American Oversight v. U.S. Department of Health and Human Services

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN OVERSIGHT, INC.,
Plaintiff,
Civ. Action No. 17-827(EGS/DAR)
v.
U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff American Oversight (“American Oversight” or
“Plaintiff”) has sued Defendants Department of Health and Human
Services (“HHS”) and Office of Management and Budget (“OMB”)
(collectively “Defendants”) under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552 arising out of Defendants’ withholding
of certain documents pursuant to FOIA Exemption 5. See
Complaint, ECF No. 1. 1 Subsequent to the filing of the Complaint,
the U.S. House of Representatives Committee on Ways and Means
(“CWM” or the “Committee”) intervened as a defendant. See Minute
Order (Sept. 26, 2017). On March 8, 2018, the Court referred the
case to a Magistrate Judge for a Report and Recommendation (“R.
& R.”) on the pending Cross-Motions for Summary Judgment, and
the case was randomly referred to Magistrate Judge Deborah A.
1 When citing electronic filings throughout this Opinion, the
Court refers to the ECF page numbers, not the page numbers of
the filed documents.
1
Robinson. See generally, Docket for Civ. Act. No. 17-287.
Thereafter, on July 24, 2018, the Court referred the Plaintiff’s
Motion for Judgment on the Pleadings to Magistrate Judge
Robinson. See generally id.Pending before the Court are Defendants’ Motion for Summary
Judgment, see Mot. for Summ. J., ECF No. 25; the Committee on
Ways and Means’ (“CWM” or “the Committee”) Motion for Summary
Judgment, see Mot. for Summ. J. of the Comm. on Ways and Means
of the U.S. H.R. (“CWM’S MSJ”), ECF No. 27; and Plaintiff’s
Cross-Motion for Summary Judgment, see Cross-Mot. for Summ. J.
(“Pl.’s XMSJ”), ECF No. 30. Also pending before this Court is
Plaintiff’s Motion for Judgment on the Pleadings, see Mot. for
J. on the Pleadings (“Pl.’s MJP”), ECF No. 45.
Magistrate Judge Robinson issued a R. & R. recommending
that this Court deny Plaintiff’s Motion for Judgment on the
Pleadings. See R. & R., ECF No. 48 at 1. Magistrate Judge
Robinson issued a second R. & R. recommending that this Court
grant in part and deny in part Defendants’ Motion for Summary
Judgment, grant CWM’s Motion for Summary Judgment, and deny
Plaintiff’s Cross-Motion for Summary Judgment, as well as
Plaintiff’s requests for in camera review and discovery. See R.
& R., ECF No. 49 at 26.
Plaintiff raises several objections to Magistrate Judge
Robinson’s R. & R.’s. See generally Plaintiff’s Objections to
2
the Magistrate Judge’s Proposed Findings and Recommendations
(“Pl.’s J. on the Pleadings Objections”), ECF No. 50;
Plaintiff’s Objections to the Magistrate Judge’s Proposed
Findings and Recommendations (“Pl.’s MSJ Objections”), ECF No.
51. In addition, Defendants also raise objections to the R. & R.
See Defs.’ Limited Objections to Magistrate Judge’s Proposed
Findings and Recommendations (“Defs.’ MSJ Objections”), ECF No.
52.
Upon careful consideration of the R. & R.’s, the objections
of both parties and opposition thereto, the applicable law, and
the entire record herein, the Court hereby ADOPTS the R. & R. as
to the Motion for Judgment on the Pleadings, see ECF No. 48;
ADOPTS IN PART AND REJECTS IN PART Magistrate Judge Robinson’s
R. & R. as to the Motion for Summary Judgment, see ECF No. 49;
GRANTS IN PART AND DENIES IN PART Defendants’ Motion for Summary
Judgment, see ECF No. 25; GRANTS IN PART, DENIES IN PART AND
HOLDS IN ABEYANCE IN PART Plaintiff’s Motion for Summary
Judgment, see ECF No. 30; and DENIES Plaintiff’s requests for in
camera review and discovery, see id. In addition, in view of the
Court’s grant of summary judgment to Defendants, the Court FINDS
AS MOOT CWM’s Motion for Summary Judgment, see ECF No. 27.
3
I. Background 2
American Oversight is an organization that seeks to promote
transparency in government by submitting FOIA requests and
publishing the information gained from such requests to educate
the public about government activities. See Compl., ECF No. 1 ¶
6. This lawsuit was initiated in response to issues arising out
of American Oversight’s FOIA request for information regarding
health care reform legislation. See generally id.HHS is a federal agency responsible for the regulation and
implementation of legislation concerning, among other things,
healthcare. See R. & R., ECF No. 49 at 2. In particular, HHS
played a significant role in the development of implementation
strategies for the health care reform bill that served as the
focus of Plaintiff’s FOIA request: the American Health Care Act
(“AHCA”). See Decl. of Kristin S. Skrzycki (“Skrzycki Decl.”),
ECF No. 25-5 ¶¶ 11–14, 16–18. HHS’s role also included reaching
out to congressional staff to both provide technical assistance
and to receive information on congressional happenings to
evaluate potential regulations and operational changes. Id. ¶¶
9, 14.
The Office of Management and Budget (“OMB”) is an executive
agency tasked with advising the President on proposed
2 The Background section closely tracks Magistrate Judge
Robinson’s R. & R.s. See ECF Nos. 48-49, Background.
4
legislation and other matters being considered in Congress. See
Decl. of Jonathan Slemrod (“Slemrod Decl.”), ECF No. 25-3 ¶ 8.
This advisory process lasts throughout congressional discussion
of the bill and culminates with a final recommendation typically
submitted to the President after the bill is passed by Congress.
Id. ¶ 9. OMB is also tasked with the preparation of Statements
of Administration Policy (“SAPs”) to be issued before a vote is
held, the drafting of which involves a process of gathering
input from all parties interested in a given piece of
legislation. Id. ¶¶ 8, 12. That list of parties often includes
members of Congress and congressional staff who are
knowledgeable on the subject matter for guidance in crafting a
more informed statement. Id. ¶ 12. Finally, OMB has a role in
coordinating expert opinions to develop executive positions and
policies, as well as in aiding Congress in drafting legislation.
Id. ¶¶ 14, 17.
In March of 2017, Plaintiff FOIA requests to HHS and OMB
seeking disclosure of the following:
(1) All communications, meeting notices,
meeting agendas, informational material,
draft legislation, talking points, or other
materials exchanged between HHS and any
members of Congress or congressional staff
relating to health care reform.
(2) All calendar entries for the Secretary,
any political or SES appointees in the
Secretary’s office, and the Acting Assistant
Secretary for Legislation, or anyone
5
maintaining calendars on behalf of these
individuals, relating to health care reform.
Compl., ECF No. 1 ¶ 11 (the request sent to OMB was
substantially the same as the request sent to HHS, quoted here).
This litigation was initiated on May 4, 2017, primarily
over a dispute regarding expedited processing for American
Oversight’s FOIA request, although Plaintiff’s complaint also
alleged that Defendants failed to conduct adequate searches, and
wrongfully withheld nonexempt records. Id. at 10-12. American
Oversight argued that it was entitled to an expedited process
because of its status as “a person primarily engaged in
disseminating information,” while the agencies argued they could
not comply with the request on such a short schedule because of
the high volume of potentially responsive documents identified
by their searches. Id. at 4; see Mot. Hearing Proceedings Tr.,
ECF No. 13 at 4. The Court set a final production due date for
September 5, 2017 for the submission of all responsive
documents, with one third of the documents to be submitted each
month on a rolling basis. See Minute Order (May 25, 2017).
The documents submitted by the agencies on July 31, 2017
(as part of the second round of production) contained several
records with redacted information, including calendar entries
and emails exchanged with Congress, which the agencies argued
were exempt from disclosure under the Exemption 5 deliberative
process privilege. See Mem. P. & A. Supp. Defs.’ Mot. Summ. J.
6
(“Defs.’ MSJ”), ECF No. 25-1 at 18. Plaintiff filed a Status
Report and Request for Hearing regarding the redacted documents,
which included primarily emails between congressional staff and
staff from OMB and HHS. See ECF No. 15 at 1–2. The Court denied
the motion for a hearing, however, after concluding that a
hearing on the redacted documents was premature. See Minute
Order (Aug. 4, 2017). Plaintiff’s claim that the emails were
improperly redacted is now at issue in the pending motion for
summary judgment.
On September 15, 2017, CWM filed a motion to intervene as a
Defendant on the ground that the original Defendants disclosed
certain redacted documents involving protected congressional
records of the Committee. See Mot. to Intervene, ECF No. 19 at
1–2. The documents in question contain communications between
staff members of the Committee and staff members in HHS and OMB,
discussing health care reform. See Decl. of Allison E. Halataei
(“Halataei Decl.”), ECF No. 27-2 ¶ 8.
The Committee alleged that HHS and OMB, in their final
round of document production, submitted documents containing
“unredacted portions of four of the Committee’s confidential
congressional records, which are not subject to FOIA and should
not have been disclosed even in part.” Mot. to Intervene, ECF
No. 19 at 7. The four documents in question are email chains,
composed of twenty-five emails in total. See Reply in Supp. of
7
Pl.’s Cross-Mot. for Summ. J. (“Pl.’s XMSJ Reply”), ECF No. 37
at 26 n.13. The Committee further alleged that the
communications in question were marked with a legend from the
Committee, expressing the Committee’s clear intent to control
the correspondence and responses thereto as congressional
records. CWM’S MSJ, ECF No. 27 at 14. The legend states the
following:
This document and any related documents,
notes, draft and final legislation,
recommendations, reports, or other materials
generated by the Members or staff of the
Committee on Ways and Means are records of the
Committee, remain subject to the Committee’s
control, and are entrusted to your agency only
for use in handling this matter. Any such
documents created or compiled by an agency in
connection with any response to this Committee
document or any related Committee
communications, including but not limited to
any replies to the Committee, are also records
of the Committee and remain subject to the
Committee’s control. Accordingly, the
aforementioned documents are not ‘agency
records’ for purposes of the Freedom of
Information Act or other law.
Exhibit A, ECF No. 27-2 at 5. Of the twenty-five emails
comprising the four email chains, only six included the legend
(though it was included at least once in each chain). Pl.’s XMSJ
Reply, ECF No. 37 at 26 n.13; see Decl. & Exs., ECF No. 27-2 at
5, 49–50, 53, 55, 59. The Committee maintains that all documents
containing the legend, as well as those relating to the legend,
are not “agency records” within the meaning of FOIA and
8
therefore are not subject to disclosure. CWM’S MSJ, ECF No. 27
at 13-14.
American Oversight filed a response to the Motion to
Intervene on September 26, 2017, stating that it would not
oppose the motion at that time. See Pl.’s Resp. to Mot. for
Leave to Intervene, ECF No. 24 at 1-2. American Oversight did,
however, note that it did not intend to waive any arguments that
might be made in response to the Committee’s motion for summary
judgment, which American Oversight would address in its own
summary judgment brief. Id. at 2. In light of American
Oversight’s response, the Court granted as unopposed the
Committee’s Motion to Intervene. Minute Order (Sept. 26, 2017).
Also on September 26, 2017, Defendants HHS and OMB moved
for summary judgment, as did CWM in a separate motion. See
Defs.’ MSJ, ECF No. 25-1; CWM’S MSJ, ECF No. 27. Plaintiff
cross-moved and opposed both motions on October 17, 2017. See
Pl.’s XMSJ, ECF No. 30. CWM and Defendants replied on November
3, 2017. See Reply Mem. in Supp. of Mot. for Summ. J. of CWM of
the U.S. H.R. and in Opp’n to American Oversight’s Cross-Mot.
for Summ. J. (“CWM MSJ Reply”), ECF No. 33; Mem. of P. & A. in
Opp’n to Pl.’s Mot. for Summ. J. and in Reply in Supp. of Defs.’
