Citizens for Responsibility and Ethics in Washington v. U.S. Department of the Army

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON,
Plaintiff,
No. 21-cv-2482 (DLF)
v.
U.S. DEPARTMENT OF THE ARMY et al,
Defendants.
MEMORANDUM OPINION
Citizens for Responsibility and Ethics in Washington (CREW) brings this case against the
U.S. Department of the Army and the South Dakota National Guard for failing to process CREW’s
request for documents under the Freedom of Information Act (FOIA). See generally Am. Compl.,
Dkt. 8. Before the Court are the defendants’ Motion for Summary Judgment, Dkt. 23, and
CREW’s Cross-Motion for Summary Judgment, Dkt. 24. For the reasons that follow, the Court
will grant CREW’s motion and deny the defendants’ motion.
I. BACKGROUND
A. Factual background and procedural history
On June 29, 2021, South Dakota Governor Kristi Noem announced that South Dakota
National Guard troops would be deployed to Texas to help secure the border between the United
States and Mexico. Pl.’s Stmt. of Undisputed Material Facts ¶ 1, Dkt. 24-3. According to Noem’s
press release, the deployment would be funded by private donation. Id.
CREW submitted two FOIA requests, one on July 6, 2021, and another on September 21,
2021, seeking information and various communications about the deployment and private
donation. Id. ¶ 6; Defs.’ Stmt. of Undisputed Material Facts ¶¶ 11, 19, 24, Dkt. 23-4. CREW filed
this suit on September 22, 2021, to compel the release of records responsive to those requests.
Pl.’s Stmt. of Undisputed Material Facts ¶ 7. Subsequently, the defendants released approximately
2,413 pages of responsive records. Id. ¶ 8.
The only remaining disputes concern the defendants’ withholding of two categories of
records under FOIA Exemption 5, which protects documents subject to the deliberative process
privilege.1 Id. ¶ 9; see 5 U.S.C. § 552(b)(5). First, it withheld discussions between the South
Dakota National Guard’s Adjutant General Jeffrey Marlette and state officials who were
formulating Governor Noem’s press release statements, as well as the draft statements themselves.
Pl.’s Stmt. of Undisputed Material Facts ¶ 9(1). Second, it withheld communications among state
officials, including the Adjutant General, relating to inquiries about the private donations. Id.
¶ 9(2). Both sides now move for summary judgment.
B. Relevant background of the National Guard
The National Guard “plays a dual role, operating under joint federal and state control.” In
re Sealed Case, 551 F.3d 1047, 1048 (D.C. Cir. 2009). This “dual federal-state status,” id. at 1049,
is guided by the Constitution’s grant of authority to Congress for “organizing, arming, and
disciplining[] the militia, and for governing such part of them as may be employed in the service
of the United States,” but “reserving to the states respectively, the appointment of the officers, and
the authority of training the militia according to the discipline prescribed by Congress,” id. at 1048
1
The defendants also identified a third category “in which a subordinate State official consulted
the Adjutant General concerning questions from a United States Senator’s office regarding [the]
deployment,” page eight of the Vaughn index. Wiggins Decl. ¶ 11(2), Dkt. 23-2. But the plaintiffs
do not appear to contest this withholding. See Pl.’s Stmt. of Undisputed Material Facts ¶ 9
(identifying only two disputed categories); Pl.’s Proposed Order, Dkt. 24-4 (requesting disclosure
of many pages from the Vaughn index, but not page eight). Thus, the Court will not address this
category.
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(quoting U.S. Const. art. I, § 8). Each of the fifty states thus has its own National Guard unit which
it is responsible for training and which the state governor may “command ‘to respond to local
emergencies.’” Id. (quoting Perpich v. Dep’t of Def., 496 U.S. 334, 351 (1990)). But “the Federal
Government provides virtually all of the funding, the materiel, and the leadership for the State
Guard units,” id. (quoting Perpich, 496 U.S. at 351), and may call the units into federal service
under the command of the Department of Defense, see id.Despite this “murky” hybrid status, the D.C. Circuit has held that “under the plain language
of the relevant statutes, the Privacy Act’s definition of agency”—which “adopts the [FOIA]’s
definition of agency”—“includes federally recognized National Guard units at all times.” Id. at
1049. Accordingly, the parties do not dispute that the South Dakota National Guard and its
adjutant general are subject to FOIA. See Defs.’ Mem. in Supp. of Summ. J. at 3–4, Dkt. 23-1.2
The only question is whether the defendants may withhold the adjutant general’s conversations
with state officials under FOIA Exemption 5.
