately July 2007, [(2)]
the Clinical Research Advisory Board [m]eeting that occurred in approximately
September 2007, [(3)] the Marit 2008-2009 Organization Development Focus
Group Study of the Department of Spiritual Ministry/Department of Spiritual Care,
conducted by Diana Marit Kunkel, Ph.D., and (4) all current approved policies,
procedures and standards of practice . . . specific to the Department of Spiritual
Ministry/Department of Spiritual Care.
Def.’s Facts ¶ 1; see also Pl.’s Resp. ¶ 1 (not disputing these facts). On July 22, 2014, the
defendant provided the plaintiff with an initial response to his FOIA request by “ma[king] an
interim release . . . consisting of [thirty-five] pages.” Def.’s Facts ¶ 2; see also Pl.’s Resp. ¶ 2.
On September 25, 2014, the defendant “made a final release to [the] plaintiff consisting of 614
pages of responsive records,” some of which contained information that was withheld pursuant
to Exemptions 5 and 6 of the FOIA. Def.’s Facts ¶ 3; see also Pl.’s Resp. ¶ 3. “On October 29,
2014, [the p]laintiff appealed [the d]efendant’s ‘final response’” internally according to the
defendant’s FOIA procedures, Pl.’s Facts ¶ 26; see also Def.’s Resp. ¶ 26, and on December 17,
2015, while the defendant was processing that appeal, the plaintiff filed his Complaint
commencing this case, see Pl.’s Facts ¶ 28; see also Def.’s Resp. ¶ 28.
After the filing of this case, “[o]n April 22, 2016, the [d]efendant produced its first
Vaughn Index and sworn declaration.” Pl.’s Facts ¶ 30; see also Def.’s Resp. ¶ 30. The plaintiff
challenged certain discrepancies in the defendant’s Vaughn Index, “asked for clarification
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regarding missing explanations for [certain] redactions,” and requested that the defendant
conduct “a search for records responsive to [certain i]tems . . . and [to produce] a list of records
that appear[ed] to be missing.” Pl.’s Facts ¶¶ 32–33; see also Def.’s Resp. ¶¶ 32–33. The
defendant agreed to conduct the additional search for responsive documents requested by the
plaintiff and to provide the plaintiff with the requested supplemental information. See Pl.’s Facts
¶ 36; see also Def.’s Resp. ¶ 36. On August 15, 2016, the defendant “produced its [s]econd
Vaughn Index, [but] without a supplemental declaration.” Pl.’s Facts ¶ 39; see also Def.’s Resp.
¶ 39. The plaintiff had largely the same concerns with the defendant’s second Vaughn Index as
already expressed, see Pl.’s Facts ¶¶ 40–42; see also Def.’s Resp. ¶¶ 40–42, and the defendant
also failed to provide the plaintiff with the agreed-upon supplemental information, see Pl.’s Facts
¶¶ 43–44; see also Def.’s Resp. ¶¶ 43–44. The parties discussed the situation, and the defendant
again agreed to provide the plaintiff with the supplemental information. See Pl.’s Facts ¶¶ 45–
47; see also Def.’s Resp. ¶¶ 45–47. Because he did not receive the supplemental information as
promised, on November 14, 2016, the “[p]laintiff filed a Motion for a Complete Vaughn Index.”
Pl.’s Facts ¶ 48; see also Def.’s Resp. ¶ 48. “Subsequent to that filing, the [defendant] agreed [ ]
once again” to provide the plaintiff with the supplemental information, Pl.’s Facts ¶ 49; see also
Def.’s Resp. ¶ 49, and on January 2, 2017, “[t]he Court affirmed that agreement,” Pl.’s Facts
¶ 50; see also Def.’s Resp. ¶ 50.
On January 31, 2017, the defendant produced “its [t]hird Vaughn Index and [an
additional] declaration from [its a]cting FOIA Officer.” Pl.’s Facts ¶ 51; see also Def.’s Resp.
¶ 51. The defendant “also produced a few additional pages[] and re-produced documents
previously produced without certain prior redactions.” Pl.’s Facts ¶ 52; see also Def.’s Resp.
¶ 52. And, on February, 21, 2017, the defendant made an additional production that
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corresponded with the Third Vaughn Index. Pl.’s Facts ¶¶ 55, 57; see also Def.’s Resp. ¶¶ 55,
57. Later, on July 19, 2017, the defendant filed its motion for summary judgment on the
plaintiff’s claims, asserting that it “conducted adequate searches for responsive records, and it
[provided to the] plaintiff all of the records to which he is entitled.” Def.’s Mem. at 1. The
plaintiff then filed his opposition to the defendant’s motion for summary judgment, along with
his cross-motion for summary judgment, arguing that the defendant failed to conduct adequate
searches and that it improperly withheld information pursuant to several FOIA exemptions. See
generally Pl.’s Mem. Given that the parties have now fully briefed their cross-motions for
summary judgment, these motions are now ripe for the Court’s review.
II. STANDARD OF REVIEW
The Court must grant a motion for summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). When ruling on a motion for summary judgment, the Court must
view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433
F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150
(2000)). The Court must therefore draw “all justifiable inferences” in the non-moving party’s
favor and accept the non-moving party’s evidence as true. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). The non-moving party, however, cannot rely on “mere allegations or
denials.” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at
248). Thus, “[c]onclusory allegations unsupported by factual data will not create a triable issue
of fact.” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999)
(Garland, J., concurring) (alteration in original) (quoting Exxon Corp. v. FTC, 663 F.2d 120,
126–27 (D.C. Cir. 1980)). If the Court concludes that “the nonmoving party has failed to make a
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sufficient showing on an essential element of [its] case with respect to which [it] has the burden
of proof,” then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). At bottom, “in ruling on cross-motions for summary judgment, the
[C]ourt shall grant summary judgment only if one of the moving parties is entitled to judgment
as a matter of law upon material facts that are not genuinely disputed.” Shays v. FEC, 424 F.
Supp. 2d 100, 109 (D.D.C. 2006).
“FOIA cases typically are resolved on a motion for summary judgment.” Ortiz v. U.S.
Dep’t of Justice, 67 F. Supp. 3d 109, 116 (D.D.C. 2014); see also Defs. of Wildlife v. U.S.
Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). “[The] FOIA requires federal agencies to
disclose, upon request, broad classes of agency records unless the records are covered by the
statute’s exemptions.” Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 833
(D.C. Cir. 2001). In a FOIA action, the defendant agency has “[the] burden of demonstrating
that the withheld documents are exempt from disclosure.” Boyd v. U.S. Dep’t of Justice, 475
F.3d 381, 385 (D.C. Cir. 2007) (citation omitted). The Court will grant summary judgment to
the government in a FOIA case only if the agency can prove “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.” Friends of Blackwater v. U.S.
Dep’t of Interior, 391 F. Supp. 2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep’t of
Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998)). Thus, in a lawsuit brought to compel the
production of documents under the FOIA, “an agency is entitled to summary judgment if no
material facts are in dispute and if it demonstrates ‘that each document that falls within the class
requested either has been produced . . . or is wholly[, or partially,] exempt [from disclosure].’”
Students Against Genocide, 257 F.3d at 833 (omission in original) (quoting Goland v. CIA, 607
6
F.2d 339, 352 (D.C. Cir. 1978)).
III. ANALYSIS
The plaintiff primarily challenges the adequacy of the defendant’s searches for
responsive records regarding the: (1) 2008–2010 SMD policies, (2) 2007 operational review, fall
2007 chaplain meetings, and 2007 Advisory Board meeting, (3) fall 2007 chief operating
officer’s Power Point presentation, and (4) John Pollack’s e-mail responses to a July 27, 2009
e-mail. See Pl.’s Reply at 2–11. The plaintiff also challenges the defendant’s withholdings
pursuant to the deliberative process privilege of FOIA Exemption 5, see id. at 12–21, and the
adequacy of the defendant’s explanations provided in its Vaughn Index, see id. at 22–30. 3 The
Court will address each of the plaintiff’s challenges in turn.
A. The Adequacy of the Defendant’s Searches
“The adequacy of an agency’s search is measured by a standard of reasonableness, and is
dependent upon the circumstances of the case.” Truitt v. U.S. Dep’t of State, 897 F.2d 540, 542
(D.C. Cir. 1990) (internal quotation marks omitted). To satisfy its burden to show that no
genuine issue of material fact exists as to the adequacy of its search, the agency must show that
each agency component “has conducted a search reasonably calculated to uncover all relevant
documents,” Elliot v. U.S. Dep’t of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (quoting
Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)), and it may make this
showing based on affidavits or declarations submitted in good faith, provided that the affidavits
or declarations explain in reasonable detail the scope and method of the search, see Morley v.
3
In his cross-motion, the plaintiff had also contested the Agency’s withholdings pursuant to FOIA Exemption 5’s
attorney-client privilege and FOIA Exemption 6. See Pl.’s Mem at 38, 39. In his reply in support of his
cross-motion, the plaintiff states that he “no longer disputes” these withholdings “[a]fter reviewing the defendant’s]
additional explanations” regarding these withholdings provided in the Garcia-Malene declaration. Pl.’s Reply at 30.
Accordingly, given the plaintiff’s withdrawal of these challenges, the Court need not consider these challenges in its
analysis.
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CIA, 508 F.3d 1108, 1116 (D.C. Cir. 2007) (citing Goland, 607 F.2d at 352). “In the absence of
contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s
compliance with [the] FOIA.” North v. U.S. Dep’t of Justice, 774 F. Supp. 2d 217, 222 (D.D.C.
2011) (citing Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)). There is no requirement that
an agency’s search every record system in response to a FOIA request; rather, it may limit its
search to only those locations where responsive documents likely are maintained. See Porter v.
CIA, 778 F. Supp. 2d 60, 69 (D.D.C. 2011) (holding that there “[was] no genuine issue as to the
adequacy of the [agency’s] search” given that it searched the “likely databases for responsive
documents”). The question a court must answer in considering the adequacy of an agency’s
search is “not whether other responsive documents may exist, but whether the search itself was
adequate.” Moore v. Bush, 601 F. Supp. 2d 6, 13 (D.D.C. 2009) (citing Steinberg v. U.S. Dep’t
of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994)). However, if the record “leaves substantial doubt
as to the sufficiency of the search, summary judgment for the agency is not proper.” Belltranena
v. Clinton, 770 F. Supp. 2d 175, 183 (D.D.C. 2011) (quoting Truitt, 897 F.2d at 542).
1. The SMD’s Clinical Center Policies from 2008 Through 2010
The plaintiff first contends that the defendant failed to “search[] for Clinical Center
policies maintained about NIH chaplains in the Department of Spiritual Care/Ministry, or the
SMD policies from 2008–2010 resulting from the [o]perational [r]eview [a]ction [p]lan.” Pl.’s
Mem. at 11–12. Specifically, the plaintiff argues that the search was unreasonable because (1)
“such policies must exist and should have been produced had the [defendant] conducted an
appropriate search,” id. at 12, (2) that the defendant’s hard copy search for such policies was
limited to its 2014 policies, see id. at 14, and (3) that the defendant’s electronic search was
limited to the calendar year 2007, see id., and did not include search terms “reasonably likely to
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uncover such policies,” Pl.’s Reply at 3; see also Pl.’s Mem. at 14. Thus, according to the
plaintiff, the defendant “failed to perform a good faith search of all potential locations for
responsive records, in both electronic and hard copy format, using reasonably-tailored search
terms and the relevant time period at issue.” Pl.’s Mem. at 14.
The Court concludes, however, that the defendant “conducted a search reasonably
calculated to uncover all relevant documents,” Elliot, 596 F.3d at 851 (citation omitted), and
therefore, the defendant’s search for the Clinical Center’s policies from 2008 through 2010 was
adequate. The Court begins its analysis with the appreciation that “the adequacy of a FOIA
search is generally determined not by the fruits of the search, but by the appropriateness of the
methods used to carry out the search,” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315
(D.C. Cir. 2003) (citing Steinberg, 23 F.3d at 551). And, “[i]n this [C]ircuit, it is clear that a
plaintiff’s unsubstantiated belief that missing records exist cannot demonstrate the inadequacy of
an agency’s search[, and this] [ ] Circuit has dismissed as ‘mere speculation’ similar arguments
from plaintiffs that the agency did not locate documents that the plaintiffs suspected to exist.”
Parker v. U.S. Immig. & Customs Enf’t, 238 F. Supp. 3d 89, 102 (D.D.C. 2017) (quoting Baker
& Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006)). Thus, as the
defendant correctly notes, the issue the Court must resolve is whether the defendant’s search for
the requested policies was adequate, not whether those policies in fact exist. See Def.’s Reply at
4. Consequently, contrary to the plaintiff’s proposition that these policies must exist, see Pl.’s
Mem. at 12–13 (reaching this conclusion because “there was every indication at the time that the
SMD was issuing new policies and procedures as a result of the [o]perational review,” and
because the Joint Commission Standards require hospitals to have formal policies governing
each department of a hospital”); see also Pl.’s Reply at 4 (alleging that the SMD “changed its
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practices regarding the chaplains’ assignments” as a result of the 2007 operational review), the
plaintiff’s conjecture and speculative arguments that policies that must have been adopted have
not been produced has no bearing on the Court’s determination of whether the defendant’s search
was adequate, see Parker, 238 F. Supp. 3d at 103 (holding that the plaintiff’s “conjecture about
the possible existence of other documents fail[ed] to show that the agency’s search was
inadequate”). In any event, John M. Pollack, the Chief of the Spiritual Care Department, see
Pollack Decl. ¶ 1, affirmed that “[n]o new policies were put into practice as a result of the 2007
operational review,” id. ¶ 3. Additionally, Laura M. Lee, the Director of the Office of Patient
Safety and Clinical Quality at NIH, see Lee Decl. ¶ 1, has represented that
[t]he Joint Commission standards do not explicitly and prescriptively direct what
information should be included in the portfolio of policies and procedures for
spiritual care. The standards provided general guidance about the need to assure
that each patient’s spiritual needs are met. How the organization meets those needs
must be determined by the hospital.