Mot. for Summ. J. (“Defs.’ MSJ Reply”), ECF No. 34. Plaintiff
filed its own reply on November 10, 2017. See Pl.’s XMSJ Reply,
ECF No. 37. On March 8, 2018, pursuant to Local Rule 72.2, Judge
9
Sullivan referred the case to a Magistrate Judge for a R. & R.
on the pending Cross-Motions for Summary Judgment, and the case
was randomly referred to Magistrate Judge Deborah A. Robinson.
See generally, Docket for Civ. Act. No. 17-287.
Thereafter, on July 23, 2018, Plaintiff further moved for
Judgment on the Pleadings with respect to CWM. See Pl.’s MJP,
ECF No. 45. CWM opposed, see Opp’n of CWM to Pl.’s Mot. for J.
on the Pleadings (“CWM MJP Opp’n”), ECF No. 46; and Plaintiff
replied, see Reply in Supp. of Pl.’s Mot. for J. on the
Pleadings as to Defendant-Intervenor (“Pl.’s MJP Reply”), ECF
No. 47. On July 24, 2018, the Court referred the Plaintiff’s
Motion for Judgment on the Pleadings to Magistrate Judge
Robinson. See generally id.Magistrate Judge Robinson issued a R. & R. recommending
that this Court deny Plaintiff’s Motion for Judgment on the
Pleadings. See R. & R. (“MJP R. & R.”), ECF No. 48 at 1.
Magistrate Judge Robinson issued a second R. & R. recommending
that the Court grant in part and deny in part Defendants’ Motion
for Summary Judgment, grant CWM’s Motion for Summary Judgment,
and deny Plaintiff’s Cross-Motion for Summary Judgment, along
with Plaintiff’s requests for in camera review and discovery.
See R. & R. (“MSJ R. & R.”), ECF No. 49 at 26.
Plaintiff raised several objections to Magistrate Judge
Robinson’s R. & R.’s. See generally Pl.’s MJP Objs., ECF No. 50;
10
Pl.’s MSJ Objections, ECF No. 51. Defendants also raised
objections to the R & R. See Defs.’ MSJ Objections, ECF No. 52.
CWM responded to both sets of Plaintiff’s objections. See Resp.
of CWM to Pl.’s Objs. to the Magistrate Judge’s Proposed
Findings and Recommendations (“CWM Opp’n MJP Objs.”), ECF No.
53; Resp. of CWM to Pl.’s Objs. to the Magistrate Judge’s
Proposed Findings and Recommendations (“CWM Opp’n MSJ Objs.”),
ECF No. 56. Plaintiff also responded to Defendants’ objections.
See Pl.’s Opp’n to Defs.’ Ltd. Objs. to the Magistrate Judge’s
Proposed Findings and Recommendations (“Pl.’s Opp’n. MSJ
Objections”), ECF No. 54.
Plaintiff then filed a reply to CWM’s response to
Plaintiff’s objections to the R. & R. addressing Plaintiff’s
Motion for Judgment on the Pleadings. See Reply in Supp. of
Objs. to the Magistrate Judge’s Proposed Findings and
Recommendations (“Pl.’s Reply MJP Objs.”), ECF No. 55.
Defendants filed their own reply to Plaintiff’s opposition to
their objections, and simultaneously responded to Plaintiff’s
objections, see Defs.’ Resp. to Pl.’s Objs. to the Magistrate
Judge’s Proposed Findings and Recommendations and Reply in
Further Supp. of Defs.’ Ltd. Objs. (“Defs.’ Reply MSJ Objs.”),
ECF No. 57. Finally, Plaintiff submitted a reply. See Reply in
Supp. of Pl.’s Objs. to the Magistrate Judge’s Proposed Findings
and Recommendations (“Pl.’s Reply MSJ Objs.”), ECF No. 59.
11
A series of Notices of Supplemental Authority (“NSAs”)
followed. First, on September 17, 2018, Plaintiff filed a NSA
relevant to its challenge, in its Motion for Summary Judgment,
to OMB’s use of Exemption 5 to redact calendar entries. See NSA,
ECF No. 60. Defendants responded differentiating the authority.
See Defs.’ Resp. to Pl.’s NSA, ECF No. 61. A few months later,
on March 31, 2019, Plaintiff filed a NSA also addressing the
issue of the application of Exemption 5. See Pl.’s NSA, ECF No.
67. Defendants then filed a NSA as to Exemption 5 on July 27,
2020, see NSA, ECF No. 74; which Plaintiff attempted to
distinguish, see Resp. to NSA, ECF No. 75. Defendants submitted
a second NSA related to Exemption 5 on January 18, 2022, see
NSA, ECF No. 78, to which Plaintiff responded, see Resp. to NSA,
ECF No. 79. The motions are fully briefed and ready for
adjudication.
II. Legal Standard
A. Objections to a Magistrate Judge's Report and
Recommendation
Pursuant to Federal Rule of Civil Procedure 72(b), a party
may file specific written objections once a magistrate judge has
entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).
A district court “may accept, reject or modify the recommended
disposition.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §
636(b)(1) (“A judge of the court may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
12
magistrate judge.”). A district court “must determine de novo
any part of the magistrate judge's disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). “If, however,
the party makes only conclusory or general objections, or simply
reiterates his original arguments, the Court reviews the [R. &
R.] only for clear error.” Houlahan v. Brown, 979 F. Supp. 2d
86, 88 (D.D.C. 2013) (citation omitted). “Under the clearly
erroneous standard, the magistrate judge's decision is entitled
to great deference” and “is clearly erroneous only if on the
entire evidence the court is left with the definite and firm
conviction that a mistake has been committed.” Buie v. D.C., No.
CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C. Sept. 12, 2019)
(citing Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C. 2009))
(internal quotation marks omitted).
Objections must “specifically identify the portions of the
proposed findings and recommendations to which objection is made
and the basis for objection.” LCvR 72.3(b). “[O]bjections which
merely rehash an argument presented to and considered by the
magistrate judge are not ‘properly objected to’ and are
therefore not entitled to de novo review.” Shurtleff v. EPA, 991
F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, No.
08-2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)).
13
B. Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary
judgment motions must be granted if “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); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party
bears the initial burden “of informing the district court of the
basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be
discharged by ‘showing’ . . . that there is an absence of
evidence to support the nonmoving party’s case.” Celotex, 477
U.S. at 325.
In evaluating a summary judgment motion, “[t]he evidence of
the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255(quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59
(1970)). Summary judgment turns on “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail
as a matter of law.” Id. at 251-52. “[I]f the evidence is such
14
that a reasonable jury could return a verdict for the nonmoving
party”–and thus a “genuine” dispute over a material fact exists–
then summary judgment is not available. Id. at 248.
For purposes of summary judgment, materiality is determined
by the substantive law of the action. Id. Accordingly, the
substantive law identifies “which facts are critical and which
facts are irrelevant,” and “[o]nly disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.” Id.Similarly, the applicable substantive evidentiary standards of
the action guide “whether a given factual dispute requires
submission to a jury.” Id. at 255. The Court’s role at the
summary judgment stage “is not . . . to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.” Id. at 249.
C. FOIA
FOIA is based on the recognition that an informed citizenry
is “vital to the functioning of a democratic society, needed to
check against corruption and to hold the governors accountable
to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 242 (1978). It was enacted to “pierce the veil of
administrative secrecy and to open agency action to the light of
public scrutiny,” and it favors “full agency disclosure.” Dep’t
of the Air Force v. Rose, 425 U.S. 352, 360–61 (1976) (quoting
15
Rose v. Dep’t of the Air Force, 495 F.2d 261, 263 (2d Cir.
1974)). FOIA cases are usually resolved on motions for summary
judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d
521, 527 (D.C. Cir. 2011). The agency has the burden of
justifying its response to the FOIA request it received, and the
court reviews its response de novo. 5 U.S.C. § 552(a)(4)(B).
D. Adequate Search
To prevail on summary judgment in a FOIA case, the agency
must show that it conducted an adequate search for records
responsive to the plaintiff’s FOIA request. See Morley v. CIA,
508 F.3d 1108, 1114 (D.C. Cir. 2007). To make a prima facie
showing of adequacy, the agency must demonstrate that it made a
good-faith effort to search for responsive records “using
methods which can be reasonably expected to produce the
information requested.” Reporters Comm. for Freedom of Press v.
FBI, 877 F.3d 399, 402 (D.C. Cir. 2017) (quoting Oglesby v. U.S.
Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see Iturralde
v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)
(adequacy depends on the “appropriateness of the methods used”
rather than the “fruits of the search”).
It may do so by submitting “[a] reasonably detailed
affidavit, setting forth the search terms and the type of search
performed, and averring that all files likely to contain
responsive materials (if such records exist) were searched.”
16
Reporters Comm., 877 F.3d at 402 (quoting Oglesby, 920 F.2d at
68). Such affidavits “are accorded a presumption of good faith,
which cannot be rebutted by ‘purely speculative claims about the
existence and discoverability of other documents.’” SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771
(D.C. Cir. 1981)). However, “[a]t a bare minimum, the agency’s
affidavits need to specify ‘what records were searched, by whom,
and through what process.’” Rodriguez v. DOD, 236 F. Supp. 3d
26, 38 (D.D.C. 2017) (quoting Steinberg v. DOJ, 23 F.3d 548, 552
(D.C. Cir. 1994)).
“The agency fails to meet this burden such that summary
judgment is inappropriate when the agency fails to set forth the
search terms and the type of search performed with specificity
or otherwise provides ‘no information about the search
strategies of the [agency] components charged with responding to
[a] FOIA request’ and ‘no indication of what each [component’s]
search specifically yielded.’” Otero v. DOJ, 292 F. Supp. 3d
245, 251 (D.D.C. 2018) (quoting Reporters Comm., 877 F.3d at
402).
E. Discovery
“It is well established that discovery is rare in FOIA
cases.” Cole, 285 F. Supp. 3d at 76; see Thomas v. FDA, 587 F.
Supp. 2d 114, 115 n.2 (D.D.C. 2008) (noting that “discovery is
17
an extraordinary procedure in a FOIA action”). “Where an
agency’s declarations are insufficient to support a finding that
its search was adequate, courts ‘generally will request that an
agency supplement its supporting declarations rather than order
discovery.’” Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175,
183 (D.D.C. 2013) (quoting Wolf v. CIA, 569 F. Supp. 2d 1, 10
(D.D.C. 2008)). “However, discovery may be granted when [a]
plaintiff has made a sufficient showing that the agency acted in
bad faith, has raised a sufficient question as to the agency’s
good faith, or when a factual dispute exists and the plaintiff
has called the affidavits submitted by the government into
question.” Citizens for Responsibility and Ethics in Wash. v.
DOJ, No. Civ. 05- 2078 (EGS), 2006 WL 1518964, at *3 (D.D.C.
June 1, 2006) [Plaintiff hereinafter “CREW”] (internal citations
omitted).