II. LEGAL STANDARDS
Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When a federal
agency moves for summary judgment in a FOIA case, all facts and inferences must be viewed in
2
Although the defendants originally denied the plaintiff’s FOIA request on the basis that the South
Dakota National Guard was not acting in a federal capacity with respect to the matters addressed
in the relevant records and “was, therefore, not an agency subject to FOIA,” see Wiggins Decl.
¶ 6, the defendants appear to have abandoned that argument, see id. ¶¶ 6–7; Defs.’ Mem. at 5–6.
Because the defendants did not raise this argument in their motion for summary judgment, the
Court cannot consider it.
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the light most favorable to the requester, and the agency bears the burden of showing that it
complied with FOIA. Chambers v. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009).
To prevail under Rule 56, a federal agency “must prove that each document that falls within
the class requested either has been produced, is unidentifiable, or is wholly exempt from the
[FOIA’s] inspection requirements.” Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per
curiam) (quotation marks omitted). “The system of disclosure established by the FOIA is simple
in theory[:] [a] federal agency must disclose agency records unless they may be withheld pursuant
to one of the nine enumerated exemptions listed in [5 U.S.C.] § 552(b).” Dep’t of Just. v. Julian,
486 U.S. 1, 8 (1988). “The agency bears the burden of justifying the applicability of [any] FOIA
exemptions[.]” Mobley v. CIA, 806 F.3d 568, 580 (D.C. Cir. 2015).
Federal courts rely on agency affidavits to determine whether an agency complied with
FOIA. Perry, 684 F.2d. at 126. Agency affidavits are entitled to a presumption of good faith,
SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and a court may grant summary
judgment based on an affidavit if it contains reasonably specific detail and is not called into
question by contradictory record evidence or evidence of bad faith, Judicial Watch v. U.S. Secret
Serv., 726 F.3d 208, 215 (D.C. Cir. 2013). “[T]he vast majority of FOIA cases can be resolved on
summary judgment[.]” Brayton v. Off. of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).
III. ANALYSIS
Exemption 5 exempts 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). Exemption 5 “incorporates the traditional privileges that the
Government could assert in civil litigation against a private litigant,” including, as relevant here,
“the deliberative process privilege.” Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008)
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(quotation marks omitted). To invoke the deliberative process privilege, an agency must show two
things. First, “the communication must be ‘inter-agency or intra-agency.’” Dep’t of Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 9 (2001) (quoting 5 U.S.C. § 552(b)(5)).
Second, the information withheld must be both “predecisional” and “deliberative.” Loving, 550
F.3d at 38 (quotation marks omitted). As to the second requirement, there is no dispute about the
predecisional and deliberative nature of both categories of withheld documents. See Defs.’ Mem.
at 15, Pl.’s Mem. in Supp. of Cross-Mot. for Summ. J. at 7, Dkt. 24-1.
Even so, “the first condition of Exemption 5 is no less important than the second,” and
even concededly deliberative materials are protected only if the “communication [was] ‘inter-
agency or intra-agency.’” Klamath, 532 U.S. at 9 (quoting 5 U.S.C. § 552(b)(5)). “‘[A]gency’
means ‘each authority of the Government of the United States,’ and ‘includes any executive
department, military department, Government corporation, Government controlled corporation, or
other establishment in the executive branch of the Government, or any independent regulatory
agency.’” Id. (quoting first 5 U.S.C. § 551(1), then id. § 552(f) (alteration omitted)). Accordingly,
to fall under Exemption 5, the deliberations must occur between authorities or within an authority
of the federal government. Georgia v. Dep’t of Just., No. 1:21-cv-03138, 2023 WL 2116375, at
*3 (D.D.C. Feb. 20, 2023).