Id. ¶ 3.
Moreover, the plaintiff’s challenges to the methods used by the defendant to search for
the requested policies do not give the Court “substantial doubt as to the sufficiency of the
[defendant’s] search.” Belltranena, 770 F. Supp. 2d at 183 (citation omitted). As support for its
position that its search for the requested policies was adequate, the defendant submitted the
declarations of Katherine Uhl, the NIH’s former acting FOIA officer, see Uhl Decl. ¶ 1, and
Gorka Garcia-Malene, the NIH’s current acting FOIA officer, see Garcia-Malene Decl. ¶ 6(1). 4
4
The defendant also submitted the declaration of Susan Cornell, who was the NIH’s FOIA officer prior to Uhl. See
generally First Cornell Decl. In her declaration, Cornell notes that “[t]he [Clinical Center] searched for responsive
documents where they were likely to be located, namely on its ‘share[d] drive’ as well as the electronic, hard copy
and e[-]mail files of those [ ] employees who [were] in position to possess such records.” Id. ¶ 7. This search was
limited to “records created/maintained during May[ through ]October 2007,” id. ¶ 6, and for the e-mail files, “[t]he
[Clinical Center] utilized the search term ‘spiritual ministry,’” id. ¶ 7. However, Cornell explained that this search
was performed “for records responsive to all of the [plaintiff’s FOIA] requests,” except for two items that are not
related to the plaintiff’s request for the Clinical Center’s policies from 2008–2010. Id. ¶ 6.
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In her declaration, Uhl states that the Clinical Center “search[ed] its files for records related to
policies and guidelines from 2008–2010,” and that “all [of the Spiritual Care Department’s]
policies and guidelines are housed in a policy book within the department.” Uhl Decl. ¶ 4(1).
Uhl also states that “[t]here are no other places to search for such information that would
reasonably be expected to have a policy or guideline not contained in this policy book,” and that
“[t]his book was searched for records considered responsive.” Id. 5 Furthermore, Garcia-Malene
represents that, in response to “the numerous allegations of insufficient searches, on November
8, 2017, the [Spiritual Care Department] again searched the policy book, and then also
performed an electronic search and a search for paper files for policies and guidelines from
2008–2010.” Garcia-Malene Decl. ¶ 6(1). Garcia-Malene also represents that
Pollack’s computer hard drive, network drive and [the Spiritual Care Department’s]
shared drive were searched, as documents created in connection with policies could
be on the IT network drive assigned to the department Chief and/or the department
shared drive. During this search, the individual keywords “policies”, “policy”, “op
review”, “operational review”, “SMD”, “Spiritual Ministry”, “Pollack”, “Maureen
Gormley”, “Gormley”, “Operational Review response”, and “operational review
action plan” were used.
Id. Additionally, “Pollack [ ] searched his office file cabinets and overhead bin, as any work
product of this nature could be filed in the Chief’s office. File folders labeled ‘operational
review’ and ‘policies’ were searched on October 2, 2017, but no new records were found during
these . . . searches.” Id.
Based on these representations, the Court finds that the defendant has sufficiently
established that its search for the requested policy documents was adequate and reasonably
calculated to discover documents responsive to the requests. See Valencia-Lucena v. U.S. Coast
5
The defendant also conducted a search of “electronic and paper files for the policy documents” using “SMD,
Spiritual Ministry, [and] Gormley” as search terms. Uhl decl. ¶ 6. This search did not uncover any responsive
documents. See id.
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Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (“[T]he court may rely on ‘[a] reasonably detailed
[declaration], setting forth the search terms and the type of search performed, and averring that
all files likely to contain responsive materials (if such records exist) were searched.’” (second
alteration in original) (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.
1990))). The defendant’s declarations “explain[ ] in adequate detail that all systems likely to
contain responsive records were searched.” Hall v. CIA, 881 F. Supp. 2d 38, 58 (D.D.C. 2012).
In fact, the defendant conducted multiple searches of the Spiritual Care Department’s policy
book, the only place likely to contain the Clinical Care policies sought by the plaintiff. See Uhl
Decl. ¶ 4(1); see also Garcia-Malene Decl. ¶ 6(1). And, the defendant went beyond the policy
book, searching electronic files using reasonably tailored search terms and paper files of
employees likely to possess the policies sought by the plaintiff. See Airaj v. United States, No.
15-983 (ESH), 2016 WL 1698260, at *7 (D.D.C. Apr. 27, 2016) (“[T]he [ ] Circuit has held that
the performance of additional searches following an agency’s initial response to a FOIA request
not only does not discredit the original search, but to the contrary, actually indicates good faith
and ‘suggest[s] a stronger . . . basis for accepting the integrity of the search.’” (omission and
third alteration in original) (quoting Meeropol v. Meese, 790 F.2d 942, 953 (D.C. Cir. 1986))).
Consequently, it cannot be said that the defendant did not “ma[ke] a ‘good faith effort to conduct
a search . . . using methods which can be reasonably expected to produce the information
requested.” Dibacco v. U.S. Army, 795 F.3d 178, 188 (D.C. Cir. 2015) (omission in original)
(quoting Oglesby, 920 F.2d at 68).
It is also significant that the plaintiff does not contest any of the representations made by
the defendants’ declarants regarding their searches, see Pl.’s Reply at 2–4, or produce any
“‘countervailing evidence’ as to the adequacy of the [defendant’s] search[es],” Iturralde, 315
12
F.3d at 314 (quoting Founding Church of Scientology of Wash., D.C., Inc. v. Nat’l Sec. Agency,
610 F.2d 824, 836 (D.C. Cir. 1979)), or assert that the defendant did not make a good faith
search, see Defs. of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004) (“An
adequate [declaration] can be rebutted only with evidence that the agency’s search was not made
in good faith.” (citation and internal quotation marks omitted)). Rather, the plaintiff primarily
argues that the defendant’s electronic search did not utilize search terms that were “likely to
result in locating responsive records.” Pl.’s Reply at 4; see also id. at 3–4 (listing sixteen search
terms that the defendant should have employed in order for the Court to conclude that the
defendant conducted a thorough search). 6 However, “[a]gencies generally have ‘discretion in
crafting a list of search terms’ as long as they are ‘reasonably tailored to uncover documents
responsive to the FOIA request.’” Tushnet v. U.S. Immig. & Customs Enf’t, 246 F. Supp. 3d
422, 434 (D.D.C. 2017) (quoting Bigwood v. U.S. Dep’t of Def., 132 F. Supp. 3d 124, 140–41
(D.D.C. 2015)). And, “[w]here the agency’s search terms are reasonable, the Court will not
second guess the agency regarding whether other search terms might have been superior.” Id.
(internal quotation marks omitted) (quoting Liberation Newspaper v. U.S. Dep’t of State, 80 F.
Supp. 3d 137, 146 (D.D.C. 2015)).
Here, although the defendant does not explain why it selected the search terms it used,
see Garcia-Malene Decl. ¶ 6(1), the Court nonetheless finds the search terms that were employed
were reasonable. The Court so concludes because after comparing the search terms utilized in
response to the plaintiff’s FOIA request as modified by the Court’s January 2, 2017 Minute
6
In his declaration, the plaintiff also asserted that the defendant’s search was not adequate because the defendant did
not search the “primary institutional file” for the Deputy Director for Clinical Care Center of NIH, see Heffernan
Decl. ¶ 28(f). In response, the defendant submitted the declaration of David K. Henderson, the Deputy Director for
Clinical Care and Associate Director for Quality Assurance and Hospital Epidemiology at NIH, see Henderson Decl.
¶ 1, who represented that “[t]he Deputy Director of Clinical Care does not maintain a file of Clinical Center
approved policies,” id. ¶ 3.
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Order, 7 “it [ ] appears more than likely that the terms utilized would identify responsive
documents,” Bigwood, 132 F. Supp. 3d at 141; see also Pl.’s Reply at 4 (including in his list of
proposed search terms, some of the search terms the defendant actually used (i.e., “policy”,
“policies,” and “[a]ction [p]lan”)). Moreover, even though “a FOIA petitioner cannot dictate the
search terms [that must be used in response to his] . . . FOIA request,” Bigwood, 132 F. Supp. 3d
at 140, there is no indication that the plaintiff requested the defendant to employ these proposed
search terms either in his FOIA request or subsequent negotiations regarding the defendant’s
searches for responsive documents. And “[t]he plaintiff’s insistence on [his] own preferred
search terms does not undermine the reasonableness of the [defendant’s] search terms.” Agility
Pub. Warehousing Co. K.S.C., v. Nat’l Sec. Agency, 113 F. Supp. 3d 313, 339 (D.D.C. 2015)
(emphasis in original). Thus, the Court finds the search terms used by the defendant to search
for the Clinical Center’s policies from 2008–2010 were reasonable and adequate.
In sum, “[t]he plaintiff has presented no grounds for upsetting the presumption of
regularity afforded to [the defendant’s] declarations, and the Court finds that the declarations are
reasonably detailed and the [defendant’s] search [for any policies from 2008–2010] was
reasonably calculated to lead to [the discovery of] responsive documents.” Id. at 340.
Accordingly, the Court must grant this aspect of the defendant’s motion for summary judgment
and deny this component of the plaintiff’s cross-motion for summary judgment.
2. Records Regarding the 2007 Operational Review
The plaintiff also argues that the defendant “performed an inadequate search for
responsive e[-]mails, notes, statements, correspondence, and records pertaining to the 2007
[o]perational [r]eview . . . and the Clinical Research Advisory Board meeting in September
7
To resolve the plaintiff’s motion for a complete Vaughn Index, the parties agreed to modify the scope of the
plaintiff’s FOIA request and to limit the defendant’s search efforts to certain parameters. See generally Praecipe.
14
2007.” Pl.’s Mem. at 15. In response, the defendant maintains that it conducted multiple
searches for documents responsive to this aspect of the plaintiff’s FOIA request that were
adequate under the FOIA. See Def.’s Reply at 10.
To demonstrate that its search was adequate and reasonable, the defendant submitted
Garcia-Malene’s declaration, which represents that the defendant performed searches on January
9, 2017, and on November 8, 2017, for documents responsive to this aspect of the plaintiff’s
FOIA request. See Garcia-Malene Decl. ¶ 6(2). On January 9, 2017, Maureen Gormley, Sandy
Seubert, Pollack, Dana Kelley, Dominic Ashkar, and Diana Gomez de Molina, “the individuals
most likely to have responsive records,” each conducted a “search for e-mail correspondence
from the fall of 2007, involving the Chief Operating Officer, her staff, and chaplains, that
discussed the problems that arose when the chaplains attempted to implement the tentative
assignments to nursing units, and comply with the activities in the Operational Review Team’s
recommendations.” Id. (internal quotation marks omitted). This electronic search employed the
following search terms: “Heffernan,” “Gormley,” “Checking in,” “Spiritual Ministry,” and
“2007.” Id. (referring to Uhl’s declaration). “[T]o ensure [that] a comprehensive search was
completed,” on November 8, 2017, the defendant requested that the same individuals conduct “a
new search for records in this category.” Id. These individuals “search[ed] their computer[s]
[and] network files, both shared and personal, outlook (e[-]mail) folders, paper files, and any
other place that would likely house responsive documents,” and utilized the following search
terms: “Dominic Ashkar,” “Diana Gomez de Molina,” “Dana Kelley,” “Owen Fitzgerald,”
“Spiritual Ministry,” “Operational Review,” “Fall 2007,” “Spiritual Ministry Operational
Review,” “Maureen Gormley,” “Staff assigned departments,” “Walter Jones,” and “Staff
meetings.” Id. According to Garcia-Malene, these search terms were selected because they
15
“would likely have located all responsive records as they all relate to the SMD operational
review and/or are persons associated with [the Spiritual Care Department] who would have been
privy to the changes of [the Spiritual Care Department].” Id. Lastly, Garcia-Malene stated that
“[t]he word ‘and’ was not included with respect to these search terms, nor was any other
limitation imposed in connection with these search terms.” Id. 8
The Court finds that the defendant’s search for records regarding the 2007 operational
review, chaplain staff meetings, and Advisory Board meetings was reasonable and adequate.
The Garcia-Malene declaration “explain[s] in reasonable detail the scope and method of the
search conducted by the [defendant sufficient] to demonstrate compliance with the obligations
imposed by the FOIA.” Perry, 684 F.2d at 127. The Garcia-Malene declaration also “set[s] forth
the search terms and the type of search performed, and aver[s] that all files likely to contain
responsive materials . . . were searched.” Valencia–Lucena, 180 F.3d at 326 (citation omitted).