F. Judgment on the Pleadings
A motion for judgment on the pleadings may be made at any
time “[a]fter the pleadings are closed—but early enough not to
delay trial.” Fed. R. Civ. P. 12(c). “Pleadings include any
‘copy of a written instrument that is an exhibit to a pleading,’
Fed. R. Civ. P. 10(c), such as relevant and authentic documents
attached to the complaint. Dist. No. 1, Pac. Coast Dist., Marine
Engineers Beneficial Ass'n, AFL-CIO v. Liberty Mar. Corp., 933
F.3d 751, 760 (D.C. Cir. 2019) (citation omitted). A motion
18
pursuant to Rule 12(c) is appropriately granted when, at the
close of the pleadings, “no material issue of fact remains to be
resolved, and [the movant] is clearly entitled to judgment as a
matter of law.” Montanans for Multiple Use v. Barbouletos, 542
F.Supp.2d 9, 13 (D.D.C. 2008) (citations omitted), aff'd 568
F.3d 225 (D.C. Cir. 2009). When evaluating a motion
for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c), courts employ the same standard that governs
a Rule 12(b)(6) motion to dismiss. Jung v. Ass'n of Am. Med.
Colls., 339 F. Supp. 2d 26, 35–36 (D.D.C. 2004). A court must
treat the complaint's factual allegations as true, “even if
doubtful in fact,” Twombly, 550 U.S. at 555, but it need not
accept as true legal conclusions set forth in a
complaint. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937,
1948 (2009). Accordingly, a court must accept the plaintiff's
well-pleaded factual allegations to the extent that “they
plausibly give rise to an entitlement to relief,” id. at
1950, and “may thus only grant judgment on the pleadings if it
appears, even accepting as true all inferences from the
complaint's factual allegations, that the plaintiff cannot prove
any set of facts entitling him to relief.” Lans v. Adduci
Mastriani & Schaumberg L.L.P., 786 F. Supp. 2d 240, 265 (D.D.C.
2011). Because Rule 12(c) provides judicial resolution at an
early stage of a case, the party seeking judgment on
19
the pleadings shoulders a heavy burden of justification. Liberty
Mar. Corp., 933 F.3d at 760.
III. Analysis
A. Motion for Judgment on the Pleadings
American Oversight argues that it should be granted
judgment on the pleadings as to CWM’s request that the Court
enjoin Plaintiff from receiving certain records because it has
“intervened in this action but failed to identify a cause of
action entitling it to do so or to state any claim upon which
relief can be granted.” Pl.’s MJP, ECF No. 45 at 6. Plaintiff
adds that because CWM seeks relief that does not exist under
FOIA, “its purported Affirmative Defense [asking the Court to
enjoin Plaintiff from receiving the Contested Records pursuant
to FOIA] must be dismissed for lack of federal subject matter
jurisdiction, or alternatively, for failure to state a claim.”
Id. at 7.
CWM responds that because it intervened as a defendant,
rather than a plaintiff, it is not obligated to assert a cause
of action in this matter. CWM’s MJP Opp’n, ECF No. 46 at 10. It
asserts that “it is well-established that where, as here, a
third party has an interest in the documents sought by a FOIA
requester, that party can intervene as a defendant to assert
defenses against the requester’s attempt to compel the
production of the documents.” Id. CWM further argues that it has
20
no need to file a “reverse FOIA” action against Defendants
because it has not sought to enjoin Defendants from producing
documents to Plaintiff, since the reason the congressional
records are at issue is Plaintiff’s FOIA case, and Defendants
would not need to be enjoined if they are awarded summary
judgment as to the documents at issue for CWM. Id. at 14-15.
Plaintiff replies that CWM’s actions are unlike those CWM cites
because it did not “buttress a position taken by the party
defendant in the case.” Pl.’s MJP Reply, ECF No. 47 at 6.
Instead, Plaintiff argues that CWM is asking the Court to
“overturn an informal administrative determination that the
defendant agencies have already made that the Contested Records
are agency records.” Id. at 6-7.
Magistrate Judge Robinson finds that CWM “was properly
admitted to this action as Defendant-Intervenor, having
satisfied all the requirements therefor,” and is consequently
“permitted to bring the same affirmative defense that either of
the named defendants might have brought, including the
‘congressional records’ defense at issue here.” MJP R. & R., ECF
No. 48 at 6-7. Magistrate Judge Robinson also finds that because
CWM properly entered this litigation as a Defendant-Intervenor,
this Court “has subject-matter jurisdiction over this action and
all claims made therein.” Id. at 8. As a result, Magistrate
21
Judge Robinson recommends that this Court deny the Motion for
Judgment on the Pleadings. Id. at 9.
Plaintiff objects to Magistrate Judge Robinson’s R. & R.,
arguing that: (1) CWM cannot challenge an adverse agency
determination as a defendant in a FOIA action; and (2) CWM’s
claim is inadequate and the Court lacks subject-matter
jurisdiction because the positions of CWM and Defendants are not
aligned. See Pl.’s MJP Objs., ECF No. 50 at 11. The Court
discusses each of these in turn. The Court does not discuss the
parts of Magistrate Robinson’s R. & R. to which no objection is
raised.
1. The Committee Is Properly Acting as a Defendant in a
FOIA Action
Plaintiff argues that “the Committee’s claim amounts to a
direct challenge to the executive branch’s treatment of the
Contested Records” since “the defendant agencies have evinced
their informal administrative determination that the Contested
Records are agency records subject to FOIA” whereas CWM “claims
that the Contested Records are, instead, congressional records
not subject to FOIA.” Pl.’s MJP Objs., ECF No. 50 at 7-8.
Plaintiff argues that this alleged misalignment in positions
makes this case different from the cases cited by CWM, in which
the intervenor joined the action to support the agency’s
determinations regarding the records at issue, “not to challenge
an adverse determination made by the agency.” Id. at 9. CWM
22
responds that “Defendants have vigorously resisted disclosure of
the redacted contents of the congressional communications at
issue, asserting that those communications were intended to be
confidential; the Committee’s affirmative defense provides an
additional ground for rejecting Plaintiff’s attempts to compel
disclosure of those documents, and therefore supplements the
defenses being asserted by Defendants.” CWM Opp’n MJP Objs., ECF
No. 53 at 15. The Court agrees with CWM.
As a threshold matter, the Court reviews Magistrate Judge
Robinson’s R. & R. only for clear error. Pursuant to Federal
Rule of Civil Procedure 72(b), once a magistrate judge has
entered a recommended disposition, a party may file specific
written objections. The district court “must determine de novo
any part of the magistrate judge’s disposition that has been
properly objected to,” and “may accept, reject or modify the
recommended disposition.” Fed. R. Civ. P. 72(b)(3). Proper
objections “shall specifically identify the portions of the
proposed findings and recommendations to which objection is made
and the basis for objection.” Local R. Civ. P. 72.3(b); see also
Means v. District of Columbia, 999 F. Supp. 2d 128, 132 (D.D.C.
2013).
“If, however, the party makes only conclusory or general
objections, or simply reiterates his original arguments, the
Court reviews the [R. & R.] only for clear error.” Houlahan, 979
23
F. Supp. 2d at 88 (internal citation omitted). “Under the
clearly erroneous standard, the magistrate judge's decision is
entitled to great deference” and “is clearly erroneous only if
on the entire evidence the court is left with the definite and
firm conviction that a mistake has been committed.” Buie, No. CV
16-1920 (CKK), 2019 WL 4345712, at *3.
Here, Plaintiff’s objection as to the adversity of CWM and
Defendants’ positions is repeated from their filings on the
Motion for Judgment on the Pleadings. See Pl.’s MJP Reply, ECF
No. 47 at 8, 9, 14, 16. Further, Magistrate Judge Robinson
specifically addressed this argument in her R. & R. See MJP R. &
R., ECF No. 48 at 5 (stating that “[t]he fact that the agencies
failed to raise the specific ‘congressional records’ defense and
instead simply redacted the information from the documents
pursuant to FOIA’s Exemption 5 does not provide a significant
enough discrepancy to label the two approaches ‘directly
adverse,’ or even ‘inapposite’”) (citation omitted). The Court
therefore only reviews the R. & R. for clear error and does not
find any here.
First and foremost, the Court is unpersuaded that
Defendants and CWM have adverse positions. As Magistrate Judge
Robinson points out, “[b]oth Defendants and the Committee have
sought, from the time this issue arose, to preserve the
confidentiality of the contested documents.” MJP R. & R., ECF
24
No. 48 at 5 (citations omitted). That CWM and Defendants present
different defenses for why the records should not be disclosed
does not mean their positions are adverse. CWM is not, as
Plaintiff suggests, appealing the agencies’ decision, but rather
attempting to “prevent any further disclosure.” MJP R. & R., ECF
No. 48 at 5. For this reason, it is irrelevant if CWM “surely
intends this potential finding to bind Defendants with respect
to their treatment of the Contested Records in the future,
including when responding to other future FOIA requests.” Pl.’s
MJP Objs., ECF No. 50 at 10.
Plaintiff describes the case law cited by CWM as a “laundry
list of inapposite citations,” and attempts to distinguish the
authorities, Pl.’s Reply MJP Objs., ECF No. 55 at 6; but as CWM
points out, Plaintiff “offers no explanation or argument as to
why it would make any difference [for the purpose of this
lawsuit] if the Committee’s defense were adverse to Defendants’
position.” CWM Opp’n MJP Objs., ECF No. 53 at 16. Simply put,
Plaintiff presents no case law as to why an adverse position,
were it to exist, would impact the decision here.
Plaintiff does suggest that “were the Committee to prevail
in arguing that the Contested Records are, in fact,
‘congressional records,’ Defendants would be severely limited in
how they could use the Contested Records and related documents
going forward.” Pl.’s MJP Objs., ECF No. 50 at 9. However, as
25
CWM points out, Defendants’ internal use of the documents is
irrelevant to CWM’s argument, and Plaintiff’s own argument is
unsupported by precedent. See ACLU v. CIA, 823 F.3d 655, 665,
667 (D.C. Cir. 2016) (upholding congressional-record status of
document even though agency had “discretion to use the
[document] for internal purposes” and to disseminate within the
executive branch “as broadly as appropriate,” and holding that
“[i]t does not matter that the [document] was neither stored on
the CIA’s segregated network drive nor kept in the CIA’s Reading
Room”). For these reasons, the Court concludes that Magistrate
Judge Robinson did not err in concluding that CWM is a proper
defendant in this action.
2. The Court Has Subject Matter Jurisdiction Over this
Action
Plaintiff next argues that CWM has failed to state a claim
and that the Court lacks subject matter jurisdiction over the
claim if CWM did succeed in stating one, on the same ground that
the positions of CWM and Defendants are adverse. See Pl.’s MJP
Objs., ECF No. 50 at 11. Plaintiff essentially repackages its
earlier arguments on adversity, arguing that “the Committee’s
claim for relief, while purportedly directed [as an affirmative
defense] at Plaintiff, is in reality a claim for relief against
the defendant agencies,” in the form of enjoining Plaintiff’s
access to the Contested Records. Id. at 13. Plaintiff concludes
that “[b]ecause the relief the Committee seeks is only available
26
under the APA [as a reverse FOIA lawsuit], and not through FOIA,
the Committee has failed to state a claim upon which relief can
be granted.” Pl.’s MJP Objs., ECF No. 50 at 14. 3
CWM responds that “Plaintiff offers no authority for its
counter-intuitive theory that the Committee was somehow
precluded from asserting an affirmative defense against
Plaintiff’s efforts to compel disclosure and was instead
obligated to file a separate action against Defendants to enjoin
them from doing something that they have evidenced no
inclination to do in the absence of legal compulsion under
FOIA.” CWM Opp’n MJP Objs., ECF No. 53 at 20. Plaintiff replies
that CWM is refusing to acknowledge that it is in fact seeking
an injunction, which is unsupported by FOIA. Pl.’s MJP Reply,
ECF No. 55 at 3-4. The Court reviews Magistrate Judge Robinson’s
R. & R. only for clear error since American Oversight’s
arguments are repeated from their Motion filings. See Pl.’s MJP,
ECF No. 45 at 11-14; see also Houlahan, 979 F. Supp. 2d at 88.