The defendants concede that the records in dispute are not “inter-agency.” Defs.’ Mem. at
8 n.1. As explained, a state National Guard is included in FOIA’s definition of “agency” because
it is “part of the military department of the Army.” In re Sealed Case, 551 F.3d at 1049. On the
other hand, “a state agency is generally not an agency for purposes of the FOIA.” People for the
Am. Way Found. v. Dep’t of Educ., 516 F. Supp. 2d 28, 36 (D.D.C. 2007). Because all of the
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withheld communications were between the Adjutant General of the South Dakota National Guard
(agency) and state officials (non-agency), they are not inter-agency.
The only contested question, then, is whether the records qualify as “intra-agency.” “[T]he
most natural meaning of the phrase ‘intra-agency memorandum’ is a memorandum that is
addressed both to and from employees of a single agency.” Klamath, 532 U.S. at 9 (citation
omitted). No party here suggests that the governor or her staff are employees, or otherwise a part,
of the National Guard as a federal agency. See Defs.’ Mem. at 8 n.1 (conceding that the governor
and her staff are non-agency state actors). Nonetheless, the defendants contend that the records
are exempt from disclosure because the “consultant corollary” exception to Exemption 5 applies.
Id. at 9. Under this exception, “records exchanged between an agency and outside consultants
qualify as ‘intra-agency’ for purposes of Exemption 5 if (1) the agency solicited the records from
the non-agency party or there exists ‘some indicia of a consultant relationship between the outsider
and the agency’ and (2) the records were ‘created for the purpose of aiding the agency’s
deliberative process.’” Judicial Watch, Inc. v. Dep’t of State, 306 F. Supp. 3d 97, 106–07 (D.D.C.
2018) (quoting first Nat’l Inst. of Mil. Just. v. Dep’t of Def., 512 F.3d 677, 686–87 (D.C. Cir.
2008), then Pub. Citizen v. Dep’t of Just., 111 F.3d 168, 170 (D.C. Cir. 1997) (emphasis in
original)).
Here, neither category of communications was “created for the purpose of aiding the
agency’s deliberative process.” Dow Jones & Co. v. Dep’t of Just., 917 F.2d 571, 575 (D.C. Cir.
1990) (emphasis in original). In each, the federal official’s advice was sought to inform state
officials’ decision-making. The first category, according to the Adjutant General, “reflect[ed] the
joint deliberations of State officials and [him] concerning the contents to recommend to the
Governor, who was the ultimate decisionmaker concerning the content of these statements.”
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Marlette Decl. ¶ 8, Dkt. 23-3 (emphasis added). With respect to the second category, the Adjutant
General was “included” into “discussions among State officials” about how they should “respon[d]
to inquiries” about the deployment, including inquiries about “the proper procedure for accepting
a private donation by the State of South Dakota, proper routing of such inquiries and which
office(s) would be responsible for follow up.” Id. ¶ 15. In both instances, state officials solicited
and received feedback on how they should talk about the deployment to the press, public, and other
inquirers. In other words, the Adjutant General was a participant in the state’s deliberative process.
The defendants have provided no support for extending the consultant corollary to cover
this “reverse relationship.” Nat’l Wildlife Fed’n v. U.S. Army Corps of Engineers, 596 F. Supp.
3d 130, 141 (D.D.C. 2022). To the contrary, “[n]one of [this Circuit’s] cases have extended”
Exemption 5 “to the protection of deliberations of a non-agency either as an interpretation of ‘intra-
agency’ or ‘inter-agency.’” Dow Jones, 917 F.2d at 575 (emphasis in original); see also Jud.
Watch, 306 F. Supp. 3d at 107–08 (“[T]he consultant corollary . . . does not apply when
deliberations concern a policy decision to be made by the outsider, not the agency.”). The one-
way nature of the consultant corollary—to cover communications in which an outsider aids the
agency, but not when the agency aids an outsider—makes sense given the purpose of Exemption
5. “The point is not to protect Government secrecy pure and simple”; the “object is to enhance the
quality of agency decisions by protecting open and frank discussion among those who make them
within the Government.” Klamath, 532 U.S. at 9 (emphasis added) (quotation marks omitted). As
a doctrine of executive privilege, “what matters is whether a document will expose the pre-
decisional and deliberative processes of the Executive Branch.” Jud. Watch v. Dep’t of Energy,
412 F.3d 125, 131 (D.C. Cir. 2005) (emphasis added).
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Although the defendants do not contest the consultant corollary’s limitation to
communications in aid of the agency’s decision-making, see Defs.’ Opp’n at 4, Dkt. 26, they argue
that the deliberations at issue reflect a joint venture requiring both federal and state decisions.