Because, the Garcia-Malene declaration is entitled to be “accorded a presumption of good faith,”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and the plaintiff has not
produced any “countervailing evidence” to rebut this presumption, Iturralde, 314 F.3d at 314
(citation and internal quotation marks omitted); see also Pl.’s Reply at 4–8, the Garcia-Malene
declaration “leave[s] . . . this Court confident that the [defendant] ha[s] conducted searches
reasonably calculated to uncover all relevant documents,” Defs. of Wildlife, 623 F. Supp. 2d at
91.
Despite not contesting the reasonableness of Garcia-Malene’s declaration, the plaintiff
contends that the defendant’s search was deficient (1) because it “did not locate records of the
8
The January 9, 2017 search located eleven pages of records responsive to this component of the plaintiff’s FOIA
request, which were produced to the plaintiff. See Garcia-Malene Decl. ¶ 2. The November 8, 2017 search
disclosed “[n]o new records.” Id.
16
fall 2007 meetings between [Chief Operating Officer] Gormley and the chaplains about the new
nursing unit assignments,” records which he “knows . . . exist because he saw them during his
employment with [HHS],” Pl.’s Mem. at 17 (recalling details of the assignment spreadsheets),
and (2) because it did not utilize “search terms that would be likely to result in the 2007 chaplain
assignment spreadsheets, Advisory Board meetings, chaplain meetings records, or records
related to the implementation or adoption of the [Operational Review Team] report,” Pl.’s Reply
at 5. However, the Court finds these arguments unpersuasive.
Regarding the plaintiff’s challenge to the defendant’s search based on the defendant’s
inability to locate records related to the 2007 chaplain meetings about new nursing unit
assignments, see Pl.’s Mem. at 17, as the Court previously noted, “a search is not inadequate
simply because it failed to yield every document that [the p]laintiff seeks,” Shores v. FBI, 185 F.
Supp. 2d 77, 82 (D.D.C. 2002); see also SafeCard Servs., Inc., 926 F.2d at 1201 (“When a
plaintiff questions the adequacy of the search an agency made in order to satisfy its FOIA
request, the factual question it raises is whether the search was reasonably calculated to discover
the requested documents, not whether it actually uncovered every document extant.”). In
addition, “[i]t is long settled that the failure of an agency to turn up one specific document in its
search does not alone render [the] search inadequate . . . [because] particular documents may
have been accidentally lost or destroyed, or a reasonable and thorough search may have missed
them.” Judicial Watch, Inc. v. U.S. Dep’t of State, 177 F. Supp. 3d 450, 458 (D.D.C. 2016)
(omission and first and third alterations in original) (quoting Iturralde, 315 F.3d at 315).
Furthermore, as the defendant correctly notes, see Def.’s Reply at 9–10 (asserting that “[t]he fact
that certain documents were passed out to individuals in 2007, does not mean that any of those
documents were still in[ ]existence in March of 2014[,] when [the] plaintiff’s FOIA request was
17
made” (citation omitted)),
[i]t is well settled that a FOIA request pertains only to documents in the possession
of the agency at the time of the FOIA request. That an agency once possessed
responsive documents but does not at the time of the FOIA request does not
preclude summary judgment in the agency’s favor. FOIA does not impose a
document retention requirement on agencies.
Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59, 66 (D.D.C. 2003) (citations omitted); see
also DiBacco, 795 F.3d at 190 (“FOIA is not a wishing well; it only requires a reasonable search
for records an agency actually has.”); Wadelton v. U.S. Dep’t of State, 208 F. Supp. 3d 20, 27
(D.D.C. 2016) (“While an agency violates its FOIA obligations by destroying records once a
FOIA request has been received, any previous failure to preserve records related to pending or
imminent litigation is not a FOIA violation.”). Thus, the Court does not find this first challenge
by the plaintiff convincing.
The plaintiff’s challenge to the search terms used by the defendant to conduct its search is
also unpersuasive because the Court finds those search terms “reasonably calculated to lead to
responsive documents.” Bigwood, 132 F. Supp. 3d at 140. Comparing the search terms used to
conduct the search to the scope of the plaintiff’s FOIA request as limited by the parties’
agreement, see Third Cornell Decl. at ¶ 2(d)–(e) (limiting the search to the tentative staff
assignments); see also Praecipe (noting that the “[d]efendant has committed in a sworn
declaration to provide all of the substantive relief sought in [the p]laintiff’s proposed order”), “it
certainly appears more than likely that the terms utilized would identify responsive documents,”
Bigwood, 132 F. Supp. 3d at 141, regarding the operational review and tentative staff
assignments.
Nonetheless, the plaintiff argues that the defendant’s search terms “were too limited, not
tailored to the specific requests, and unlikely to result in the production of all responsive
18
documents,” Pl.’s Reply at 6, because some of the search terms “were [ ] improperly limited in
scope and time,” Pl.’s Mem. at 16 (referring to the search terms provided in the Uhl declaration),
and because “[o]ther terms were improperly compounded” or do not relate to the topics
corresponding to this aspect of his FOIA request, Pl.’s Reply at 6 (referring to the search terms
used in the November 8, 2017 search). Relying on Coffey v. Bureau of Land Management, 249
F. Supp. 3d 488 (D.D.C. 2017), the plaintiff contends that using the selected individuals’ e-mail
addresses, see id. at 6, and a Boolean search protocol, see id. at 7 (citing Coffey for this assertion
as well), 9 “might be particularly effective,” see id. at 6, and would “satisfy the [defendant’s]
burden of showing [that] a reasonable search was conducted,” id. at 7. However, the plaintiff’s
reliance on Coffey is misplaced. In Coffey, the plaintiff’s FOIA request sought all of two
custodians’ communications with certain individuals without any limitation on the scope of that
request. See 249 F. Supp. 3d at 498. But, the agency conducted its search using search terms
limited to one particular topic without using names or e-mail addresses. See id. at 498–99. The
Court reasoned that using the individual names and e-mail addresses “would presumably uncover
all electronic correspondence responsive to [the plaintiff’s] request.” Id. at 499. Here, however,
the plaintiff has not requested all electronic correspondence, but, as noted above, has limited this
aspect of his FOIA request to records related to the tentative staff assignments. Thus, using
e-mail addresses would be overly encompassing, particularly since the defendant conducted its
search using the names of the individuals likely to contain responsive records. See
Garcia-Malene Decl. ¶ 6(2).
Moreover, regarding the plaintiff’s contention that the defendant should not have used
compounded search terms, the defendant attests that it did not use such limitation in its search.
9
The plaintiff notes that a “Boolean” search is a search that “indicates the presence of an ‘or’ relationship between
[terms] as opposed to an ‘and’ relationship.” Pl.’s Reply at 7 (citation and internal quotation marks omitted).
19
See id. (noting that its search was not limited by the use of “and”). In any event, the question for
the Court to resolve is not whether a Boolean search protocol would have been more appropriate,
as the plaintiff suggests. See Pl.’s Reply at 7. Rather, the Court must determine whether the
search terms used were “reasonably calculated to lead to responsive documents.” Bigwood, 132
F. Supp. 3d at 140. And, the Court finds that the search terms selected pass muster under that
standard. Accordingly, the Court must grant the defendant’s motion for summary judgment as to
the adequacy of its search for these records, and deny the corresponding aspect in the plaintiff’s
cross-motion for summary judgment.
3. The Fall 2007 Chief Operating Officer PowerPoint Presentation
The plaintiff next argues that the defendant did not conduct an adequate “search for the
Fall 2007 [Chief Operating Officer] Power[]Point presentation.” Pl.’s Mem. at 18. In particular,
the plaintiff states that “[t]he requested document is a Power[]Point presentation given to the
staff chaplains in a meeting after the Friday, Sept[ember] 21, 2007 meeting of the NIH Clinical
Center’s Advisory Board for Clinical Research.” Id. According to the plaintiff, “[t]he
presentation quickly listed results and decisions on the Operational Review Report findings and
recommendations,” id., and he recalls the presentation “includ[ing] a series of Power[]Point
slides with general information on the [o]perational [r]eview, including the full list of the
participating members of the Operational Review team,” id. at 19 (citation and internal quotation
marks omitted). The defendant in response insists that “[t]he record in this case demonstrates
that [it] has performed a more than reasonable search for the [Power Point] presentation at
issue.” Def.’s Reply at 10–11; see also id. at 10 (asserting that it has performed “four searches
for this document”) (emphasis removed). As a result of these searches, the defendant produced
to the plaintiff a two-page Power Point presentation in full and a separate twenty-one page Power
20
Point presentation with certain redactions. See Garcia-Malene Decl. ¶ 6(3); see also
Garcia-Malene Supp. Decl. ¶ 5.
As support for its position that it conducted an adequate search for the requested
presentation, the defendant again relies on the multiple declarations it submitted. First, Uhl
represents that Gormley
search[ed] her files for the [Power Point] presentation on the [o]perational [r]eview,
presented to the [ ] chaplains approximately a week or so after the September
[Advisory Board Clinical Research] meeting, in which the findings of the
Operational Review Team’s report was presented, and the Clinical Center
Director’s decisions on implementing certain recommendations of the
[Operational] Review Team.
Uhl Decl. ¶ 4(3) (referring to a search conducted in 2016). Uhl further notes that this search
included “[a] search of [ ] Gomley’s electronic files in an archived Spiritual Ministry folder.” Id.
Garcia-Malene adds that “Gormley was the person to most likely have maintained or have access
to the [Power Point] presentation from the Fall 2007 meeting,” and she “conduct[ed] a search of
her computer, e[-]mail, and paper files for responsive records” in “March 2014, July 2016, and
December 2016.” Garcia-Malene Decl. ¶ 6(3). In addition, “[o]n November 8, 2017, another
search for responsive records was conducted,” which involved searching the
“[c]omputer/network, outlook, and paper files . . . using individual keywords ‘Dominic Ashkar’,
‘Diana Gomez de Molina’, ‘Dana Kelley’, ‘Owen Fitzgerald’, ‘Spiritual Ministry’, ‘Operational
Review’, ‘Fall 2007’, “Spiritual Ministry Operational Review’, ‘Maureen Gormley’, ‘Staff
assigned department’, ‘Walter Jones’, and ‘Staff meetings.’” Id. Although this search disclosed
“[n]o new records[,] . . . an item by item search of [ ] Pollack’s network files” located the
twenty-one page Power Point presentation that was produced to the plaintiff. Id.
The Court finds that the defendant’s search for the Chief Operating Officer’s Power Point
presentation was not sufficiently adequate for several reasons. At the outset, the Court notes
21
that, although the plaintiff seeks to challenge the adequacy of the defendant’s search regarding
this component of his FOIA request, he does not assert any basis supporting that challenge. See
Pl.’s Mem. at 18–19; see also Pl.’s Reply at 8–10. He merely claims that, based on his review of
the two presentations produced, neither of them is the presentation he wants to obtain. See Pl.’s
Mem. at 18–19; see also Pl.’s Reply at 9–10. But, as this Court has previously noted, “the
adequacy of a search is ‘determined not by the fruits of the search, but by the appropriateness of
[its] methods.’” Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) (alteration in original)
(quoting Iturralde, 315 F.3d at 315); see also Reporters Comm. for Freedom of Press v. FBI, 877
F.3d 399, 408 (D.C. Cir. 2017) (“That a few responsive documents may have slipped through the
cracks does not, without more, call into question the search’s overall adequacy.”); Mobley v.
CIA, 806 F.3d 568, 583 (D.C. Cir. 2015) (“[A] search, under FOIA, is not unreasonable simply
because it fails to produce all relevant material.” (citation and internal quotation marks omitted)).
Consequently, to the extent that the plaintiff argues that the defendant’s searches were
inadequate because they did not produce the Power Point presentation sought, that argument has
no merit.
Nonetheless, the Court finds that the defendant’s declarations, taken together, do not
provide the Court the minimum information needed for the Court to conclude that the defendant
conducted a search “reasonably calculated to uncover all relevant documents.”
Valencia-Lucena, 180 F.3d at 325 (citation and internal quotation marks omitted). Although the
defendant’s declarations sufficiently identify the search terms used and the locations searched,
see, e.g., Garcia-Malene Decl. ¶ 6(3), they do not provide the requisite “averment that all
locations likely to contain responsive records were searched,” Powell v. IRS, 280 F. Supp. 3d
155, 162 (D.D.C. 2017); see also Oglesby, 920 F.2d at 68. The defendant’s declarants simply
22
state that “Gormley was the person to most likely [to] have maintained or have access to the
[requested Power Point] presentation.” Garcia-Malene Decl. ¶ 6(3) (emphasis added). However,
as the Circuit has explained, merely searching the location “‘most likely’ [to contain responsive
records] is not the relevant metric.” DiBacco, 795 F.3d at 190; see also Mobley 806 F.3d at 582
(noting that “[h]ad the [agency] only searched the records ‘most likely’ to contain responsive
records, its search would be inadequate”). Therefore, for summary judgment to be granted in its
favor, the defendant was required to submit reasonable detailed declarations “averring that all
files likely to contain responsive materials (if such records exist) were searched,” Oglesby, 920
F.2d at 68, which the defendant has not done. Accordingly, the Court cannot enter summary
judgment in favor of the defendant, but the Court “will permit [the defendant] to supplement the
record to cure [this] deficienc[y] and to renew its motion for summary judgment as to the
adequacy of its search” regarding this component of its response to the plaintiff’s FOIA request.