3 American Oversight relatedly argues that “the Magistrate
Judge’s conclusion that the Court has subject matter
jurisdiction over the Committee’s ‘Affirmative Defense’ also
rests on the mistaken conclusion that the Committee’s position
is aligned with the position of the defendant agencies such that
intervening as a defendant in this FOIA action was proper.”
Pl.’s MJP Objs., ECF No. 50 at 14. The Court does not reach this
argument, since it has already determined that the positions are
not adverse.
27
The Court concludes that Magistrate Judge Robinson did not err
in her recommendation.
As Magistrate Judge Robinson states, “FOIA does not provide
an independent cause of action for a party to bar an executive
agency’s willing disclosure of documents, but it is another
matter entirely to argue that defendants in a FOIA case may not
mount any defense against a plaintiff’s attempt to use the
statute to compel disclosure, as Plaintiff argues here.” MJP
R. & R., ECF No. 48 at 6. Here, the relief CWM seeks supplements
Defendants’ defense, since the “goal of both defenses—Exemption
5 and congressional records—is to prevent the disclosure of the
documents for the purpose of preserving their confidential
nature.” Id. at 5. Plaintiff points to no authority that
defenses are required to be consistent with each other.
Nor is the Court persuaded by Plaintiff’s misleading
characterization that CWM is seeking an injunction against
Defendants. As a practical matter, it is correct that if
Plaintiff prevails in this suit against Defendants, CWM’s
intervention, if successful, would result in Defendants having
to withhold documents. However, CWM’s lawsuit is directed at
preventing a release that is being compelled by Plaintiff, while
Defendants have resisted disclosure and explained that they “had
an expectation that [their] communications [with Congress] would
be kept confidential.” Slemrod Decl., ECF No. 25-3 ¶ 19;
28
Skrzycki Decl., ECF No. 25-5 ¶ 11 (“I expected that
communications between HHS and Congress would be kept
confidential.”). Defendants and CWM are aligned in their goal of
preventing further disclosure, and their defenses thus serve to
supplement each other, as Magistrate Judge Robinson found. See
MJP R. & R., ECF No. 48 at 5.
Finding no clear error in Magistrate Judge Robinson’s R. &
R., the Court hereby ADOPTS the R. & R., see ECF No. 48, and
DENIES the Motion for Judgment on the Pleadings, see ECF No. 45.
B. Motion for Summary Judgment
Defendants OMB and HHS move for summary judgment, arguing
that they properly withheld information from disclosure pursuant
to FOIA Exemption 5. See generally Defs.’ MSJ, ECF No. 25-1.
Defendant-Intervenor CWM also moves for summary judgment with
respect to its affirmative defense on the ground that four
documents at issue in this case are congressional records and
therefore not subject FOIA. See CWM’S MSJ, ECF No. 27 at 1.
Plaintiff American Oversight cross-moves for summary judgment,
arguing that Defendants improperly withheld information under
Exemption 5, and that Defendant-Intervenor CWM incorrectly
claims that four of the records produced by Defendants are not
subject to FOIA. See Pl.’s XMSJ, ECF No. 30 at 1. Plaintiff also
requests an in camera review of the documents so that the Court
may ascertain whether the exemption is applicable, id. at 39;
29
and asks the Court to grant discovery in the event the Court
denies its motions for summary judgment, id. at 53.
Magistrate Judge Robinson finds that: (1) the search
conducted by HHS was reasonably designed to turn up the
documents responsive to the request; (2) the legended documents
sought to be retained by CWM should have been withheld as
congressional documents and are not subject to disclosure under
FOIA; (3) the redacted documents can be appropriately withheld
under Exemption 5’s consultant corollary, but only with regard
to communications directly related to the agencies’ solicitation
for advice and the responses thereto and which are sufficiently
described by affidavit as being related to an agency
deliberation; (4) in camera review of the redacted documents is
neither necessary nor appropriate under these circumstances; and
(5) discovery is unnecessary to decide the case on summary
judgment. MSJ R. & R., ECF No. 49 at 2.
Plaintiff American Oversight objects: that (1) HHS’s search
was not adequate; (2) the redacted documents were not properly
withheld; (3) Defendants did not meet their burden of showing
that some of the challenged records are protected under the
deliberative process privilege; (4) Magistrate Judge Robinson
did not address Plaintiff’s arguments as to Defendants’
redactions in calendar entries and attachments; (5) the
contested records are not congressional records outside the
30
scope of FOIA; and (6) Plaintiff’s request for in camera review
should have been granted. Pl.’s MSJ Objs., ECF No. 51 at 3-4.
Defendants, in turn, object to the “Report and Recommendation’s
suggestion that the agencies’ affidavits and Vaughn indexes fail
to sufficiently identify a specific agency deliberative process
for some of the redacted communications.” Defs.’ MSJ Objs., ECF
No. 52 at 6. The Court discusses each of these objections in
turn, along with the appropriate standard of review for the
objections before. The Court does not discuss the parts of
Magistrate Robinson’s R. & R. to which no objection is raised.
1. HHS Conducted a Reasonably Adequate Search
An agency is entitled to summary judgment in a FOIA case with
respect to the adequacy of its search if the agency shows “that
it made a good faith effort to conduct a search for the
requested records, using methods which can be reasonably
expected to produce the information requested.” Oglesby v. Dep’t
of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (citations omitted),
superseded by statute on other grounds by Electronic FOIA
Amendments 1996, Pub. L. No. 104– 231, 110 Stat. 3048. “[T]he
issue to be resolved is not whether there might exist any other
documents possibly responsive to the request, but rather whether
the search for those documents was adequate.” Weisberg v. DOJ,
745 F.2d 1476, 1485 (D.C. Cir. 1984) (citation omitted). An
agency can establish the reasonableness of its search by
31
“reasonably detailed, nonconclusory affidavits describing its
efforts.” Baker & Hostetler LLP v. Dep’t of Commerce, 473 F.3d
312, 318 (D.C. Cir. 2006). “Agency affidavits are accorded a
presumption of good faith, which cannot be rebutted by ‘purely
speculative claims about the existence and discoverability of
other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
1200 (D.C. Cir. 1991) (citation omitted). Here, Magistrate Judge
Robinson finds that HHS conducted a reasonably adequate search,
because it “conducted its searches using what it perceived to be
a reasonable set of search terms (the most commonly used
references) that would turn up the requested documents,” and
which covered the entire scope of the request. See MSJ R. & R.,
ECF No. 49 at 9. In response to this, Plaintiff first objects
that Magistrate Judge Robinson failed to consider “Plaintiff’s
argument that it was unreasonable for HHS to select search terms
based only on the terms most often used within HHS, when the
communications sought by Plaintiff’s FOIA request expressly
involved entities outside HHS.” Pl.’s MSJ Objs., ECF No. 51 at
9. Second, Plaintiff objects that “the Magistrate Judge failed
to give adequate weight to HHS’s concession that other terms
may, in fact, have been used by agency personnel.” Id. at 10.
Third, Plaintiff objects that “the Magistrate Judge did not
properly consider the available evidence showing that other
32
terms were, in fact, used by both agency personnel and members
of Congress.” Id. at 11.
Defendants respond that American Oversight’s arguments do
not “meaningfully engage with whether HHS appropriately
exercised its discretion to determine what constitutes a
reasonable search.” Defs.’ Opp’n MSJ Objs., ECF No. 57 at 28.
The Court agrees, and reviews Magistrate Judge Robinson’s R. &
R. only for clear error since Plaintiff essentially argues that
Magistrate Judge Robinson did not draw the right conclusions
based on the arguments in Plaintiff’s brief, which are
acknowledged in the R. & R. See MSJ R. & R., ECF No. 49 at 8.
“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.” SafeCard Servs.,
Inc., 926 F.2d at 1201. Here, as Defendants point out, “[t]he
question is not whether it would be reasonable to expect that a
responsive record might contain the word ‘Obamacare’; rather,
the question is whether it would be reasonable to expect a
responsive record to contain none of the three terms HHS used.”
Id.; see also Weisberg, 745 F.2d at 1485. Even if, as Plaintiff
argues, “political interlocutors with whom HHS was
communicating” used different terminology than internal HHS
33
employees, see Pl.’s MSJ Objs., ECF No. 51 at 10; given that
they were interlocutors with whom HHS was communicating as part
of its operations, this Court concludes there is nothing
unreasonable in HHS choosing to search the most common forms of
reference “used in the day-to-day operations of the Department”:
the acronyms “ACA” and “AHCA”, see Defs.’ MSJ, ECF No. 25-4 at
6. As Magistrate Judge Robinson observed, “[a]ny document that
contained both an included term and an excluded term would still
have been responsive to the search.” MSJ R. & R., ECF No. 49 at
9. Contrary to Plaintiff’s assertion, HHS is not required to
“assert that other terms were not also used, or even that all of
the other proposed terms were used less frequently.” Pl.’s MSJ
Objs., ECF No. 51 at 10.
Nor is it true that Magistrate Judge Robinson “did not
properly consider the available evidence showing that other
terms were, in fact, used by both agency personnel and members
of Congress.” Id. at 11. Plaintiff itself states two sentences
before this assertion that Magistrate Judge Robinson “noted
HHS’s concession that congressional and HHS staffers—including
HHS Secretary Tom Price—occasionally referred to the law as
“Obamacare,” but nevertheless deemed the search adequate.” Id.
The reason Magistrate Judge Robinson was unpersuaded by the
evidence was a lack of “significant evidence to suggest that
other documents could be found that do not contain one of the
34
search terms used.” MSJ R. & R., ECF No. 49 at 9. This is in
keeping with the legal standard, which holds that “purely
speculative claims about the existence and discoverability of
other documents,” cannot rebut reasonably detailed agency
affidavits related to the adequacy of the search, such as those
provided in this case. SafeCard Servs., Inc., 926 F.2d at 1200;
see also Decl. of Michael Bell (“Bell Decl.”), ECF No. 25-4 ¶ 7;
Decl. of Thomas Hitter (“Hitter Decl.”), ECF No. 25-2 ¶ 6.
The Court concludes that Magistrate Judge Robinson did not
err in her R. & R., ADOPTS this portion of the R. & R., and
GRANTS Defendants’ Motion for Summary Judgment regarding the
adequacy of HHS’s search, see ECF No. 25.
2. The Redacted Documents Were Appropriately Withheld
Under the Consultant Corollary
Exemption 5 protects from disclosure “inter-agency or
intra-agency memorandums or letters that would not be available
by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5). The exemption ensures that
members of the public cannot obtain through FOIA records that
would be “normally privileged in the civil discovery context.”
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Thus, in
order to qualify for Exemption 5 privilege, the agency must: (1)
meet the threshold requirement that the disputed documents be
“intra-agency or interagency,” and (2) establish that they are
covered by a common law or statutory privilege that would exempt
35
them from civil discovery. Dow Jones & Co. v. Dep’t of Justice,
917 F.2d 571, 573–74 (D.C. Cir. 1990).
Under the “consultant corollary,” however, agencies retain
the ability to seek advice from bodies outside the executive,
where for the purpose of providing that advice, they are treated
as agency employees and thus satisfy the threshold requirement.