While there may be cases where “back-and-forth communications” between an agency and non-
agency are in aid of both entities’ decision-making, Am. Oversight v. Dep't of Treas., 474 F. Supp.
3d 251, 265 (D.D.C. 2020), the defendants offer no evidence that occurred here. Nor do the
defendants identify any federal decision that was at stake.
That the Adjutant General provided insight into “Federal policy and the applicable Federal
rules and regulations” to guide the state’s decision-making, Defs.’ Mem. at 12; see also Defs.’
Opp’n at 6–7, is not enough to satisfy the consultant corollary standard. Decisions about the
content of the governor’s statements, responses, and general communications strategy remained
the State’s. See Marlette Decl. ¶ 8 (explaining that the first category of “communications reflect
. . . input into . . . the contents to recommend to the Governor, who was the ultimate
decisionmaker[.]”); id. ¶ 17 (explaining that the second category of communications reflect “State
officials[’] . . . deliberative discussions” about “how to respond to issues raised in the inquiries
about a private donation to the State of South Dakota”). Even if the Adjutant General provided
input to “ensur[e]” the state decisions’ “compliance with the applicable federal laws, regulations
and procedures,” id., there is no indication that these communications “involve[d] more than
obviously unidirectional advice” from the agency to the state. Jud. Watch, 306 F. Supp. 3d at 113.
Furthermore, the necessity of the National Guard and the State working together does not
make their communications intra-agency. Certainly, exempting their conversations from
disclosure might make sense as a policy matter—but “policy concerns cannot trump the plain
language of the Freedom of Information Act or the underlying policy of the FOIA favoring public
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disclosure.” Ctr. for Int’l Env’t L. v. Off. of U.S. Trade Rep., 237 F. Supp. 2d 17, 30 (D.D.C. 2002)
(citing Klamath’s refusal to read an “Indian Trust” exemption into FOIA to protect federal-tribal
communications, 532 U.S. at 15–16). The clear text of Exemption 5 exempts only “inter-agency
or intra-agency memorandums” from disclosure. Klamath, 532 U.S. at 9 (emphasizing the
“apparent plainness of this text”). Because “neither the terms of the exemption nor the statutory
definitions say anything about communications with outsiders,” the consultant corollary already
stretches the statutory text. Id. Extending the consultant corollary even further to include any
collaborative enterprise would obliterate the “inter-agency or intra-agency” limitation from the
statute altogether.
For this reason, courts have repeatedly refused to classify federal-state communications as
“intra-agency” even when in aid of a dual federal-state partnership. For instance, another court in
this district explained that communications between the federal Department of Education and the
D.C. Mayor’s Office were not “intra-agency” under FOIA even though “their relationship was
created by a Congressional mandate” to “jointly oversee” the program at issue. People for the Am.
Way Found., 516 F. Supp. 2d at 36–39. Other courts have reached similar conclusions. See, e.g.,
Town of Waterford v. N.Y. State Dep’t of Env’t Conservation, 18 N.Y.3d 652, 658 (2012) (denying
“intra-agency” label to communications between the federal EPA and state agency under state
equivalent of FOIA, despite the two being in “a collaborative relationship” and “presumably
working together toward the same ameliorative goal”); Gen. Elec. Co. v. EPA, 18 F. Supp. 2d 138,
141–42 (D. Mass. 1998) (explaining that “communications sent from a federal to a state agency in
the course of a coordinated regulatory effort” may be withheld under Exemption 5 “[o]nly when
the state agency is, in effect, drawn into the deliberative process and consulted as to the outcome”
of federal decisions); cf. Ctr. for Int’l Env’t L., 237 F. Supp. 2d at 26, 31–40 (denying “intra-
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agency” label to bilateral trade negotiations with a foreign government despite the “co-regulatory
nature”). In sum, “there is simply no precedent for withholding documents under Exemption 5
where a federal agency and a non-federal entity share ultimate decision-making authority with
respect to a co-regulatory project.” People for the Am. Way Found., 516 F. Supp. 2d at 39.