Elec. Privacy Info. Ctr. v. FBI, 235 F. Supp. 3d 207, 213 (D.D.C. 2017); see also Judicial Watch,
Inc. v. U.S. Dep’t of Justice, 185 F. Supp. 2d 54, 65 (D.D.C. 2002) (“[W]hen an agency’s
affidavits or declarations are deficient regarding the adequacy of its search, . . . the courts
generally will request that the agency supplement its supporting declarations.”).
4. John Pollock’s Response to the July 27, 2009 E-mail
Finally, with respect to the adequacy of the defendant’s search efforts, the plaintiff argues
that the defendant “did not perform a reasonable search,” Pl.’s Mem. at 20, “for [all] e[-]mails
relating to [ ] Pollack[’s] response to a July 27, 2009, e[-]mail concerning ‘the actions taken and
planned dates for completion’ of the Operational Review Action Plan, including a description of
actions taken[ and] dates completed,” id. at 19. From the plaintiff’s perspective, the defendant’s
searches for this document “were not reasonably calculated to uncover requested records because
23
the individuals who searched e[-]mail and computer files used compound search terms,” Pl.’s
Reply at 11, or search terms “not likely to lead to the discovery of requested records,” id. at 12
(addressing the defendant’s use of a “single multi-word search term” for its December 28, 2016
search).
The defendant again relies on the multiple declarations it has submitted to demonstrate
that its searches for these requested records were adequate. Uhl states that the SMD had
Gormley, “the former Chief Operating Officer [ ] and her staff on board during the Fall of 2007,
who are still with the [Clinical Care Center], to again search their files for records related to
Pollack’s response to [the] July 27, 2009 e[-]mail.” Uhl Decl. ¶ 4(2). These individuals
searched their “electronic, e[-]mail, and paper files . . . using the following terms: SMD, Spiritual
Ministry, Pollack, Gormley, Operational Review response, operational review action plan, and
2009.” Id. 10 And Garcia-Malene represents that, in December 2016, “Maria Joyce and Rachel
Schacherer searched e[-]mail and computer files using [the previously identified] individual
keywords,” except for the term “operational review action plan.” Garcia-Malene Decl. ¶ 6(4).
They also searched the “electronic Office of the Director [ ] Share Drive folder tilted
‘Operational Review’ . . . for any files named ‘Operational Review Response,’ ‘Operational
Review Action Plan,’ ‘SMD,’ [and] ‘Spiritual Ministry.’” Id. Although no new records were
located, see id., “[o]n December 28, 2016, [ ] Pollack conducted a search of his e[-]mails for
[responsive] records . . . us[ing] ‘operational review action plan’” as the only search term, id. 11
Similar to the defendant’s descriptions of its search efforts for the Power Point
10
According to the defendant, “[t]his search, originally conducted and completed in July 2016, produced [six] pages
of responsive documents . . . [, and p]ortions of th[ose] records were redacted pursuant to FOIA Exemption 5’s
deliberative process privilege.” Uhl Decl. ¶ 4(2).
11
“A [six]-page document was located as a result of this search and provided to [the] plaintiff on January 31, 2017.”
Garcia-Malene Decl. ¶ 6(4).
24
presentation, the defendant’s descriptions regarding its search efforts for Pollack’s response to
the July 27, 2009 e-mail “do[ ] not contain sufficient information for the [C]ourt to assess
whether the [defendant] conducted a search reasonably calculated to uncover all responsive
records.” Elec. Privacy Info. Ctr., 235 F. Supp. 3d at 213. 12 The deficiency results primarily
from the defendant’s declarations’ failure to “aver[] that all locations likely to contain responsive
records were searched,” Powell, 280 F. Supp. 3d at 162, let alone any explanation of why the
individuals selected or the databases searched were likely to lead to uncovering all responsive
documents, see Valencia-Lucena, 180 F.3d at 325. Moreover, although the defendant’s
declarations identify the search terms and databases searched, see, e.g., Garcia-Malene Decl.
¶ 6(4), they do not offer any explanation as to why the same search terms were not utilized for
each of the defendant’s searches concerning Pollack’s response, see, e.g., id. (noting that Pollack
only used one search term when conducting his search and that Joyce and Schacherer did not use
the same individual keywords for all of their electronic searches). And the fact that Pollack was
able to locate responsive documents using one individual keyword term for his electronic search,
see id., causes the Court to “second guess,” Liberation Newspaper, 80 F. Supp. 3d at 146,
whether the use of the other search terms used by Joyce and Schacherer would lead to Pollack
locating additional responsive documents. See Bigwood, 132 F. Supp.3d at 141 (acknowledging
12
The parties dispute the proper scope of the request concerning the fourth category of documents. See Def.’s
Reply at 11 n.1 (asserting that the plaintiff’s description on page nineteen of his memorandum “for all e[-]mails
concerning [the] 2009 Pollack response” was not an accurate description of this aspect of the plaintiff’s FOIA
request as reflected in the Court’s January 2, 2017 Minute Order); see also Pl.’s Reply at 10–11 (addressing the
defendant’s contention regarding the scope of this aspect of his FOIA request). The defendant’s position is correct,
because the parties agreed to modify and limit the defendant’s search to “Pollack’s response,” see Praecipe
(referring to the December 14, 2016 Declaration of Susan Cornell); see also Third Cornell Decl. ¶ 9(2), and not “all
e[-]mails concerning 2009 Pollack’s response” as the plaintiff suggests, Pl.’s Mem. at 19. This modified agreement
was reflected in the Court’s Order dismissing as moot the plaintiff’s motion for a complete Vaughn Index, see
January 2, 2017 Minute Order, and the plaintiff’s attempt to seek documents outside of this modification through his
cross-motion for summary judgment would be inappropriate, see Bonner v. U.S. Dep’t of State, 928 F.2d 1148,
1152 (D.C. Cir. 1991) (“To require an agency to adjust or modify its FOIA responses based on post-response
occurrences could create an endless cycle of judicially mandated processing.”).
25
that the use of “the additional terms may have increased the possibility that additional responsive
materials would be identified”); see also Tushnet, 246 F. Supp. 3d 435 (concluding that the
agency’s use of different search terms and parameters by office without explanation left the court
“wondering” whether the agency’s search was reasonably calculated).
In short, the defendant’s declarations are not reasonably detailed to give the Court
confidence that the defendant’s searches adequately complied with its obligations under the
FOIA. Accordingly, the Court must deny this component of the defendant’s summary judgment
motion; however, the Court will again allow the defendant to renew its summary judgment
motion by supplementing the record with a reasonably detailed declaration or declarations that
cure the deficiencies identified in its current declarations regarding the adequacy of its searches
for this aspect of the plaintiff’s FOIA request. 13
B. The Defendant’s Withholdings Pursuant to FOIA Exemption 5
The remaining issues concern the parties’ dispute regarding the defendant’s withholdings
of information pursuant to FOIA Exemption’s 5 deliberative process privilege. The plaintiff first
challenges the sufficiency of the defendant’s descriptions of its withholdings provided in its
Third Vaughn Index. See Pl.’s Mem. at 21 (asserting that the defendant’s Third Vaughn Index is
“plainly insufficient”); see also Pl.’s Reply at 22–23. The plaintiff then challenges the
applicability of the deliberative process privilege as a proper basis for justifying the defendant’s
13
As the Court noted, the plaintiff also contends that the defendant’s use of “compound[ed] search terms” was “not
reasonably calculated to uncover [the] requested records.” Pl.’s Reply at 11; see also id. at 12 (suggesting that the
use of a Boolean search would be more appropriate). The defendant claims—albeit not in any of its declarations—
that its December 2016 searches “did not improperly use compound search terms which could have improperly
limited the documents retrieved,” Def.’s Reply at 11. However, because the Court has concluded that the
defendant’s declarations do not contain the minimum contextual detail needed for it to determine whether the
defendant’s searches were adequate, it need not decide this issue at this time. Nonetheless, as the Court will have to
determine whether the defendant’s search terms were reasonable in its assessment of whether the defendant’s
searches were adequate upon the renewal of the defendant’s summary judgment motion, the defendant should be
mindful to address this issue in its supplemental declaration or declarations.
26
withholdings. See Pl.’s Mem. at 25–37; see also Pl.’s Reply at 12–30. The Court will address
these challenges in turn.
1. The Plaintiff’s Challenge to the Defendant’s Third Vaughn Index
As a threshold matter, the plaintiff argues that the defendant’s Third Vaughn Index is
inadequate for the defendant to satisfy its obligations under the FOIA because the index “does
not contain the detailed analysis necessary for the Court and the [p]laintiff to test the
[defendant’s] claimed Exemption[],” and because it “improperly relies on conclusory, boilerplate
reasons to justify its withholdings based on asserted claims of [the] ‘deliberative process
privilege.’” Pl.’s Mem. at 21. Although the defendant disputes the plaintiff’s claim that the
Third “Vaughn Index is confusing and insufficient,” Def.’s Reply at 12, it nonetheless contends
that this challenge “is moot” because the “Garcia-Malene Declaration addresses in detail each
document [and the underlying basis for its withholding] that [the] plaintiff challenges,” id. at 13
(maintaining that the Third Vaughn Index must be read in connection with the supporting
declarations, particularly the Garcia-Malene declaration).
In responding to a FOIA request, “the agency has the difficult obligation [of] justify[ing]
its actions without compromising its original withholdings by disclosing too much information[,
and t]he Vaughn index provides a way for the defending agency to do just that.” Judicial Watch,
Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006); see also id. (“By allowing the agency to
provide descriptions of withheld documents, the index gives the court and the challenging party a
measure of access without exposing the withheld information.”). Thus, as the Circuit has
explained, “it is the function, not the form, of the index that is important.” Keys v. U.S. Dep’t of
Justice, 830 F.2d 337, 349 (D.C. Cir. 1987); see also Judicial Watch, Inc., 449 F.3d at 146
(discussing the purpose of the Vaughn index and noting that “the touchstone of [the] analysis” is
27
“on the functions of the Vaughn index, not the length of the document descriptions”).
Moreover, an “agency may even submit other measures in combination with or in lieu of
the index itself,” Judicial Watch, Inc., 449 F.3d at 146, “so long as they give the reviewing court
a reasonable basis to evaluate the claim of privilege,” Gallant v. NLRB, 26 F.3d 168, 172–73
(D.C. Cir. 1994) (citation and internal quotation marks omitted). Indeed, “[a]ny measure will
adequately aid a court if it ‘provide[s] a relatively detailed justification, specifically identif[ies]
the reasons why a particular exemption is relevant[,] and correlate[es] those claims with the
particular part of a withheld document to which they apply.” Judicial Watch, Inc., 449 F.3d at
146 (second, third, and fourth alterations in original) (quoting Mead Data Cent., Inc. v. U.S.
Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)); see also Citizens for Responsibility &
Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014) (“Agency
affidavits sometimes take the form of a ‘Vaughn’ index.”).
Here, after filing its Third Vaughn Index, and after the plaintiff challenged the
sufficiency of that index, the defendant submitted the Garcia-Malene declaration, which
“addresses in detail each document that [the] plaintiff challenges,” Def.’s Reply at 13, and
explains the basis for the defendant’s withholding of information in the corresponding document
pursuant to FOIA Exemption 5’s deliberative process privilege, see Garcia-Malene Decl. ¶ 11.
Consequently, as the defendant correctly notes, its Third Vaughn Index “must [not] be read in
isolation.” Def.’s Reply at 12. The defendant’s Third Vaughn Index broadly “steps through the
claimed exemption[],” and although it discusses the individual documents, it does so by
“describing the kinds of information withheld and how [the particular document] relate[s] to the
exemption[].” Judicial Watch, Inc., 449 F.3d at 147. On the other hand, the Garcia-Malene
declaration addresses the contents of each document, specifically explaining why the deliberative
28
process privilege applies to those contents. See Garcia-Malene Decl. ¶ 11. As the Circuit has
explained, this combination approach is sufficient because it provides the Court with “a
reasonable basis to evaluate the claim of [the deliberative process] privilege.” Gallant, 26 F.3d at
172–73; see also DiBacco, 795 F.3d at 186 n.2 (“Although agencies frequently rely on Vaughn
indices, [t]he materials provided by the agency may take any form so long as they give the
reviewing court a reasonable basis to evaluate the claim of privilege.” (alteration in original)
(citation and internal quotation marks omitted)); Judicial Watch, Inc. 449 F.3d at 148 (“[The]
focus is on the functions served by the Vaughn index: to organize the withheld documents in a
way that facilitates litigant challenges and court review of the agency’s withholdings. The
[agency’s] decision to tie each document to one or more claimed exemptions in its index and
then summarize the commonalities of the documents in a supporting affidavit is a legitimate way
of serving those functions.” (internal citation omitted)). Accordingly, the plaintiff’s stand-alone
challenge to the sufficiency of the descriptions provided in the Third Vaughn Index is moot, as
the Court must assess the defendant’s deliberative process privilege claim based on the entire
record, including the Garcia-Malene declaration.
2. The Defendant’s Invocation of FOIA Exemption 5
Notwithstanding the legitimate approach taken by the defendant, the plaintiff nonetheless
argues that the defendant’s invocation of FOIA Exemption 5 as the basis for its withholdings is
improper. See Pl.’s Mem. at 25–37; see also Pl.’s Reply at 12–30. FOIA Exemption 5 protects
from disclosure “inter-agency or intra-agency memorand[a] or letters that would not be available
by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5)
(2012). “Exemption 5 incorporates the privileges that the [g]overnment may claim when
litigating against a private party, including the governmental attorney-client and attorney work
29
product privileges, the presidential communications privilege, the state secrets privilege, and the
deliberative process privilege.” Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C.