McKinley v. Bd. of Governors of the Fed. Reserve Sys., 647 F.3d
331, 336 (D.C. Cir. 2011). For an outside party to fall within
the consultant corollary exception to the Exemption 5 threshold
requirement, there are two pivotal conditions: (1) the outside
party cannot provide self- interested advice to the agency, and
(2) the agency must have solicited the advice from the party.
See Dep’t of Interior v. Klamath Water Users Protective Ass’n,
532 U.S. 1, 10–11 (2001); Nat’l Inst. Military Justice v. U.S.
Dep’t of Defense (“NIMJ”), 512 F.3d 677, 680 (D.C. Cir. 2008).
In particular, “communication that aids the agency’s
deliberative process [may] be protected as ‘intra-agency’” under
Exemption 5. Judicial Watch, Inc. v. DOT, 950 F. Supp. 2d 213,
218 (D.D.C. 2013); see also NIMJ, 512 F.3d at 681. Although the
Court of Appeals for the District of Columbia Circuit (“D.C.
Circuit”) has held that Congress is not an “agency” within the
meaning of FOIA, Dow Jones & Co, Inc., 917 F.2d at 574;
“communications between an agency and Congress [sh]ould receive
protection as intra-agency memoranda if they were ‘part and
36
parcel of the agency’s deliberative process.’” Rockwell Int’l
Corp. v. DOJ, 235 F.3d 598, 604 (D.C. Cir. 2001) (quoting Dow
Jones, 917 F.2d at 573–75).
a. The Documents Are Intra-Agency Records
i. Congress was Not Acting in Its Self-Interest
Magistrate Judge Robinson finds that in this Court, “the
relevant inquiry is not whether the party was simply self-
interested, but whether the advice provided by the consultant
conflicts with the agency’s ability to advance its own
interests.” MSJ R. & R., ECF No. 49 at 16. She concludes that
Congress’ members’ interests in the documents at issue are not
“adverse to the interests of the government, they are the
interests of the government” since Congress was providing advice
“in the interest of the American people” rather than its own
self-interest. Id. Plaintiff objects that Magistrate Judge
Robinson’s approach, which it perceives as “requiring a FOIA
requester to demonstrate that an outside consultant was acting
‘adverse to its competitors’ or ‘adverse to the government,’”
uses an inappropriately high bar for what constitutes an
“independent interest” sufficient to defeat the application of
the consultant corollary. Pl.’s MSJ Objs., ECF No. 51 at 15.
Plaintiff instead interprets the caselaw as focusing on “whether
or not the outside consultant had an ‘independent interest’ in
the outcome of the agency’s decisionmaking process.” Id. at 16.
37
Defendants respond that American Oversight is attempting to
broaden the reach of Klamath, and that an “an ‘independent
interest,’ standing alone, is not enough to defeat the
application of Exemption 5.” Defs.’ Opp’n MSJ Objs., ECF No. 57
at 15. The Court reviews Plaintiff’s objection de novo.
The legal standard for self-interest under the consultant
corollary is hotly debated. Klamath has spawned much discussion
as to whether an independent interest on the part of the
consultant is now disqualifying. See Am. Oversight v. U.S. Dep't
of Health & Hum. Servs., 380 F. Supp. 3d 45, 55 (D.D.C. 2019)
[defendant hereinafter “HHS”]. There remains substantial
uncertainty on the degree to which the D.C. Circuit has narrowed
the scope of the consultant corollary. See Am. Oversight v.
United States Dep't of Transp., Civ. Act. No. 18-1272 (CKK),
2022 WL 103306, at *3 (D.D.C. Jan. 11, 2022) (collecting cases).
One line of cases points out that the D.C. Circuit “has
recognized that, under some circumstances, a consultant and an
agency may share common goals such that, even if the consultant
appears to be acting to foster its own interests, its actions
might also be construed as aiding an agency process.” Judicial
Watch, Inc. v. U.S. Dep’t of State, 306 F. Supp. 3d 97, 111
(D.D.C. 2018) (citing Formaldehyde Inst. v. HHS, 889 F.2d 1118,
1124-25 (D.C. Cir. 1989)); see also Am. Oversight v. United
States Dep't of the Treasury, 474 F. Supp. 3d 251, 265 (D.D.C.
38
2020). Contrasting authority within this District, however,
observes that “since Klamath, the [ ] Circuit has consistently
reiterated the principle that the outside consultant must be a
neutral party who is not representing its own interests” and
that “it appears that the law in this Circuit does require that
outside consultants lack an independent interest.” Am. Oversight
v. HHS, 380 F. Supp. 3d at 54 (citation and quotation marks
omitted).
If a non-agency interlocutor must bring no divergent
interest to bear, then the records at issue would lose their
Exemption 5 protection. The Am. Oversight v. HHS court advocated
for such an approach, while the Am. Oversight v. Dep’t of
Treasury and the Am. Oversight v. Dep’t of Transp. courts
rejected it. In line with the latter two cases, this Court
declines to read Klamath as preventing Exemption 5 protection in
this case. First, the Am. Oversight v. HHS court ultimately
“put[] aside the narrow legal question of whether the mere
existence of some independent interest in the topic on the part
of the outsider is disqualifying” and instead found that “the
record does not support a finding that the communications with
Congress played essentially the same part in an agency’s process
of deliberation as documents prepared by agency personnel.” Id.
(citation and quotation marks omitted). This fact alone renders
the reasoning of American Oversight “unauthoritative dictum—
39
unnecessary to its holding and nonbinding upon this court.” Nat.
Res. Def. Council, Inc. v. Nuclear Regul. Comm’n, 216 F.3d 1180,
1188 (D.C. Cir. 2000).
Second, “when discussing draft legislation, members of the
two political branches may share the exact same goals and desire
to further the exact same piece of legislation.” Am. Oversight
v. Dep’t of Transp., 2022 WL 103306, at *5. To that end, the
record in this case reflects that the “redacted emails involve
members of Congress and congressional staff of the Republican
Party who shared an interest with agencies in the current
Republican administration in working to repeal the ACA and
replace it with the health care reform legislation that was
under consideration.” Slemrod Decl., ECF No. 25-3 ¶ 7. This
common interest “stands in stark contrast to the parochial
interests that troubled the Am. Oversight v. HHS court.” Am.
Oversight v. United States Dep't of Transp., 2022 WL 103306, at
*5.
Further, even if there were parts of the legislation where
the interests of members were not “necessarily aligned,” Pl.’s
MSJ Objs., ECF No. 51 at 18; the consultant corollary would only
be inapplicable if the interests were: (1) necessarily adverse;
and (2) the members were competitors. Klamath, 532 U.S. at 14.
The mere fact that “members of Congress are themselves people,
with personal, professional, and political motivations,” Pl.’s
40
MSJ Objs., ECF No. 51 at 18; is far from convincing since it
would apply to any and every consultant who provides advice to
an agency. While Klamath provides support for consultants not
being “necessarily adverse” to each other, the Court is unaware
of, and Plaintiff does not point to, any case law that requires
the advice of different consultants [here members of Congress]
to be aligned with each other. See generally id. Nor is there a
requirement that consultants must “align with what would be best
for the American people writ large.” Id. at 18. Finally, the
Court is unpersuaded that even if “HHS and OMB’s congressional
interlocutors all had interests in advancing the approach that
best served their constituents,” Pl.’s MSJ Objs., ECF No. 51 at
20; they were acting as “self-advocates at the expense of others
seeking benefits inadequate to satisfy everyone.” Klamath, 532
U.S. at 12. As Defendants point out, “it makes sense that
representatives of a co-equal branch of government, who swore an
oath to ‘defend the Constitution of the United States’ and to
‘well and faithfully discharge the duties of the[ir] office,’
would not have the kind of adverse interests that were at issue
in Klamath. Defs.’ Opp’n MSJ Objs., ECF No. 57 at 16. To reach
the conclusion American Oversight is advocating for is to ignore
that members of Congress may be solicited for advice by agencies
precisely because they will advocate for their constituencies in
the process of working with the Executive Branch on the common
41
goal of passing legislation, and thereby aid the agency’s
process. See Judicial Watch, 306 F. Supp. 3d at 111. It also
bears noting that while certain healthcare policies may better
suit specific constituencies, the adoption thereof is not a
zero-sum game of the sort at play in the water allocation rights
in Klamath. 532 U.S. at 13.
In addition, the Court is unable to see the point or
relevance of American Oversight’s separation-of-powers argument.
American Oversight appears to suggest that because the three
branches of government are meant to serve as a check and balance
on each other, Magistrate Judge Robinson erred in ostensibly
believing that “almost by definition [] [Congress] shares
interests and has a confidential consulting relationship with
the executive branch agencies that would justify applying
Exemption 5’s protections to their discussions.” Pl.’s MSJ
Objs., ECF No. 51 at 19. The Court agrees that Magistrate Judge
Robinson appears to represent both the interest of Congress and
the Executive as “the interests of the government,” MSJ R. & R.,
ECF No. 49 at 16-17; but sees no practical import from this for
a separation of powers concern in the present scenario. As
Defendants point out, “American Oversight has not identified a
single congressional or executive power that would be usurped by
holding that certain deliberative communications between the
branches fall within Exemption 5,” and instead seems to assume
42
that “because there are structural incentives for the branches
to check each other, their interests can never be aligned when
they choose to work within that structure to accomplish shared
goals.” Defs.’ Opp’n MSJ Objs., ECF No. 57 at 18. Moreover, the
Court is not adopting a reading, nor does Magistrate Judge
Robinson conclude, that “the interests of Congress and the
defendant agencies are sufficiently aligned to justify
protecting their communications under the consultant corollary
simply by virtue of the fact that they are both governmental
entities.” Pl.’s MSJ Objs., ECF No. 51 at 24. Magistrate Judge
Robinson’s conclusion, and this Court’s finding that the
threshold requirement has been met, is based on the fact that
“Congress members were not providing advice in their own self-
interest.” MSJ R. & R., ECF No. 49 at 16.
ii. Defendants Solicited The Advice From
Congress
The second factor of the consultant corollary requires that
the documents submitted by outside consultants (and sought to be
exempted from disclosure) are actually solicited by the agency
in question. McKinley, 647 F.3d 331 at 338; see NIMJ, 512 F.3d
at 680–81 (finding that Exemption 5 applies to documents
“submitted by non-agency parties in response to an agency’s
request for advice”); Ryan v. Dep’t of Justice, 617 F.2d 781,
790–91 (D.C. Cir. 1980) (holding that Senators’ responses to a
43
questionnaire from the DOJ were “intra-agency” records for
purposes of Exemption 5).
Magistrate Judge Robinson’s findings as to which of the
communications at issue were solicited by Defendants are
somewhat unclear. She finds that both OMB and HHS solicited
information from Congress, see MSJ R. & R., ECF No. 49 at 17;
but then also states that “communications between Defendants and
Congress that do not directly relate to the requests for advice
and the relevant responses thereto are not covered by the
consultant corollary and are subject to disclosure,” id. at 18.
Plaintiff points out that “the Magistrate Judge’s recommendation
provides little guidance regarding which of the challenged
communications she determined ‘directly relate to the requests
for advice,’ and which do not.” Pl.’s MSJ Objs., ECF No. 51 at
22. Plaintiff also argues that Magistrate Judge Robinson: (1)
“appears to improperly credit generic and conclusory assertions
in Defendants’ declarations that lack the specificity required
to determine whether any particular communication is a covered
solicitation”; (2) “ignored the available evidence showing that
for many of the email exchanges at issue in this case, it was
Congress who was seeking advice or input from the agencies, and
not the opposite”; and (3) “erroneously ignored the broader
context of these communications, which establishes that the
communications primarily relate to a legislative deliberation
44
regarding the passage of a bill, and not internal executive
branch deliberations.” Id. CWM responds that “soliciting” input
from an outsider does not require a formal, one-way request;
rather, it can encompass a range of contexts, and Magistrate
Judge Robinson’s discussion of “agency solicitation” therefore
accurately synthesizes the case law in this Circuit. Defs.’
Opp’n MSJ Objs., ECF No. 57 at 20. While the first and third of
American Oversight’s three objections are adequately specific,
the second is reiterated from Plaintiff’s earlier pleadings. See
Pl.’s XMSJ, ECF No. 30 at 20. Thus, the Court considers the
first and third objection de novo, and the second for clear
error.
Here, as Magistrate Judge Robinson notes, the consultations
with Congress, in the case of the OMB, began when “OMB solicited
information from Congressional personnel regarding the status of
the AHCA throughout the drafting and debate process.” Slemrod
Decl., ECF No. 25-3 ¶ 13. HHS’s correspondence with Congress
began when HHS “sought feedback from Congress on legislative and
administrative options for” health care reform, which Congress
was considering at the time. Skrzycki Decl., ECF No. 25-5 ¶ 9.
It is therefore not that case that these statements do not
“establish that HHS and OMB specifically solicited advice,
recommendations, or opinions from their congressional
correspondents under an express understanding that the
45
communications were for the purpose of informing an internal
executive branch decisionmaking process.” Pl.’s MSJ Objs., ECF
No. 51 at 22. Plaintiff argues that these “conclusory
statements” “do not apply with equal force to every record in
Defendants’ productions,” id.; but they are not required to,
because so long as advice has been solicited, back-and-forth
communications are part of a “fluid process.” Judicial Watch,
Inc., 306 F. Supp. 3d at 113. The agency affidavits in this
case, which are accorded a presumption of good faith, are far
from conclusory and detail the role and purpose of the
communications at issue, which both agencies establish they
solicited. See Slemrod Decl., ECF No. 25-3 ¶¶ 8-22; Skrzycki
Decl., ECF No. 25-5 ¶¶ 8-18; Decl. of Sarah C. Arbes (“Arbes
Decl.”), ECF No. 25-6 ¶¶ 7-9. The Court concludes that
Magistrate Judge Robinson did not “improperly credit generic and
conclusory assertions in Defendants’ declarations.” Pl.’s MSJ
Objs., ECF No. 51 at 22.
Plaintiff also maintains that Magistrate Judge Robinson
“ignored the available evidence showing that for many of the
email exchanges at issue in this case, it was Congress who was
seeking advice or input from the agencies, and not the
opposite.” Pl.’s MSJ Objs., ECF No. 51 at 22; see also Decl. of
Sara Creighton (“Creighton Decl..”), ECF No. 30-3; Exhibit 9
(OMB Excerpts), ECF No. 30-3 at 61 (email chain where OMB
46
Director Mick Mulvaney writes to Representative Paul Ryan’s
Policy Director Austin Smythe, “Austin . . . help me. What are
you specifically asking us to do?”); id. at 73 (email from
Representative Steve Scalise staffer Matt Bravo to OMB asking if
“it’s possible to get Mr. Mulvaney to make some calls today?”);
id. at 129 (staffer for Senator John Thune thanking OMB staffer
for his help); Creighton Decl. Ex. 10 (HHS Excerpts), ECF No.
30-3 at 280 (email in which Representative Kevin McCarthy’s
Chief of Staff tells HHS employees that they “have been
incredibly helpful to us in this process”); Ex. B (HHS-Sept
2017-01621–23), ECF No. 27-2 at 51 (email in which congressional
staffer asked HHS for information and thanked them for their
help); Slemrod Decl., ECF No. 25-3 ¶ 17 (referring to technical
assistance “to assist Congress in drafting legislation”).
However, Magistrate Judge Robinson specifically stated that
“[i]t is irrelevant whether Congress received help in return or
even initiated the contact between itself and the agencies; the
relevant question for this factor is whether the agency
established a consultant relationship with Congress by
soliciting their advice.” MSJ R. & R., ECF No. 49 at 18 (citing
McKinley, 647 F.3d 331 at 338; NIMJ, 512 F.3d at 680–81).
Admittedly, while Magistrate Judge Robinson seemed to establish
that some communications are unprotected by the consultant
corollary because they do not relate to requests for advice, she
47
did not establish which communications are not covered.
Plaintiff disagrees that any communications are protected and
argues that Magistrate Judge Robinson “erroneously ignored the
broader context of these communications,” Pl.’s MSJ Objs., ECF
No. 51 at 22. The Court agrees with Plaintiff’s statement but
comes to the opposite conclusion as to coverage. The affidavits
provided by Defendants establish that HHS “engaged in
discussions and sought feedback from Congress on legislative and
administrative options for” health care reform. Skrzycki Decl.,
ECF No. 25-5 ¶ 9. This included daily staff meetings to
determine the agency’s next steps for congressional outreach.
Id. ¶ 10. Further, “HHS had robust internal deliberations and
communicated with Congress about potential proposals and
strategy as Congress worked through draft legislations.” Id. ¶
14. The feedback received through those discussions “contributed
to HHS’ process for evaluating the potential rulemaking and
operational changes that might be necessary if a bill passed.”
Id. ¶ 13. In addition, “HHS engaged with Congress to monitor and
build support for the AHCA.” Id. ¶ 15. The communications
“included policy proposals and strategic discussions that
informed the agency’s process in deciding between administrative
options and adjusting technical assistance provided to
Congress.” Id. ¶ 20. In light of this detailed explanation, it
is clear that “Executive Branch decision-making about health
48
care reform was intertwined with congressional decision-making,”
Defs.’ Opp’n MSJ Objs., ECF No. 57 at 21; and that the
communications at issue were “part and parcel of the agency’s
deliberative process,” Dow Jones, 917 F.2d at 575. See also
Judicial Watch, 950 F. Supp. 2d at 219 n.4 (“The fact that both
agency and non- agency may have mutually ‘solicited’ each
other’s assistance . . . does not obscure the fact that agency
solicitation nevertheless occurred.”). This conclusion in no way
has the effect of “encompassing nearly all intergovernmental
communications as purportedly ‘intra-agency’ communications.”
MSJ R. & R., ECF No. 49 at 23. The legal standard is clear: only
communications that “are part and parcel of the agency’s
deliberative process . . . remain intra-agency documents” for
purposes of Exemption 5. Dow Jones, 917 F.2d at 575. Defendants
have satisfactorily met their burden of showing that here.
b. The Deliberative Process Privilege Prevents
Disclosure in This Case, Except for Factual
Information
The Exemption 5 deliberative process privilege exempts
certain intra-agency communications from being disclosed in
response to FOIA requests. The purpose of the deliberative
process privilege is to allow agency employees to “communicate
candidly among themselves,” which would be impossible in a
scenario where every agency interaction could be subject to
surveillance. Klamath, 532 U.S. at 9. There are two requirements
49
for the deliberative process privilege to apply: (1) the
document must be predecisional; and (2) the document must be
deliberative. McKinley, 647 F.3d 331 at 339 (quoting NIMJ, 512
F.3d at 680 n.4).
i. The Documents Are Predecisional
Documents are predecisional if they are generated for use
prior to a final agency decision on the matter. See Coastal
States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C.
Cir. 1980) (refusing to characterize documents as
“‘predecisional’ simply because they play into an ongoing audit
process”); 100Reporters LLC v. U.S. Department of Justice, 248
F. Supp. 3d 115, 151 (D.D.C. 2017)(“[A]n agency must show that
the document was ‘generated as part of a definable decision-
making process.’” (quoting Gold Anti- Trust Action Comm., Inc.
v. Bd. Of Governors of the Fed. Reserve Sys., 762 F. Supp. 2d
123, 135– 36 (D.D.C. 2011))). Documents can become subject to
disclosure “even if the document [was] predecisional at the time
it [was] prepared...if it is adopted, formally or informally, as
the agency position on an issue.” Coastal States, 617 F.2d at
866.
Magistrate Judge Robinson finds that the documents in
question are predecisional, because the “Vaughn Indexes drafted
by Defendants, along with the affidavits provided by the staff
members of HHS and OMB, provide sufficient information of a
50
definable decisionmaking process for the Court to ‘pinpoint an
agency decision or policy to which the document[s]
contributed.’” MSJ R. & R., ECF No. 49 at 20 (citing Paisley,
712 F.2d at 698). American Oversight objects that “the available
evidence reveals that many of the records instead relate to
Congress’s decisionmaking process.” Pl.’s MSJ Objs., ECF No. 51
at 25. Defendants respond that this argument “illustrates the
false dichotomy that American Oversight repeatedly has tried to
draw in this case: that an email must relate either to a
congressional decision or to an Executive Branch decision, never
both.” Defs.’ Opp’n MSJ Objs., ECF No. 57 at 24. The Court
agrees with Defendants. The Court has already discussed the
intertwined nature of congressional and Executive Branch
decision making. See supra. As Defendants point out, the Slemrod
declaration specifies four categories of OMB decisions about
health care reform at issue during the relevant period and
identifies the communications that contributed to those
decisions. Slemrod Decl., ECF No. 25-3 ¶¶ 8, 10, 11, 13, 16, 18;
see also, e.g., Suppl. Hitter Decl., Ex. 1 (“OMB Vaughn Index”)
at Doc. No. 13, ECF No. 34-1 (explaining that an “analysis of
draft health care legislative text provision-by-provision”
contributed to a decision as to “which health care proposals to
advocate for”). The Court concludes that Magistrate Judge
51
Robinson properly concluded the communications at issue are pre-
decisional.
ii. The Documents Are Deliberative
Documents are deliberative if they “reflect[] the give-and-
take of the consultative process.” Coastal States, 617 F.2d at
866 (explaining that this covers “recommendations, draft
documents, proposals, suggestions, and other subjective
documents which reflect the personal opinions of the writer
rather than the policy of the agency.”). The agency must
identify the specific deliberative process for which the
documents at issue were created. Coastal States, 617 F.2d at
868; see Paisley, 712 F.2d at 698 (stating that the court must
“be able to pinpoint an agency decision or policy to which [the]
documents contributed”); 100Reporters, 248 F. Supp. 3d at 152
(holding that documents submitted to DOJ for the purpose of
helping deliberate whether plaintiff had satisfied its
obligations under a plea agreement was insufficient
specificity).
Magistrate Judge Robinson finds that the “[s]tatements in
the affidavits suggesting a general deliberation on ‘potential
rulemaking and operational changes’ or the agencies’
‘legislative strategy’ are not specific enough to satisfy the
deliberative privilege standard.” MSJ R. & R., ECF No. 49 at 21.
Plaintiff objects to Magistrate Judge Robinson finding that any
52
of the documents are subject to the deliberative privilege
standard, arguing that the declarations: (1) are not adequately
specific; (2) fail to show the deliberative nature of the
information; and (3) fail to demonstrate that many of the
communications relate to internal agency deliberations at all,
rather than the manifestly congressional decisionmaking
necessary to the passage of legislation by Congress. Pl.’s MSJ
Objs., ECF No. 51 at 28. All three of these objections are
reviewed for clear error, since the first is not adequately
specific, and the latter two are repeated from Plaintiff’s
initial filing. See Pl.’s XMSJ, ECF No. 30 at 36-37. Plaintiff
also argues that “the Magistrate Judge’s recommendation fails to
clearly identify those records, if any, as to which the
Magistrate Judge believes HHS and OMB have described the role of
the redacted communications in agency deliberations with
sufficient detail to qualify for protection under the
deliberative process privilege.” MSJ R. & R., ECF No. 49 at 27.