Cir. 2015).
Here, the defendant invokes the deliberative process privilege, which “rests on the
obvious realization that officials will not communicate candidly among themselves if each
remark is a potential item of discovery and front page news.” U.S. Dep’t of Interior v. Klamath
Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001). “The privilege serves to preserve the
‘open and frank discussion’ necessary for effective agency decisionmaking[, and it] protects
‘documents reflecting advisory opinions, recommendations and deliberations comprising part of
a process by which governmental decisions and policies are formulated.’” Abtew, 808 F.3d at
898 (first quoting Klamath Water Users Protective Ass’n, 532 U.S. at 9; then quoting NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)).
“To be exempt from disclosure under the deliberative process privilege, the agency must
show that the information is both (1) ‘predecisional’ and (2) ‘deliberative.’” Cleveland v. U.S.
Dep’t of State, 128 F. Supp. 3d 284, 298 (D.D.C. 2015) (Walton, J.) (quoting Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 39 (D.C. Cir. 2002)). “A document is predecisional if it
was ‘prepared in order to assist an agency decisionmaker in arriving at his decision,’ rather than
to support a decision already made.” Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d
1429, 1434 (D.C. Cir. 1992) (quoting Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421
U.S. 168, 184 (1975)); see also Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585 (D.C.
Cir. 1987) (“A document is ‘predecisional’ if it precedes, in temporal sequence, the ‘decision’ to
which it relates.”). “And a document is deliberative if it is ‘a part of the agency give-and-take—
of the deliberative process—by which the decision itself is made.” Abtew, 808 F.3d at 899
30
(quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)); see also Pub. Emps. for
Envtl. Responsibility v. EPA, 213 F. Supp. 3d 1, 11 (D.D.C. 2016) (“The ‘key question’ in
determining whether the material is deliberative in nature ‘is whether disclosure of the
information would discourage candid discussion within the agency.’” (quoting Access Reports v.
U.S. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991))).
“The agency must establish ‘what deliberative process is involved, and the role played by
the documents in issue in the course of that process.’” Senate of P.R., 823 F.2d at 585–86
(quoting Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980)).
“The need to describe each withheld document when Exemption 5 is at issue is particularly acute
because ‘the deliberative process privilege is so dependent upon the individual document and the
role it plays in the administrative process.’” Pub. Emps. for Envtl. Responsibility, 213 F. Supp.
3d at 11 (quoting Animal Legal Def. Fund, Inc. v. U.S. Dep’t of Air Force, 44 F. Supp. 2d 295,
299 (D.D.C. 1999)). Accordingly, “to sustain its burden of showing that records were properly
withheld under Exemption 5, an agency must provide in its declaration . . . precisely tailored
explanations for each withheld record at issue.” Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d
101, 188 (D.D.C. 2013). “[T]he agency must [also] describe ‘the nature of the decisionmaking
authority vested in the office or person issuing the disputed document(s), and the positions in the
chain of command of the parties to the documents.’” Elec. Frontier Found. v. U.S. Dep’t of
Justice, 826 F. Supp. 2d 157, 168 (D.D.C. 2011) (Walton, J.) (quoting Arthur Andersen & Co. v.
IRS, 679 F.2d 254, 258 (D.C. Cir. 1982)). “If the agency does not provide ‘the minimal
information necessary to make a determination concerning applicability of the deliberative
process privilege[,]’ then the court should deny the agency summary judgment.” Hunton &
Williams LLP v. EPA, 248 F. Supp. 3d 220, 241 (D.D.C. 2017) (quoting Elec. Frontier Found.,
31
826 F. Supp. 2d at 173).
In general, the plaintiff contends that
certain of the [Operational Review Team’s] recommendations were adopted and
implemented into [the SMD’s] practice (if not formal “policy”) and amounted to a
change in the [SMD’s] position concerning the chaplains, all documents reflecting
those adopted or implemented recommendations, and the [Operational Review
Team] or Marit Focus Group recommendations that preceded those actions, have
lost any deliberative privilege they may have once held and must be released in full.
Pl.’s Reply at 22. The plaintiff also asserts that the defendant’s explanations asserted in the
Garcia-Malene declaration “do not justify any Exemption 5 withholdings.” Id. at 23; see also id.
at 23–30 (tying his general challenges to the specific documents containing withheld
information). Because the plaintiff’s general challenges coincide with his specific challenges to
the documents containing withheld information, the Court will first evaluate the defendant’s
general claims and then apply that analysis to his specific disputes regarding each document. 14
14
The plaintiff argues that the defendant’s explanations for its withholdings provided in the Garcia-Malene
declaration, which was attached to the defendant’s reply submission, “are untimely and should not be considered,”
Pl.’s Reply at 23, and as support for this proposition the plaintiff cites Citizens for Responsibility and Ethics in
Washington v. United States Department of Justice, 854 F.3d 675 (D.C. Cir. 2017). In Citizens for Responsibility
and Ethics in Washington, the Circuit reiterated that “the [g]overnment generally ‘must assert all exemptions at the
same time, in the original district court proceedings.’” 854 F.3d at 679 (quoting Maydak v. U.S. Dep’t of Justice,
218 F.3d 760, 764 (D.C. Cir. 2000)). And because the government in Citizen for Responsibility and Ethics in
Washington had not asserted FOIA Exemption 5 as a basis of its withholding until “on remand following an appeal,”
id. at 680, the Circuit concluded that “the [g]overnment’s invocation of Exemption 5 was untimely and [that] the
[g]overnment ha[d] not provided a sufficient basis for declining to apply the Maydak timeliness rule,” id. at 681.
Here, however, the defendant asserted its new explanations for its withholdings pursuant to FOIA Exemption 5 prior
to the Court “reach[ing] the merits of the parties’ initial summary judgment motions, and there have not yet been
any appellate proceedings.” Elec. Privacy Info. Ctr. v. Dep’t of Justice, 296 F. Supp. 3d 109, 123 (D.D.C. 2017).
Moreover, “as far as this Court can tell, [the plaintiff] has not been prejudiced in any meaningful sense by the
delay.” Id. Therefore, the factual circumstances presented in Citizen for Responsibility and Ethics in Washington
are inapposite to the factual circumstances here, and therefore, the plaintiff’s reliance on the Circuit’s holding in that
case is of no avail. Accordingly, the Court finds the defendant’s new explanations raised in the Garcia-Malene
declaration timely.
32
a. The Plaintiff’s General Challenges to the Defendant’s Reliance on
FOIA Exemption 5’s Deliberative Process Privilege
1. The SMD’s Alleged Waiver of the Deliberative Process
Privilege
The plaintiff contends that HHS “has publicly released many other [ ] review reports,
which undercuts [the defendant’s] argument that such documents are protected by the
deliberative process privilege.” Pl.’s Mem. at 31 (identifying three publically released review
reports). Specifically, the plaintiff identifies “a review report about the NIH Clinical Center”
that HHS released in April 2016 without “protect[ing] from disclosure th[at] review team’s
membership or final conclusions,” and that allegedly “address[ed] many of the same issues that
the 2007 Operational Review team discussed.” Id. Additionally, the plaintiff states that in July
2017, HHS “released another Clinical Center report which contained the results of Focus Groups
commissioned to implement the recommendations in the April 2016 Clinical Center report.” Id.
Thus, according to the plaintiff, the defendant “has not explained why” the Operational Review
Team’s final report and the Marit Focus Groups’ findings “are confidential, pre-decisional, or
deliberative, while similar follow-up reports have been readily released.” Id. (internal quotation
marks omitted).
The Court construes this argument as the plaintiff asserting that the defendant cannot
avail itself to the protections of the deliberative process privilege to shield the Operational
Review Team’s and the Marit Focus Groups’ final reports and their related documents from
disclosure because that privilege has been waived by HHS’s public release of purportedly similar
reports. The Court disagrees for several reasons. First, the plaintiff “carries the burden of
producing at least some evidence that the deliberative process privilege has been waived,” Elec.
Frontier Found. v. U.S. Dep’t of Justice, 890 F. Supp. 2d 35, 46 (D.D.C. 2012) (Walton, J.), and
33
the plaintiff cannot satisfy that burden by conjecturing that the April 2016 Clinical Center report
“address[ed] many of the same issues” as the Operational Review Team’s final report without
identifying specific information to support that position, see Pl.’s Mem. at 31; see also Elec.
Frontier Found., 890 F. Supp. 2d at 47 (holding that the plaintiff offered only “speculation” that
the “documents or information withheld as privileged . . . were voluntarily disclosed to
unnecessary third parties,” (internal quotation marks omitted)). Further, this “Circuit has
recognized that ‘voluntary disclosure of privileged material . . . to unnecessary third parties . . .
waives the [deliberative process] privilege . . . for the document or information specifically
released,’ although such disclosure does not waive the privilege ‘for related materials.’” Elec.
Frontier Found., 890 F. Supp. 2d at 46 (omissions in original) (quoting In re Sealed Case, 121
F.3d 729, 741 (D.C. Cir. 1997)). Thus, to the extent that the deliberative process privilege had
once applied to the April 2016 Clinical Center Report and the July 2017 Focus Group findings, it
has waived that privilege, but only with respect to those documents and their underlying
information. And, the plaintiff has not demonstrated that the underlying information disclosed in
those reports is the same information found in the 2007 Operational Review Team’s or the Marit
Focus Groups’ final reports. Consequently, as the defendant correctly notes, the mere fact that
HHS elected not to protect the three identified reports from disclosure pursuant to the
deliberative process has no bearing on the defendant’s assertion of the applicability of the
deliberative process privilege as to the documents in dispute in this case. See Garcia-Malene
Decl. ¶ 11(3) (noting that the publicly released reports “demonstrate[] the agency’s commitment
to asserting Exemption 5 only where appropriate” and explaining that those reports were publicly
released because they were either intended to be publicized or did not contain any policy
recommendations); see also Nat’l Sec. Archive v. CIA, 752 F.3d 460, 464 (D.C. Cir. 2014)
34
(“[A]n agency does not forfeit the benefit of a FOIA exemption simply because of its prior
decision to voluntarily release other similar information. Indeed, penalizing agencies in that way
would discourage them from voluntarily releasing information, which would thwart the broader
objective of transparent and open government.” (internal citation omitted)). Accordingly, the
Court finds the plaintiff’s public disclosure waiver argument unconvincing. 15
2. The SMD’s Purported Adoption of the Operational Review
Team’s Final Report and Recommendations
The plaintiff also contends that “some of the [Operational Review Team’s]
recommendations were in fact adopted and implemented.” Pl.’s Reply at 16; see also id. at 22
(arguing the same regarding the Marit Focus Group recommendations); Pl.’s Mem. at 30 (“The
[o]perational [r]eview reports, opinions, and recommendations . . . all resulted in a final agency
action.”). In particular, the plaintiff argues that the record, including the defendant’s “response
to [his] statement of material facts establish[] that [the Operational Review Team’s]
recommendations were implemented by NIH.” Pl.’s Reply at 20. Therefore, according to the
plaintiff, the information that the defendant seeks to withhold has “los[t] [its] pre-decisional and
deliberative privilege status,” id. at 18, “and as a result[,] cannot be shielded under the
deliberative process privilege,” id. at 19. In response, the defendant represents that the
Operational Review Team’s report, opinions, or recommendations have not been adopted. See
15
The plaintiff also argues that “[o]perational [r]eviews of the NIH Clinical Center are routine and mandated by the
[Clinical] Center’s Board of Governors’ charter,” Pl.’s Mem. at 30, and because operational reviews are “an integral
aspect of the operations and policy positions of [HHS],” the 2007 “operational review is not considered a part of a
deliberative process,” id. at 31 (internal quotation marks omitted); see also id. at 30 (arguing that “[t]here is great
public interest in knowing what a specially-chartered private-public advisory board for the ‘[g]overnment is up to.’”
(quoting Shapiro v. U.S. Dep’t of Justice, 969 F. Supp. 2d 18, 25 (D.D.C. 2013))). As the defendant notes, see
Def.’s Reply at 15, the plaintiff does not cite any legal authority as support for this proposition. In any event, the
Supreme Court has made clear that such routine reviews do not foreclose an agency’s ability to invoke the
deliberative process privilege to protect pre-decisions documents from disclosure. See Sears, Roebuck & Co., 421
U.S. at 151 n.18 (“Agencies are, and properly should be, engaged in a continuing process of examining their
policies; this process will generate memoranda containing recommendations which do not ripen into agency
decision; and the lower courts should be wary of interfering with this process.”).
35
Def.’s Reply at 14.