Defendants respond that Magistrate Judge Robinson’s
conclusion “rests on a characterization of some of the redacted
emails that lacks important context provided in the agencies’
declarations.” Defs.’ Opp’n MSJ Objs., ECF No. 57 at 25.
Defendants reiterate their stance that the D.C. Circuit has
rejected a “black-and-white approach to deliberative
information,” and that the withheld documents are relevant to
53
both Congress’s drafting of legislation, as well as the
Executive Branch’s role in the policymaking process. Id. at 25-
26. Defendants add that “American Oversight overlooks that the
deliberative process privilege ‘serves to protect the
deliberative process itself, not merely documents containing
deliberative material.’” Id. at 26 (citing Mapother v. DOJ, 3
F.3d 1533, 1537 (D.C. Cir. 1993)). The Court agrees with
Defendants. As a threshold matter, the Court notes the validity
of several of Plaintiff’s objections regarding the lack of
specificity at various points in Magistrate Judge Robinson’s R.
& R. See, e.g., MSJ R. & R., ECF No. 49 at 20-21. Plaintiff
points out, for instance, that in the context of her discussion
of deliberative process privilege, Magistrate Judge Robinson
“describes the evidence put forth by the agencies, and then
offers a conditional conclusion” that does “nothing more than
describe the legal standard that an agency must meet.” Pl.’s MSJ
Objs., ECF No. 51 at 27-28. In the discussion below, the Court
specifies which information falls within the privilege and which
does not. As to Magistrate Judge Robinson’s conclusion that some
statements in the affidavits are not clear enough, the Court
finds clear error. Admittedly, some statements suggest
deliberation on “potential rulemaking and operational changes”
or the agencies’ legislative strategy. See Hitter Decl. Ex. 1 at
Doc. No. 1, ECF No. 25-2; Skrzycki Decl. ¶ 13. The Court finds
54
Formaldehyde, 889 F.2d at 1124-25 to be instructive here. In
Formaldehyde, an agency had submitted a draft report to a
medical journal for publication, and the D.C. Circuit held that
the comments of two outside referees on that report were
protected from disclosure by Exemption 5. 889 F.2d at 1120.
Although the comments of the outside referees were for their own
process in determining which articles to publish, the Court
found that “HHS personnel acting in light of the agency's
Congressional mandate must regularly rely on the comments of
expert scientists to help them evaluate the readiness of agency
work for publication.” Id. at 1125.
As Defendants argue, the same is true here. Discussion on
“potential rulemaking and operational changes,” as well as
“legislative strategy,” is “quintessentially deliberative when
an agency like OMB is ‘involved in the iterative process of
drafting legislation’ as part of its process for ‘provid[ing]
the President with analysis and recommendations’ concerning
whether to ultimately sign health care reform legislation.”
Defs.’ Opp’n MSJ Objs., ECF No. 57 at 26 (citing Slemrod Decl.,
ECF No. 25-3 ¶ 10); see also Competitive Enter. Inst. v. Office
of Sci. & Tech. Policy, 161 F. Supp. 3d 120, 128 (D.D.C. 2016)
(draft documents protected by deliberative process privilege).
These discussions, while aiding Congress in drafting
legislation, are also relevant to the Executive Branch’s own
55
decision making, including by informing their choices on “which
health care proposals to advocate for[.]” OMB Vaughn Index at
Doc. No. 13, ECF No. 34-1. A joint deliberative process does not
require that that “the interests of all of those entities were
aligned,” Pl.’s Reply MSJ Objs., ECF No. 59 at 16; nor is it
clear to the Court, contrary to Plaintiff’s assertion, that the
interests of all entities were aligned in Formaldehyde, since
the agency’s draft report still had to go through the journal’s
independent process. 889 F.2d at 1120. What is relevant for the
consultant corollary is the question of self-interest, which has
already been addressed supra. The Court concludes that the
redacted material is simply part of the “agency give-and-take of
the deliberative process.” Vaughn, 523 F.2d at 1144. 4 In
addition, the Court is cognizant that the deliberative process
privilege “serves to protect the deliberative process itself,
not merely documents containing deliberative material.” Mapother
v. DOJ, 3 F.3d 1533, 1537 (D.C. Cir. 1993) (citations omitted).
As in Formaldehyde, where the D.C. Circuit was concerned that
“release of reviewers' editorial comments would very likely have
a chilling effect on either the candor of potential reviewers of
4 In light of this finding, the Court finds as moot Defendants’
objection to the “Report and Recommendation’s suggestion that
the agencies’ affidavits and Vaughn indexes fail to sufficiently
identify a specific agency deliberative process for some of the
redacted communications.” Defs.’ MSJ Objs., ECF No. 52 at 6.
56
government-submitted articles or on the ability of the
government to have its work considered for review at all,” 889
F.2d at 1120; this Court is similarly concerned that disclosing
the materials would reveal details of agency deliberations and
impair the process of decision-making. See Slemrod Decl., ECF
No. 25-3 ¶ 23 (disclosure of withheld materials would “limit[]
the President’s ability to rely on” OMB’s advice).
The Court’s concern, and its finding as to deliberative
process privilege, does not, however, extend to factual
information within the redacted material described below.
Defendants argue that “factual information is protected by the
deliberative process privilege when it ‘is so inextricably
intertwined with the deliberative sections of documents that its
disclosure would inevitably reveal the government’s
deliberations.’” Defs.’ Opp’n MSJ Objs., ECF No. 57 at 21
(citing Abramyan v. DHS, 6 F. Supp. 3d 57, 64 (D.D.C. 2013)
(quoting CREW v. DHS, 514 F. Supp. 2d 36, 46 (D.D.C. 2007))).
While Defendants correctly identify the relevant standard, they
have not established that the facts in question are
“inextricably intertwined with the deliberative sections of
documents,” id.; and as Plaintiff points out, the unredacted
portions of the records suggest the opposite. See, e.g.,
Creighton Decl. Ex. 9 (OMB Excerpts) at OMB-American Oversight-
000678 (email chain regarding announcement that a Republican
57
member of Congress intended to vote against the bill); Arbes
Decl. ¶ 8(b) (“Congress and HHS shared up-to-date information
regarding legislative developments.”); Slemrod Decl. ¶ 10 (OMB
relied on communications “to receive information from Congress
that was used to advise the President about health care
reform”), ¶ 13 (“OMB solicited information from Congressional
personnel regarding the status of the AHCA throughout the
drafting and debate process”), ¶ 17 (“OMB must solicit from
Congress the most current information as to both the legislative
language and the intent behind it.”). While these documents may
have been used during deliberation, they “simply reveal nothing
deliberative in nature regarding the agency’s deliberations.”
Pl.’s Reply MSJ Objs., ECF No. 59 at 16. The Court concludes
that the deliberative process privilege does not apply to such
factual information. See Cause of Action Inst. v. DOJ, No. 17-
1423 (JEB), slip op. at 19 (D.D.C. Sept. 13, 2018) (rejecting
the privilege where the redacted communications “offer no
insight into the agency’s position or anything else that clearly
involves the formulation or exercise of . . . policy-oriented
judgment or the process by which policy is formulated”)
(citations and quotation marks omitted). Accordingly, Defendants
are ordered to release any redacted information that is factual
in nature, and not “inextricably intertwined with the
58
deliberative sections of documents.” CREW, 514 F. Supp. 2d at 46(citation omitted).
The Court concludes that Magistrate Judge Robinson did not
err in her analysis of the consultant corollary except for her
finding that some parts of the redacted documents did not
satisfy the deliberative process privilege. As the Court
clarified, only factual information is not protected by the
privilege. The Court hereby ADOPTS the portion of the R. & R.
addressing Exemption 5, except as to the deliberative process
privilege analysis, see MSJ R. & R., ECF No. 49 at 14-19; and
GRANTS Defendants’ Motion for Summary Judgment regarding the
applicability of the deliberative process privilege, see ECF No.
25; except as to factual information.
3. Defendants Inappropriately Redacted Meeting
Locations and Names of Attendees
American Oversight rightly points out that Magistrate Judge
Robinson’s R. & R. did not address its arguments as to certain
redactions included within the calendar entries produced by HHS
and OMB. Pl.’s XMSJ, ECF No. 30 at 28-30. The Court therefore
considers Plaintiffs arguments de novo. Specifically, Plaintiff
argues that “HHS improperly withheld talking points from
briefing materials prepared for HHS officials in advance of
meetings with members of Congress.” Id. at 37. Plaintiff also
contends that “OMB improperly redacted portions of the titles of
meetings on several calendar entries.” Id. at 38. Finally,
59
Plaintiff argues that “OMB improperly redacted meeting locations
and the names of attendees under Exemption 5.” Id. Defendants
respond that “briefing materials prepared in advance of meetings
or calls that HHS Secretary Price had with members of Congress
are subject to the deliberative process privilege.” Defs.’ MSJ
Reply, ECF No. 34 at 33. As to the redacted titles, Defendants
argue that they are subject to the deliberative process
privilege because they reveal details of agency deliberations
and could chill future government employees from engaging in
frank discussion. Id. at 34-35. Defendants add that OMB properly
redacted names of Congress members where “who attends the
meeting is itself a question of legislative strategy” and
“exposes the deliberative process of the President and / or his
advisors”. Id. at 35. The Court considers each of the three
challenges, and responses thereto, in turn. First, contrary to
Plaintiff’s assertion, HHS has plainly met its burden to
establish that the talking points were deliberative. As
Defendants point out, in both the cases American Oversight cites
on this point, the agency did nothing more than label a document
“[draft] talking points.” See Judicial Watch, Inc. v. U.S.
Postal Serv., 297 F. Supp. 2d 252, 265 (D.D.C. 2004); Elec.
Privacy Info. Ctr. [EPIC] v. DOJ, 511 F. Supp. 2d 56, 71 (D.D.C.
2007). Here, by contrast, HHS’s Vaughn Index plainly grounded
the briefing materials in its deliberative process. See Ex. 6
60
(HHS Vaughn Index), Bates No. HHS-July 2017-000002-000003, ECF
No. 25-4 at 39. However, the analysis does not end there. Even
if the records were pre-decisional and deliberative at the time
of their creation, if those materials were adopted as the agency
position or were, in fact, later used and therefore were shared
outside the agency, then the agency waived any privilege with
respect to them. See Judicial Watch, 297 F. Supp. 2d at 265–66.
This Court has specifically noted that the “likelihood of . . .
adoption is particularly high in the case of ‘talking points.’”
EPIC v. DOJ, 511 F. Supp. 2d 56, 71 (D.D.C. 2007). Here, HHS
states that there is “minimal risk that Secretary Price adopted
a public or agency-wide position in the course of a private
phone call with a member of Congress.” Defs.’ MSJ Reply, ECF No.
34 at 34. But as Plaintiff highlights, this statement does not
tell the Court whether the talking points were officially
adopted or not. See Pl.’s XMSJ Reply, ECF No. 37 at 21 n.9.