“[U]nder [the] FOIA, agencies must disclose their ‘working law,’ i.e., the ‘reasons which
[supplied] the basis for an agency policy actually adopted.’” Elec. Frontier Found. v. U.S. Dep’t
of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014) (third alteration in original) (quoting Sears, Roebuck &
Co., 421 U.S. at 152–53); see also Judicial Watch, Inc. v. U.S. Dep’t of Def., 847 F.3d 735, 739
(D.C. Cir. 2017) (“[While t]he deliberative process privilege reflects the commonsense notion
that agencies craft better rules when their employees can spell out in writing the pitfalls as well
as the strengths of policy options, coupled with the understanding that employees would be
chilled from such rigorous deliberation if they feared it might become public[, t]he privilege [ ]
avoids confusion from premature disclosure of ideas that are not—or not yet—final policy, and
misimpressions from ‘dissemination of documents suggesting reasons and rationales’ not
ultimately relied on.” (internal citation omitted) (quoting Coastal States Gas Corp., 617 F.2d at
866)). Thus, “a document can lose its predecisional character—and the protections of the
privilege—if an agency adopts the document as its own.” Judicial Watch, Inc., 847 F.3d at 739;
see also De Sousa v. CIA, 239 F. Supp. 3d 179, 201 (D.D.C. 2017) (“The law is well established
that ‘even if the document is predecisional at the time it is prepared, it can lose that status if it is
adopted, formally or informally, as the agency position on an issue or is used by the agency in its
dealings with the public.’” (quoting Coastal States Gas Corp., 617 F.2d at 866)).
For an agency to “adopt a deliberative document,” and thereby lose the protections of the
privilege, the agency must do more than “make vague or equivocal statements implying that a
position presented in a deliberative document has merit; instead, the agency must make an
‘express[ ]’ choice to use a deliberative document as a source of agency guidance.” Judicial
Watch, Inc., 847 F.3d at 739 (emphasis and alteration in original) (quoting Sears, Roebuck &
36
Co., 421 U.S. at 161). However, where “[t]here is no evidence the withheld documents were
expressly adopted,” Sec. Fin. Life Ins. Co. v. U.S. Dep’t of Treasury, No. 03-102 (SBC), 2005
WL 839543, at *7 (D.D.C. Apr. 12, 2005), courts must “determine whether a document
constitutes the working law of an agency,” id. at *8. “In making such a determination, a court
should consider ‘the function and significance of the document in the agency’s decisionmaking
process’; ‘the nature of the decisionmaking authority vested in the office or person issuing the
disputed document’; and whether the document was ‘from [s]upervisors to [s]ubordinates, or
[v]ice [v]ersa.’” Martin v. U.S. Equal Emp’t Opportunity Comm’n, 19 F. Supp. 3d 291, 307
(D.D.C. 2014) (alterations in original) (quoting Taxation with Representation Fund v. IRS, 646
F.2d 666, 678–81 (D.C. Cir. 1981)). Moreover, the agency “does not carry the burden of
proving that each withheld document was not adopted formally or informally.” Sec. Fin. Life
Ins. Co., 2005 WL 839543, at *7.
Here, the Court concludes that the evidence before it shows that the Operational Review
Team’s final report and the Marit Focus Groups’ final report were neither formally or informally
adopted by the defendant, and therefore the recommendations withheld by the defendant remain
protected by the deliberative process privilege. The Garcia-Malene declaration emphatically
states that HHS “has not implemented the Operational Review [Team’s] Report[, and t]o the
extent that [HHS] has taken any action on issues raised in the report, there is no evidence that
such action was taken solely because of the [r]eport or for the reasons advanced in the [r]eport.”
Garcia-Malene Decl. ¶ 11(3). 16 Garcia-Malene further explains that
16
The plaintiff postulates that the defendant’s “own statements confirm that at least some of the [Operational
Review Team’s] opinions and recommendations were adopted by the Clinical Center,” and therefore, “that
information is releasable under [the] FOIA.” Pl.’s Reply at 15. Specifically, the plaintiff contends that the
defendant “cannot simultaneously claim no agency actions were taken as a result of the [o]perational [r]eview, and
then state that some if ‘not all’ actions may have been taken, but not ‘solely’ because of the [report].” Id. (citing
Def.’s Reply at 14). However, the plaintiff’s reading of Garcia-Malene’s statements is misplaced. Although the
(continued . . .)
37
[t]he records withheld in full or in part under the deliberative process privilege
consisted of e[-]mails to and from agency employees and consultants, [the SMD]
Operational Review Action Plans which disclose the focus of specific policy and
operational actions intended to improve the [SMD], the review of such plans, and
notes and results of focus groups and other Operation Review Team thoughts and
recommendations that would ultimately be presented to the [Advisory Board] and
considered by NIH leadership for potential implementation.
Id. ¶ 8. Thus, given these representations, the Court cannot conclude that the defendant
expressly adopted the Operational Review Team’s final report as agency policy.
Furthermore, the factors regarding whether an agency informally adopted a document as
agency policy counsel against concluding that the Operational Review Team’s Report was in fact
informally adopted by HHS. The Court so concludes primarily because the record contains no
evidence that HHS uses the Operational Review Team’s final report or the Marit Focus Groups’
final report “as the agency[’s] position on an issue or [ ] used by the agency in its dealings with
the public.” Coastal States Gas Corp., 617 F.2d at 866; see also Public Citizen, Inc. v. Office of
Mgmt. & Budget, 598 F.3d 865, 875 (D.C. Cir. 2010) (“Documents reflecting [the agency’s]
formal or informal policy on how it carries out its responsibilities fit comfortably within the
working law framework.”). There is no evidence that the final reports or the recommendations
contained therein are “routinely used by [the SMD’s] staff as guidance . . . and were retained and
referred to as precedent.” United States v. Philip Morris USA Inc., 218 F.R.D. 312, 319 (D.D.C.
2003) (quoting Coastal States Gas Corp., 617 F.2d at 869). Moreover, the final reports were
issued by individuals without decision-making authority, see Sec. Fin. Life Ins. Co., 2005 WL
839543, at *8 (“If the person or body issuing the document has final authority over the decision,
(. . . continued)
defendant’s argument was not artfully worded, the defendant merely summarized the representations made by
Garcia-Malene, that being, although the report and its underlying recommendations were considered, neither the
report nor its recommendations were adopted as agency policy. Consequently, the Court does not find convincing
the plaintiff’s argument that the defendant’s own statements confirm the agency’s adoption of the Operational
Review Team’s report.
38
it is more likely that the document represents a final action of the agency, and must therefore be
disclosed as agency working law.”), and there is no evidence that the final reports were
exchanged between superiors and their subordinates, see Elec. Frontier Found., 739 F.3d at 9
(noting that a document falls within the parameters of “working law” when it is used generally
by “a higher authority [when] instructing a subordinate on how the agency’s general policy
applies to a particular case”). Thus, based on this record, the defendant did not informally adopt
either of the final reports as agency policy.
Despite the record before the Court, the plaintiff relies on his “sworn testimony attesting
to the implementation of the [Operational Review Team’s] report.” Pl.’s Reply at 16. In his
declaration, the plaintiff notes that, as a staff chaplain in 2007, he participated in the operational
review, particularly by taking part in the interviews conducted by the outside experts. See
Heffernan Decl. ¶ 10 (discussing the topics addressed in the interviews and his communication
with the Operational Review Team regarding other issues that needed to be addressed). The
plaintiff further states that several e-mails sent after the conclusion of the operational review “led
[him to] understand that the final report recommendations of the Operational Review Team were,
in fact, being implemented by the [defendant].” Id. ¶ 11; see also Pl.’s Reply, Exhibit (“Ex.”) 4
(E-mail correspondence from Gallin to staff chaplains) (Sept. 21, 2007) (“We have received our
report of the operational review . . . and I have asked [Gormley] to oversee implementation of
recommended changes beginning immediately.”); id., Ex. 5 (E-mail correspondence from
Gormley to the plaintiff) (Sept. 24, 2007) (indicating that that e-mail was a “follow up on plans
for operational changes . . . that were recommended in the recent operational review and
endorsed . . . by the [ ] Advisory Board,” and that she wanted “to discuss with [the plaintiff]
ideas . . . for how to implement the changes in a manner that respects [the plaintiff’s] religious
39
accommodation”). Additionally, the plaintiff states that he attended several meetings concerning
the “implement[ation of] the recommendations that had been suggested by the Operational
Review Team,” including the “assignments to specific nursing units for the inpatients
hospitalized at the Clinical Center,” Heffernan Decl. ¶¶ 12–13; see also id. ¶¶ 14–17 (discussing
the concerns raised by the new assignments), and the “clarif[ication of] [ ] religious
accommodation[s],” id. ¶ 17. 17
After he was hired in early 2008, “the new chief chaplain announced that he was going to
schedule focus group meetings to explore the changes in the chaplains’ policies and operations
needed for implementing the Operation Review [Team’s] recommendations.” Id. ¶ 19; see also
id. (noting that it “was not stated explicitly” that the recommendations “called for th[e] focus
group method . . . , but [ ] was explained as a method for implementing the . . .
recommendations”). The Clinical Center then engaged an outside consulting firm to facilitate
the focus group meetings, see id., which occurred in the fall of 2008 and were led by Diana
Kunkel, who purportedly “used the Report of the Operational Review [T]eam’s findings and
recommendations as the framework for organizing the focus group meetings,” id. ¶ 20. “Kunkel
developed a report on the [f]ocus [g]roup sessions with recommendations on further
implementation of the recommendations of the Operation Review Team[’s] Report by the end of
the year.” Id. ¶ 21. The plaintiff notes that “Kunkel presented some of the general conclusions
of the [f]ocus [g]roup discussions” at a “briefing” with the staff chaplains “in late January or
February of 2009,” id., but “[a]fter . . . one or two other staff chaplain meetings . . . , the chief
chaplain discontinued having staff meetings,” id. ¶ 22.
17
As further support for his position that the SMD adopted the Operational Review Team’s final report and the
recommendations contained in that report, the plaintiff notes that the defendant does not dispute his statement of
material facts regarding these preliminary steps taken by the SMD. See Pl.’s Reply at 20–21.
40
Contrary to the plaintiff’s position, see Pl.’s Reply at 16, his sworn testimony regarding
the initial actions taken by the SMD, the identified e-mails relating to the SMD’s preliminary
steps to potentially implement changes based on the recommendations in the Operational Review
Team’s report, and the defendant’s assertions that it does not dispute certain of the plaintiff’s
statement of material facts corresponding to the plaintiff’s testimony do nothing more than show
that, at a particular time, the SMD considered making changes to its policies and practices that
would be consistent with the recommendations presented in the Operational Review Team’s final
report and the Marit Focus Groups’ final report, but never actually implemented those changes or
adopted those recommendations as final agency policy. Cf. De Sousa, 239 F. Supp. 3d at 202
(“Mere reliance on a document’s conclusions does not necessarily involve reliance on a
document’s analysis; both will ordinarily be needed before a court may properly find adoption or
incorporation by reference.” (quoting Nat’l Council of La Raza v. U.S. Dep’t of Justice, 411 F.3d
350, 358 (2d Cir. 2005))). And, even though the SMD took initial steps regarding the potential
implementation of changes based on those recommendations (i.e., distributing e-mails regarding
the upcoming implementation of changes and convening meetings to discuss the allocation of
possible new tasks), those steps do not appear to have borne any fruit. Rather, the record
suggests that those steps were nothing more than part of the SMD’s deliberative process of
determining whether changes to its policies and practices based on those recommendations were
appropriate.
Moreover, there is no evidence that the SMD actually implemented actual changes to its
policies or practices based on the Operational Review Team’s final report or its
recommendations. In fact, the plaintiff acknowledges that the SMD did nothing more to
implement the recommendations or make changes to its policies and practices after a handful of
41
meetings. See Heffernan Decl. ¶ 22 (stating that after about three “staff chaplain meetings in the
spring of 2009, the chief chaplain discontinued having staff meetings”). Consequently, the
plaintiff’s sworn testimony and his supporting evidence taken together contradict his position.
See Pl.’s Reply at 16. Instead, they bolster Garcia-Malene’s representations that the Operational
Review Team’s final report was not adopted as agency policy. See Garcia-Malene Decl. ¶ 11(3).
Accordingly, the Court finds the plaintiff’s adoption waiver argument unpersuasive.
In conclusion, the plaintiff’s general challenges to the defendant’s invocation of FOIA
Exemption 5 and its deliberative process privilege do not permit the Court to conclude that the
defendant’s use of the privilege to shield the withheld information from disclosure was improper.
Having made this determination, the Court now turns to the plaintiff’s specific challenges to the
information withheld and the defendant’s descriptions of why that information is properly
withheld pursuant to the deliberative process privilege.
b. The Plaintiff’s Challenge to the Defendant’s Withholdings of the
Pre-final Draft Press Release Regarding the SMD’s Operational
Review
The defendant withheld in full a “[p]re-final draft press release regarding [the 2007
operational] review of the [SMD] at [the] NIH.” Third Vaughn Index at 3 (addressing pages
163–64 of document labeled as A-2). The defendant claims that it properly withheld this
pre-final draft press release under FOIA Exemption 5 and its deliberative process privilege
because “agency personnel used this [document as an] attempt to define and describe the
contours of the anticipated operational review.” Garcia-Malene Decl. ¶ 11(1). In response, the
plaintiff asserts that FOIA Exemption 5 “cannot apply to [ ] draft press release[s that are] not
related to any policy change,” Pl.’s Reply at 24, and because the defendant claims that “there
were no policy changes taken as a result of the [Operational Review Team’s final report],” id. at
42
23–24, then the pre-final draft press release regarding the SMD’s operational review in 2007
cannot be protected from disclosure pursuant to the deliberative process privilege, see id. at 24.
This “Circuit has made clear that simply designating a document as a ‘draft’ does not
automatically make it privileged under the deliberative process privilege[,] . . . [and] factual
information which does not bear on the policy formulation is not subject to the deliberative
process privilege.” Wilderness Soc. v. U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 14 (D.D.C.
2004) (Walton, J.) (internal citation omitted). Thus, the “[d]efendant[] must identify the function
and significance . . . in the agency’s decision making process of all redacted and withheld
documents to qualify them as exempt under the deliberative process privilege.” Mayer, Brown,
Rowe & Maw LLP v. IRS, 537 F. Supp. 2d 128, 139 (D.D.C. 2008) (citation and internal
quotation marks omitted). Moreover, given that the defendant has “identif[ied this] document as
a draft, [it] must indicate whether the draft was ‘(1) adopted formally or informally, as the
agency position on an issue,’ or (2) ‘used by the agency in its dealings with the public.’”
Wilderness Soc., 344 F. Supp. 2d at 14 (quoting Judicial Watch, Inc. v. U.S. Postal Serv., 297 F.
Supp. 2d 252, 261 (D.D.C. 2004)).
Here, the Court concludes that the defendant’s explanations do not satisfy its burden of
demonstrating that the deliberative process privilege applies to the withheld pre-final draft press
release. Essentially, the defendant’s descriptions of the withheld information in the pre-final
draft press release are masked with discussions of draft press releases as a whole, see
Garcia-Malene Decl. ¶ 11(1) (broadly explaining why the deliberative process privilege applies
to draft press releases). With respect to the specifically withheld pre-final draft press release, the
defendant only provides that it included “descriptions of prospective reviews” and that “[n]o
final press release was ever located.” Id. Such broad and vague descriptions do not assist the
43
Court in any meaningful manner in determining whether the privilege applies. See Pub. Empls.
for Envt’l. Responsibility, 213 F. Supp. 3d at 15 (holding that the agency’s broad and vague
descriptions were not sufficient either to assist the Court in determining whether the challenged
documents were “both deliberative and pre[-]decisional” or “to carry the agency’s burden to
explain the function and significance of [the] document in the agency’s decisionmaking
process”). And, while “an agency may withhold a draft document if there is a danger of
‘chilling’ communication within the agency,” Reliant Energy Power Generation, Inc. v. FERC,
520 F. Supp. 2d 194, 204 (D.D.C. 2007), the defendant’s broad-sweeping descriptions do not
demonstrate how the draft press release’s “disclosure would ‘expose an agency’s
decision-making process in such a way as to discourage candid discussion within the agency and
thereby undermine the agency’s ability to perform its functions,’” Judicial Watch, Inc. v. U.S.
Dep’t of Treasury, 802 F. Supp. 2d 185, 198 (D.D.C. 2011) (quoting Quarles v. U.S. Dep’t of the
Navy, 893 F.2d 390, 392 (D.C. Cir. 1990)).
Moreover, although the pre-final draft press release was crafted before the operational
review and therefore would be pre-decisional, the defendant’s descriptions of this document are
too obscure for the Court to determine its deliberative aspect. See Hunton & Williams LLP, 248
F. Supp. 3d at 241 (providing that the agency’s assertion of the applicability of the deliberative
process privilege must have “reasonable specificity [as] a ‘broad and opaque description . . . does
not provide the Court with enough detail about whether [the withheld information is] deliberative
and pre[-]decisonal’” (quoting Trea Senior Citizen League v. U.S. Dep’t of State, 923 F. Supp.
2d 55, 68 (D.D.C. 2013))). There is no indication as to what deliberative process the withheld
pre-final draft press release concerned or its role in the formulation of policies or
recommendations for policy change undertaken by the 2007 operational review. See Ford Motor
44
Co. v. United States, 94 Fed. Cl. 211, 224 (2010) (holding that the deliberative process privilege
protected “draft press releases and related correspondence [that were] pre-decisional . . . and
reflect[ed] recommendations concerning policy”); see also Mayer, Brown, Rowe & Maw LLP,
537 F. Supp. 2d at 139 (ordering the draft press releases to “be produced in their entirety because
they d[id] not ‘bear on the policy formulation’” (citation omitted)). 18 And, even though the
defendant has already indicated that the SMD has not formally or informally adopted the
Operational Review Team’s Final Report, the defendant has not asserted the same position with
respect to the draft pre-final press release or indicated whether it was used by the SMD in its
dealings with the public. See Wilderness Soc., 344 F. Supp. 2d at 14. Accordingly, because the
defendant’s descriptions of the withheld pre-final draft press release do not provide the minimum
facts needed for the invocation of the deliberative process privilege, the Court must deny the
defendant’s motion for summary judgment on this claim. The Court will order the defendant to
either produce to the plaintiff the withheld pre-final draft press release within thirty days of the
issuance of this opinion or to submit an additional declaration that complies with the FOIA. See
id.
c. The Plaintiff’s Challenge to the Defendant’s Withholdings of the
Operational Review Team’s Pre-final Draft Reports
The defendant also withheld either in full or in part certain pages of the Operational
Review Team’s pre-final draft reports. According to the defendant, that withheld information
“contains pre-decisional observations and recommendations.” Third Vaughn Index at 5–6
18
The Court also notes that the plaintiff’s argument in response to the defendant’s contention that there were no
policy changes taken as a result of the Operational Review Team’s final report, and therefore, the pre-final draft
press release must be disclosed in its entirety, clearly misses the mark. See Pl.’s Reply at 23–24. The appropriate
standard for drafts to be protected by the privilege is that the drafts must bear on policy formulation, not that they
necessarily lead to policy change. See Mayer, Brown, Rowe & Maw LLP, 537 F. Supp. 2d at 139. In other words,
the drafts must have some bearing on the deliberative, give and take process of formulating policy or
recommendations for policy changes, in order to be covered by the privilege.
45
(discussing various pages of document labeled as A-12). The plaintiff in response contends that
the defendant’s explanations for its withholdings of the information in the pre-final draft reports
do not justify the withholdings under the deliberative process privilege. See Pl.’s Reply at 24
(arguing that the defendant “has not indicated whether information in the draft [Operational
Review Team] reports were (1) adopted formally or informally, as the agency position on an
issue; or (2) used by the agency in its dealings with the public” (citation and internal quotation
marks omitted)). The Court disagrees with the plaintiff.
The defendant’s descriptions—albeit not overly comprehensive—do provide the Court
with enough detail for it to determine that the deliberative process privilege protects from
disclosure the withheld Operational Review Team’s pre-final draft reports. In his declaration,
Garcia-Malene represents that the operational review undertaken is “akin to a peer review” and is
a “review process [that] includes an assessment of department procedures, performance[,] and
leadership.” Garcia-Malene Decl. ¶ 11(2). He further provides that “[t]he review team’s
assessments constitute opinions as to policies and procedures,” and then suggests that the “draft
reports [ ] include th[ese] assessment[s].” Id. Finally, Garcia-Malene adds that public disclosure
of such draft reports “would jeopardize the integrity of the review process” and “the review team
would be less likely to offer an open and honest assessment of the department and may even opt
not to participate in the review process.” Id. Thus, as indicated by Garcia-Malene’s
explanations, the Operational Review Team’s pre-final draft reports are both pre-decisional and
deliberative because they predate the preparation of the Operational Review Team’s final report
and they include recommendations and proposed changes to the SMD’s existing policies. See
Nat’l Sec. Archive, 752 F.3d at 463 (noting that the document “must have occurred before any
final agency decision on the relevant matter” and that it must have been “intended to facilitate or
46
assist development of the agency’s final position on the relevant issue[s]”). And the mere fact
that the Operational Review Team’s final report did not ultimately result in final agency action
does not eliminate the protections the deliberative process privilege affords the drafts of the
Operational Review Team’s final report. See id. (“A privilege contingent on later events—such
as whether the draft ultimately evolved into a final agency position—would be an uncertain
privilege, and as the Supreme Court has said, an uncertain privilege is ‘little better than no
privilege at all.’ In short, to require release of drafts that never result in final agency action
would discourage innovative and candid internal proposals by agency officials and thereby
contravene the purposes of the [deliberative process] privilege.” (citation omitted)). 19
Moreover, even though the defendant did not explicitly state that the pre-final draft
reports were neither formally or informally adopted as SMD policy, nor used in the SMD’s
dealings with the public, the Court finds that the defendant’s representations regarding the
Operational Review Team’s final report are sufficient to indicate that the pre-final draft reports
were also not adopted or used by the SMD when dealing with the public. See Garcia-Malene
Decl. ¶ 11(3) (“The agency has not implemented the Operational Review Report. To the extent
that the agency has taken any action on issues raised in the report, there is no evidence that such
action was taken solely because of the [final r]eport or for the reasons advanced in the [r]eport.”).
Accordingly, the Court must grant this aspect of the defendant’s motion for summary judgment
19
With respect to the drafts of the Operational Review Team’s final report, the plaintiff reiterates his arguments that
Garcia-Malene’s representations are untimely and that the defendant has waived the deliberative process privilege
by formally or informally adopting the Operational Review Team’s final report either by policy or practice. See
Pl.’s Reply at 23–24. In addition, the plaintiff raises these same arguments as a challenge to the defendant’s
withholdings of information in the Operational Review Team’s final report. See id. at 25. And the plaintiff
reasserts his adoption waiver argument for the defendant’s withholdings of the Operational Review Team’s opinions
and recommendations contained in certain draft action plans and Power Point presentations, including those
presented to the SMD’s Advisory Board. See id. at 26–27, 30. The Court’s prior conclusions regarding these
arguments remain the same and are equally applicable to these challenges, see supra Part III.B.2.a, and therefore, the
Court again rejects the plaintiff’s waiver arguments as they relate to these specific challenges.
47
and deny the corresponding component of the plaintiff’s cross-motion for summary judgment.
d. The Plaintiff’s Challenge to the Defendant’s Withholdings of
Certain E-mail Discussions
The plaintiff also disputes the defendant’s withholdings of certain discussions contained
in an e-mail chain between Gormley and Sara Byars that occurred in July and August 2007. See
Pl.’s Reply at 25; see also Vaughn Index at 7 (providing that this e-mail chain concerned
“whether to take specific action”). In particular, the plaintiff lodges two primary challenges: (1)
this withheld information has lost its pre-decisional status “if any of the specific actions
discussed in these e[-]mails were taken”; and (2) “the public has a right to know what the
government is up to.” Id. (citation and internal quotation marks omitted). The Court disagrees.
Initially, the Court notes that the plaintiff does not challenge the pre-decisional or
deliberative nature of the withheld information in these e-mails, see id., and rightfully so,
because there is no doubt that these discussions fall within the purview of the deliberative
process privilege. They preceded any final agency action and played a role in the SMD’s
deliberative process of determining whether to make changes to “its services, policies,
procedures and offerings.” Garcia-Malene Decl. ¶ 11(4); see also id. (indicating that the subject
line of the e-mail chain is “whether to take specific actions recommended by the Operational
Review team”). Moreover, as Garcia-Malene notes, disclosure of this information “would
prevent the [SMD] from operating effectively in the future” as “agency personnel or
consultants/experts [would] fear the public disclosure of their opinions, advice, analyses, and
recommendations such as those contained in these e[-]mails.” Id. Thus, contrary to the
plaintiff’s position, see Pl.’s Reply at 25 (“[HHS’s] concerns that federal employees fear
disclosure of their opinions are overblown. That is the nature of being a public servant.”), the
defendant’s concerns regarding the potential effects on deliberations by agency personnel on
48
further agency policy are not exaggerated, but consistent with the purpose of the deliberative
process privilege, see United States v. Nixon, 418 U.S. 683, 705 (1974) (“Human experience
teaches that those who expect public dissemination of their remarks may well temper candor
with a concern for appearances and for their own interests to the detriment of the decisionmaking
process.”).
In any event, the plaintiff’s challenges regarding the withheld information in the e-mail
discussions are unpersuasive. First, the plaintiff’s waiver by adoption argument for this
specifically withheld information is predicated on mere speculation that “working law” may
exist. See Pl.’s Reply at 25 (stating that “if any of the specific actions discussed in these
e[-]mails were taken by Gormley and others (as the September 2007 e[-]mails suggest they
were), then these e[-]mail ‘discussions’ about such actions have lost their pre[-]decisional status
and must be released” (emphasis added)). Such speculation that “working law” may exist in the
e-mails cannot serve as a basis to conclude that the defendant has waived the deliberative process
privilege and that its withholding of this information pursuant to that privilege were improper.
See Vento v. IRS, 714 F. Supp. 2d 137, 154 (D.D.C. 2010) (holding that because the “[p]laintiffs
rest[ed] their objection to the use of the [deliberative process] privilege to withhold documents
on mere speculation that some of the documents might include working law,” the Court could
not determine that the invocation of the privilege was improper). And, the plaintiff’s reliance on
a September 2007 e-mail between Gormley and the plaintiff as the only support for his
speculative position is misplaced, primarily because that e-mail clearly indicates that the actions
Gormley took were discussions about ideas on how to implement changes recommend by the
operational review, not actual actions that led to the adoption of agency policy. See Pl.’s Reply,
Ex. 5 (E-mail correspondence from Gormley to the plaintiff) (Sept. 24, 2007) (Gormley “writing
49
to follow up on plans for operational changes . . . that were recommended in the recent
operational review and endorsed . . . by the [ ] Advisory Board,” stating that she “would like to
discuss with [the plaintiff] ideas [she] ha[d] for how to implement the changes in a manner that
respects [the plaintiff’s] religious accommodation”). Consequently, this e-mail demonstrates that
Gormley did nothing more than engage in the give-and-take deliberative process undertaken by
the SMD to determine whether changes to its policies and practices were appropriate. Thus, the
Court finds this argument unconvincing.