Second, as to the calendar entries, the Court is guided by
precedent that the deliberative process privilege “serves to
protect the deliberative process itself, not merely documents
containing deliberative material.” Mapother, 3 F.3d at 1537(citations omitted). The topic of discussion can itself disclose
sensitive issues, and contrary to Plaintiff’s argument, may
include recommendations or express opinions. But see Vaughn, 523
F.2d at 1144. To that end, as Defendants argue, where the titles
61
or body of a calendar entry would themselves disclose details of
agency deliberations, it could certainly “chill[] future
government employees from engaging in frank discussions,” Morley
v. CIA, 699 F. Supp. 2d 244, 256 (D.D.C. 2010) (emphasis
omitted), aff’d in part, vacated in part by 466 Fed. App’x 1
(D.C. Cir. 2012), both by discouraging meetings on sensitive
topics, or from describing those topics in any calendar entries
(and thereby preventing advance preparation). The Court
concludes that Defendants’ affidavits establish the
applicability of Exemption 5. Third, the Court is cognizant that
“even when the contents of meeting minutes are properly withheld
under Exemption 5, the basic information about the meeting,
including “the date and time of the meeting, the names of . . .
members present, and the names of observers” remains nonexempt
and, where reasonably segregable, must be released. Judicial
Watch v. Dep’t of the Treasury, 796 F. Supp. 2d 13, 29 (D.D.C.
2011) (emphasis added); cf. Judicial Watch v. Dep’t of State,
875 F. Supp. 2d 37, 45 (D.D.C. 2012). Defendants make a
compelling argument that revealing locations and names of
attendees “is a different matter if who attends the meeting is
itself a question of legislative strategy.” Defs.’ MSJ Reply,
ECF No. 34 at 35. However, absent any disclosure of the contents
of meetings, Defendants overreach in arguing that “revealing who
was at the meeting reveals opinions within the agency about
62
legislative strategy and thereby exposes the deliberative
process itself.” Id. (internal citation and quotation marks
omitted); see also Mem. Opinion at 1, 10–16, Property of the
People v. OMB, Civ. Act. No. 17-1677 (RC), ECF No. 20, (D.D.C.
Sept. 14, 2018) (finding that OMB could not rely on the
deliberative process privilege to redact the “names of meeting
attendees” and the “locations of meetings” contained in calendar
entries). Similarly, the Court is not persuaded that revealing
when or where “particular high-level figures in the Executive
Branch chose to wade into deliberations over health care reform
exposes the deliberative process of the President and/or his
advisors.” Id. Defendants attempt to distinguish this case on
the basis that “the analysis is different when the attendees
were ‘strategically selected’ in a manner that reveals
suggestions within the Executive Branch as to which stakeholders
were particularly important or persuadable in the health care
reform debate.” Defs.’ NSA Opp’n, ECF No. 61 at 3. But even if
American Oversight knows that “these meetings concerned the
administration’s deliberations regarding health care reform,”
id. at 2; the Defendants have not persuaded the Court that
revealing exactly who the invitees to the meetings were would
“expose an agency’s decisionmaking process in such a way as to
discourage candid discussion within the agency and thereby
undermine the agency’s ability to perform its functions.” Mem.
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Op., Property of the People v. OMB, No. 17-cv-1677, ECF No. 20
at 10-11 (quoting Dudman Commc’ns Corp. v. Dep’t of Air Force,
815 F.2d 1565, 1568 (D.C. Cir. 1987)).
The Court concludes that Defendants are required to
disclose the names of attendees and locations of meetings, and
GRANTS Plaintiff’s Motion for Summary Judgment regarding the
disclosure of such information, see ECF No. 30 at 37; except as
to calendar entry titles and talking points.
For the talking points at issue, Defendants are directed to
submit an additional affidavit clarifying with certainty whether
or not they were adopted as the agency’s position or were later
used and shared outside the agency, such that any associated
privilege was waived. See Judicial Watch, 297 F. Supp. 2d at265–66. 5
4. In Camera Review is Not Warranted
Courts have “‘broad discretion’ to decide whether in camera
review is necessary.” 100Reporters LLC, 248 F. Supp. 3d at 166;
see id. at 154 (stating that “the district court . . . has
5 Plaintiff objects to Magistrate Judge Robinson’s suggestion
that Plaintiff’s be given further opportunity to justify their
redactions. See Pl.’s MSJ Objs., ECF No. 51 at 29. Defendants
also object to the need for further affidavits, although for the
opposite reason: arguing that their present affidavits are
sufficient to establish “with the required specificity, the
applicable deliberative process for any of the redacted emails.”
See Defs.’ MSJ Objs., ECF No. 52 at 3. Neither of these
objections is relevant here, since the talking points were not
considered by Magistrate Judge Robinson.
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several options, including inspecting the documents in camera,
requesting further affidavits, or allowing the plaintiff
discovery” (quoting Spirko v. U.S. Postal Serv., 147 F.3d 992,
997 (D.C. Cir. 1998))). In camera review is available, but not
required, for a district court in its assessment of an agency’s
exemption claims pursuant to a FOIA request. See 5 U.S.C. §
552(a)(4)(B); Larson v. Dep’t of State, 565 F.3d 897, 869–70
(D.C. Cir. 2009). Courts review an agency’s decision to withhold
documents de novo, and the burden is placed on the agency to
demonstrate by affidavit the applicability of the exemption. See
§ 552(a)(4)(B); Hayden v. Nat’l Sec. Agency, 608 F.2d 1381, 1386
(D.C. Cir. 1979). Where: (1) the agency’s affidavits “provide
specific information sufficient to” establish the applicability
of the exemption, (2) the “information is not contradicted in
the record,” and (3) “there is no evidence of agency bad faith,
then summary judgment is appropriate without in camera review of
the documents.” Larson, 565 F.3d at 870 (quoting Hayden, 608
F.2d at 1387). Where the agency’s affidavits have satisfied the
burden of proof, “in camera review is neither necessary nor
appropriate.” Id. at 863, 870 (quoting Hayden, 608 F.2d at 1387)
(holding that the district court did not abuse its discretion by
declining to review in camera documents where the agency’s
affidavit described with “reasonably specific detail the reason
for non-disclosure”). Neither “mere allegation[s] of agency
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misrepresentation” nor “past agency misconduct in other
unrelated cases” undermine an agency’s affidavits. Hayden, 608
F.2d at 1387. Magistrate Judge Robinson finds that the agencies
have provided “reasonably detailed and uncontradicted evidence
sufficient to establish the applicability of Exemption 5 for
most of the documents” through their Vaughn Indexes and the
accompanying affidavits, and that in camera review is therefore
unnecessary, especially given the lack of evidence as to bad
faith. MSJ R. & R., ECF No. 49 at 24. Magistrate Judge Robinson
also recommends that this Court order Defendants to provide
additional declarations regarding the communications that were
used for congressional (as opposed to agency) purposes, or that
“lack the necessary specificity.” Id. at 24–25. Plaintiff
objects that “it is not clear from the R&R which particular
records the Magistrate Judge believes are in need of
supplemental detail.” Pl.’s MSJ Objs., ECF No. 51 at 51.
Plaintiff also reiterates its argument from its summary judgment
motion, arguing that “DOJ’s willingness to defend the facially
unreasonable redactions in [] [a different] case should at least
give this Court reason to probe further before accepting the
assertions made in this case without additional scrutiny.” Id.
Defendants respond that the Magistrate Judge has already
considered Defendants’ citation to a different case and
appropriately concluded that it has “no effect on this Court’s
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assessment of the request for in camera review of the redacted
documents.” Defs.’ Opp’n MSJ Objs., ECF No. 57 at 30. Defendants
add that additional affidavits are unnecessary given the detail
of the agencies’ existing submissions. Id. The Court agrees.
Plaintiff attempts to recast the Magistrate Judge’s
finding, stating that “Plaintiff does not claim that the
production in that case means that the agencies here necessarily
acted with similar bad faith.” Pl.’s MSJ Objs., ECF No. 51 at
51. However, by arguing that the Court should consider the
“DOJ’s willingness to defend the facially unreasonable
redactions in that case,” see id.; that is precisely what
American Oversight is doing, in clear contradiction of the
relevant standard, which states that “past agency misconduct in
other unrelated cases” does not undermine an agency’s
affidavits. Hayden, 608 F.2d at 1387. The Court finds no clear
error in Magistrate Judge Robinson’s finding and concludes in
camera review is unnecessary. The Court, however, sees no
reason for further affidavits (except as to the redacted talking
points for meetings) given its holdings supra. The Court
therefore DENIES Plaintiff’ Motion for Summary Judgment
regarding in camera review, see ECF No. 30 at 39.
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5. Further Discovery is Not Warranted
“Discovery in FOIA is rare and should be denied where an
agency’s declarations are reasonably detailed, submitted in good
faith and the court is satisfied that no factual dispute
remains.” Schrecker v. U.S. Dep’t of Justice, 217 F. Supp. 29,
35 (D.D.C. 2002) (citing Judicial Watch, Inc. v. U.S. Dep’t of
Justice, 185 F. Supp. 54, 65 (D.D.C. 2002)). The party
requesting discovery must submit an affidavit which must meet
the following conditions: “(1) It must outline the particular
facts [Plaintiff] intends to discover and describe why those
facts are necessary to the litigation…; (2) it must explain why
[Plaintiff] could not produce the facts in opposition to the
motion ...; and (3) it must show the information is in fact
discoverable.” United States ex rel. Folliard v. Gov’t
Acquisitions, Inc., 764 F.3d 19, 26 (D.C. Cir. 2014) (quoting
Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99–100 (D.C.
Cir. 2012)). Magistrate Judge Robinson concludes that the
agencies’ declarations were “largely sufficient,” and that
Plaintiff did not describe its need for discovery in sufficient
detail, and it is therefore appropriate to decide this case on
summary judgment without discovery. MSJ R. & R., ECF No. 49 at
26. American Oversight objects that there are ambiguities and
inconsistencies in the record evidence that preclude granting
summary judgment and render discovery necessary. Pl.’s MSJ
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Objs., ECF No. 51 at 52. The Court finds no clear error in
Magistrate Judge Robinson’s finding, since, as Defendants point
out, American Oversight’s affidavit is devoid of any explanation
as to why the facts it seeks “are necessary” to this litigation.
Defs.’ Opp’n MSJ Objs., ECF No. 57 at 31. American Oversight’s
request for discovery, see Pl.’s XMSJ, ECF No. 30 at 53; is
therefore DENIED.
IV. Conclusion
For the foregoing reasons, Magistrate Judge Robinson’s
R. & R. as to the Motion for Judgment on the Pleadings, see ECF
No. 48; is ADOPTED. In addition, Magistrate Judge Robinson’s
R. & R. as to the Motion for Summary Judgment, see ECF No. 49;
is ADOPTED IN PART and REJECTED IN PART. The portions of the
R. &. R that are rejected are: (1) Magistrate Judge Robinson’s
finding that some statements in the affidavits are not specific
enough to establish deliberative process privilege and
Magistrate Judge Robinson’s related recommendation that the
agency submit further affidavits, see R. & R., ECF No. 49 at 21;
and (2) the portions related to CWM’s Motion for Summary
Judgment, which the Court finds as moot. Plaintiff American
Oversight’s Motion for Judgment on the Pleadings, see ECF No.
45; is DENIED. Defendants HHS and OMB’s Motion for Summary
Judgment, see ECF No. 25; is GRANTED IN PART as to the adequacy
of its search and the validity of Exemption 5 for the records at
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issue but DENIED IN PART as to the factual information in the
documents, as well as the meeting attendee names and locations
associated with redacted calendar entries. Plaintiff American
Oversight’s Cross-Motion for Summary Judgment, see ECF No. 30;
is GRANTED IN PART as to the factual information and redacted
meeting locations and attendee names, and DENIED IN PART as to
the calendar entries covered by Exemption 5, as well as the
requests for in-camera review and discovery. The Motion is HELD
IN ABEYANCE as to the talking points for which supplemental
briefing has been ordered.
The parties shall submit, by no later than June 27, 2022, a
Joint Status Report regarding the status of the disclosures and
supplemental briefing ordered by this Court.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
May 27, 2022
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