Without question, the plaintiff is correct in that “the public’s right to know how its
government is conducting its business has long been an enduring and cherished value.” Judicial
Watch, Inc. v. U.S. Dep’t of Justice, 365 F.3d 1108, 1122 (D.C. Cir. 2004); see also Pl.’s Reply
at 25. However, the “FOIA represents a balance struck by Congress between the public’s right
to know and the government’s legitimate interest in keeping certain information confidential.”
Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003); see also
McKinley v. Bd. of Governors of the Fed. Reserve Sys., 849 F. Supp. 2d 47, 55–56 (D.D.C.
2012) (“Congress recognized ‘that legitimate governmental and private interests could be
harmed by release of certain types of information and provided nine specific exemptions under
which disclosure could be refused.” (quoting FBI v. Abramson, 456 U.S. 615, 621 (1982))).
And, in the context of FOIA Exemption 5 and its deliberative process privilege, the public’s right
to know is generally confined to the reasons and analysis underlying “policy actually adopted.”
Sears, Roebuck & Co., 421 U.S. at 152 (“The public is only marginally concerned with reasons
supporting a policy which an agency has rejected, or with reasons which might have supplied,
but did not supply, the basis for a policy which was actually adopted on a different ground. In
contrast, the public is vitally concerned with the reasons which did supply the basis for an
50
agency policy actually adopted.”). Thus, because the record does not indicate that the SMD
actually adopted either formally or informally the Operational Review Team’s recommendations
as policy, the Court finds the plaintiff’s public interest argument also unpersuasive.
Accordingly, the Court must grant this aspect of the defendant’s motion for summary judgment
and deny the related aspect of the plaintiff’s cross-motion for summary judgment.
e. The Plaintiff’s Challenge to the Defendant’s Withholdings of
Records Related to the Marit Focus Group, Its Recommendations,
and Final Report
Lastly, the plaintiff challenges the defendant’s withholdings of information related to the
plans for conducting the Marit Focus Group and the Marit Focus Group’s notes, survey results,
and final report containing the group’s opinions, recommendations, and findings, see Pl.’s Reply
at 27–30, which served “to assist NIH leadership reorganize the [SMD] and/or alter [the] scope
of services provided,” Third Vaughn Index at 13 (discussing the defendant’s withholdings
regarding document labeled as C-5). The plaintiff contends that this withheld information is “not
pre-decisional in nature, as the[] [withheld information] came after the implementation of the
[Operational Review Team’s] report and recommendations,” and therefore the defendant
improperly withheld this information pursuant to the deliberative process privilege. Pl.’s Reply
at 28. The Court disagrees.
Contrary to the plaintiff’s position, the Court finds that the defendant has carried its
burden of demonstrating that this specifically withheld information was in fact pre-decisional
and part of the SMD’s deliberative process. As Garcia-Malene explains, this withheld
information involves “the pre[-]decisional opinions, recommendations[,] and suggestions of the”
Marit focus groups that were part of “the deliberative process of the [SMD] as it worked to make
decisions about its services, policies, procedures[,] and offerings.” Garcia-Malene Decl.
51
¶ 11(12). Garcia-Malene further states that “[a]ll participants in the focus groups were agency
employees,” and disclosure of this information “would damage the decision-making process by
stifling and chilling such exchanges of information prior to the adoption of a final position by the
agency, or by the government.” Id.; see also id. (“Concern by an agency employee or
consultant/expert that his or her views and analyses would be publicly disseminated would result
in a more cautious, less effective performance of his or her duties.”). Consequently, although the
plaintiff is correct that the Marit Focus Group, as well as this specifically withheld information,
occurred after the Operational Review Team’s Final Report and recommendations, see, e.g., Pl.’s
Reply at 28, the record does not indicate that the SMD’s deliberative process ended with the
Operational Review Team’s Final Report and recommendations, as the SMD utilized the focus
groups to seek ways to improve its services and policies, see Garcia-Malene Decl. ¶ 11(12).
Accordingly, given the defendant’s representations regarding the deliberative process involved
pertaining to the challenged records, the role the information withheld played in that process, and
the role and the decision-making authority of the individuals involved in the creation of this
withheld information, see Hardy v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 243 F.
Supp. 3d 155, 169 (D.D.C. 2017) (setting forth the minimum information the agency’s
declarations must contain), the Court is satisfied that the defendant properly withheld this
information pursuant to FOIA Exemption 5’s deliberative process privilege, see id. at 169 (“[T]o
the extent information in the documents includes ‘recommendations’ or ‘opinions on legal or
policy matters,’ they are clearly ‘deliberative’ in nature and non-disclosure is permissible under
Exemption 5.” (quoting Vaughn, 523 F.2d at 1143–44)). 20
The plaintiff relies on Hardy as support for his position that the defendant may not invoke
20
To the extent that the plaintiff seeks to assert his waiver by adoption argument regarding this specifically withheld
information, the Court likewise rejects that argument as it did for the plaintiff’s other identical challenges.
52
the deliberative process privilege to “withhold the Marit Focus Group survey results or
underlying data (questions, answers, documents presented to focus groups)” or “[t]he final Marit
Focus Group report, which contains the survey results of those focus groups, as well as the
underlying focus group data and responses.” Pl.’s Mem. at 33–34; see also Pl.’s Reply at 28–29
(“[I]n Hardy, the [c]ourt explained that survey results, survey data, and analyses of such data are
quintessentially factual information that reveal[] little about an agency’s deliberative process. . . .
Hardy reiterates the [ ] Circuit’s long-standing conclusion that survey results are not the kind of
factual information protected from disclosure under Exemption 5.” (citation and internal
quotation marks omitted)). However, the plaintiff’s reliance on Hardy is to no avail, primarily
because the factual circumstances in that case are distinguishable from those here. In Hardy, the
court determined that the agency did not provide sufficient justifications to withhold
survey-related documents pursuant to the deliberative process privilege for various reasons. See
243 F. Supp. 3d at 172–73. First, the agency had already produced “the survey questions in their
entirety, and the results and data in part,” and did not adequately “explain how the withheld
information [was] ‘different from those released in any relevant respect.’” Id. at 172 (quoting
Army Times Publ’g Co. v. U.S. Dep’t of Air Force, 998 F.2d 1067, 1068 (D.C. Cir. 1993)). In
addition, the survey results and final survey data were “anonymized collections of information,”
and therefore, it was unlikely that disclosure would “stifle honest and frank communication
within the agency.” Id. at 173 (quoting Wilderness Soc’y, 344 F. Supp. 2d at 15). More
importantly, the agency “had no control over the content of the survey responses, and thus
[could ]not say [that] the ‘materials . . . b[ore] on the formulation or exercise of agency
policy-oriented judgment.’” Id. (omission in original) (quoting Petroleum Info. Corp., 976 F.2d
at 1435); see also id. (“FOIA does not permit ‘scientific studies [to be] cloaked in secrecy by an
53
exemption designed to protect only those internal working papers in which opinions are
expressed and policies formulated or recommend.’” (alteration in original) (quoting
Bristol-Myers Co. v. Fed. Trade Comm’n, 424 F.2d 935, 939 (D.C. Cir. 1970))).
Here, Garcia-Malene represents in his declaration that “NIH has not released a portion of
the surveys without explaining why it seeks to withhold the rest.” Garcia-Malene Decl. ¶ 11(10).
Furthermore, according to Garcia-Malene, “the Focus Group survey results were far from factual
questions. Instead, the NIH Focus Group survey results consist[ed] of recommendations and
suggestions.” Id. And, he states that “disclosure of the recommendations and suggestions . . .
found in the Focus Groups answers to survey questions withheld under the deliberative process
privilege would result in an intrusion into the deliberative process of the agency as it worked to
make decisions about its services, policies, procedures and offerings.” Id. As the defendant
correctly notes, such an intrusion would certainly have a chilling effect on the SMD personnel
freely exchanging advice, opinions, and recommendations on policy and departmental changes.
See id. (asserting that such a disclosure would deter “future free exchanges of information”
within the SMD and between SMD personnel and consultants). Thus, unlike the agency in
Hardy, based on these representations and the representations previously discussed, the
defendant has provided the Court with sufficient justification for its withholdings of this
information pursuant to the deliberative process privilege. Accordingly, the Court must grant
this aspect of the defendant’s motion for summary judgment and deny the corresponding aspect
of the plaintiff’s cross-motion for summary judgment.
C. Segregability
The FOIA requires that “[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of the portions which are exempt
54
under this subsection.” 5 U.S.C. § 552(b). “[I]t has long been the rule in this Circuit that
non-exempt portions of a document must be disclosed unless they are inextricably intertwined
with exempt portions.” Wilderness Soc’y, 344 F. Supp. 2d at 18 (quoting Mead Data Cent., Inc.,
566 F.2d at 260). “The focus of the FOIA is information, not documents, and an agency cannot
justify withholding an entire document simply by showing that it contains some exempt
material.” Mead Data Cent. Inc., 566 F.2d at 260.
A district court’s determination that agency records are exempt from disclosure under the
FOIA is subject to remand if the court does not also make specific findings on the question of
segregability. See Krikorian v. U.S. Dep’t of State, 984 F.2d 461, 467 (D.C. Cir. 1993). To
make this determination, the agency must provide a “relatively detailed description” of the
withheld material. Id. (citing Goldberg v. U.S. Dep’t of State, 818 F.2d 71, 78 (D.C. Cir. 1987)).
Agencies must review the withheld documents and determine whether, absent the exempted
material, the resulting document would still be comprehensible, or whether “the result would be
an essentially meaningless set of words and phrases.” Mead Data Cent., Inc., 566 F.2d at 261
(stating that the result being a meaningless set of words may be sufficient to claim that the
information is not segregable). A “page-by-page” review of all the documents and a declaration
that each piece of information that is withheld is not reasonably segregable is sufficient to show
that an entire document cannot be produced. Juarez v. U.S. Dep’t of Justice, 518 F.3d 54, 61
(D.C. Cir. 2008); Beltranena v. U.S. Dep’t of State, 821 F. Supp. 2d 167, 178–79 (D.D.C. 2011).
Here, the Court is not satisfied that the defendant has conducted a proper segregability
analysis regarding the information that it has withheld. The defendant has submitted to the Court
approximately six declarations, and only one of them addresses the defendant’s segregability
assessment of one particular document, see generally Garcia-Malene Supp. Decl. In that
55
declaration, Garcia-Malene addresses only the twenty-one-page Power Point presentation that
was produced to the plaintiff on December 11, 2017, see id. ¶ 5, and states that he “reviewed
th[at] document carefully . . . to ensure that all reasonably segregable information was released to
[the] plaintiff,” id. ¶ 7. Based on that review, he concluded that “all reasonably segregable
information [in that presentation] was released to [the] plaintiff.” Id. Other than this
representation, only two of the declarations discuss the defendant’s segregability assessment of
the other documents withheld either in full or in part, and do so in broad, conclusory terms
without any meaningful explanations. See Cornell Decl. ¶ 23 (“For all records at issue in this
case, all reasonably segregable, non-exempt information has been released. For records withheld
in their entirety, there was no reasonably segregable material or [the] non-exempt information
amounted to essentially meaningless words and phrases.”); see also Uhl Decl. ¶ 4(2) (“All
reasonably segregable factual information has been released. To the extent that any factual
information was withheld, it is inextricably intertwined with the deliberative information.”).
Without more, the Court finds that these representations are not sufficient to discharge the
defendant’s segregability obligations because they do not provide the Court with the minimum
information needed, particularly, whether “the [defendant] conducted a line-by-line review of the
[withheld information] to ensure that it contained no segregable, nonexempt information.”
Anguimate v. U.S. Dep’t of Homeland Sec., 918 F. Supp. 2d 13, 22 (D.D.C. 2013) (Walton, J.);
see also id. (providing that “an agency’s affidavit that . . . states that an agency official
‘personally conducted a line-by-line review of each document withheld in full and determined
that no documents contained releasable information which could be reasonably segregated from
the nonreleasable portion’ is ‘sufficient to fulfill the agency’s obligation to show with reasonable
specificity why a document [could not] be further segregated.’” (second alteration in original)
56
(quoting Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002))).
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must grant in part and deny in part
without prejudice the defendant’s motion for summary judgment and deny the plaintiff’s
cross-motion for summary judgment. Specifically, with respect to the adequacy of the
defendant’s searches, the defendant’s motion for summary judgment is granted in regards to the
defendant’s searches for the SMD’s Clinical Center Policies from 2008 through 2010 and for
records related to the 2007 operational review as limited to the tentative staff nursing
assignments and denied without prejudice in regards to the defendant’s searches for the fall 2007
Chief Operating Officer Power Point presentation and John Pollock’s Response to a July 27,
2009 e-mail. Furthermore, in regards to the defendant’s withholdings, the defendant has
submitted declarations reasonably detailed to justify each of its withholdings pursuant to the
deliberative process privilege, except for the withheld pre-final draft press release. However,
because the defendant has not provided the Court with the proper segregability analysis for it to
determine that all reasonably segregable information has been released, the defendant’s motion
for summary judgment on these aspects of its motion is denied without prejudice.
SO ORDERED this 27th day of June, 2018. 21
REGGIE B. WALTON
United States District Judge
21
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
57