Likewise, that state and federal officials are on the same team seeking a common goal is
not enough to exempt their communications from disclosure. Cf. Defs.’ Opp’n at 11–14. A mere
lack of adversity is a necessary but not a sufficient basis for the consultant corollary to apply. In
Klamath, the Supreme Court explained that the corollary only covers communications “between
Government agencies and outside consultants hired by them” to aid “in [the] agency’s process of
deliberation.” 532 U.S. at 10 (emphases added). And McKinley, the D.C. Circuit case on which
the defendants principally rely, confirms this conclusion. See Defs.’ Mem. at 10–11; Defs.’ Opp’n
at 5–6 (citing McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331 (D.C. Cir. 2011)).
McKinley, in applying the consultant corollary to discussions between the federal Board of the
Federal Reserve and state Reserve Banks, emphasized that “the Board and Reserve Banks
work[ed] together to assist in achieving . . . a common goal.” Id. at 336–37. Even so, the court
did not dispense with the requirement that the material be in aid of the federal agency’s deliberative
process. Id. at 338. Indeed, the court explicitly found that “the Board sought information from
the [state Reserve Bank]” “to aid in its deliberative process.3 Id. (emphases added).
The other cases the defendants cite, see Defs.’ Opp’n at 5–6, are not to the contrary. All
similarly found that the agencies withheld materials that aided the agencies’, as opposed to the
3
The Court need not address the parties’ dispute whether an agency must “solicit” advice it
receives to fall under the consultant corollary, see Defs.’ Mem. at 9–10; Pl.’s Mem. at 8–9; Defs.’
Opp’n at 7–10, because the Court finds that the National Guard, the federal agency, received no
advice at all.
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non-agencies’, decision-making. See Am. Oversight 474 F. Supp. 3d at 268 (“[T]he Court
concludes that the withheld records were created for the purpose of aiding the agency’s deliberative
process[.]” (quotation marks omitted)); Am. Oversight, Inc. v. HHS, No. 17-cv-827, 2022 WL
1719001, at *15 (D.D.C. May 27, 2022) (“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.” (quotation marks and alteration omitted) (emphasis in original)); Jud.
Watch, 306 F. Supp. 3d at 112 (“[T]he Court concludes that the records at issue in this case . . .
were created for the purpose of aiding the agency’s deliberative process.”). Neither McKinley nor
the other cases cited by the defendants support withholding communications where an agency
provides federal guidance and insight into a state decision, as the National Guard did here.
Despite the Court’s conclusion that the withheld records are not exempt from disclosure
under Exemption 5, the Court is sympathetic to the defendants’ concern that disclosure of the
records could hinder future discussions between the Adjutant General and state officials in pursuit
of a common goal. See Defs.’ Opp’n at 1–2. The Court further acknowledges that this ruling
produces an odd outcome considering that these discussions would be protected either under
Exemption 5 (if wholly federal) and under South Dakota law (if wholly state), see S.D. Codified
Laws § 1-27-1.9, and yet the very structure of the National Guard necessitates crossing federal-
state lines.4 But this decision is compelled by binding D.C. Circuit precedent. See In re Sealed
Case, 551 F.3d at 1049. As both parties appear to acknowledge, In re Sealed Case dictates that
4
Odder still, the South Dakota governor is the “commander-in-chief” of the National Guard and
appoints, commissions, and commands its officers, including the Adjutant General, when not in
federal service. S.D. Const. art. IV, § 3; U.S. Const. art. I, § 8; Ass’n of Civilian Technicians, Inc.
v. United States, 603 F.3d 989, 993 (D.C. Cir. 2010). For this reason, it would seem anomalous
that advice about state matters given to the commander-in-chief by her subordinate would be
subject to FOIA.
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the National Guard (and thus the Adjutant General) is a federal agency under FOIA “at all times,”
even “when not on active federal duty,” id. See Pl.’s Mem. at 2–3 n.1 (citing In re Sealed Case on
this point); Defs.’ Mem. at 4 (explaining that the Adjutant General is “federally recognized” and
is thus “a federal agency” (emphasis in original)); id. at 8 (acknowledging that the Adjutant
General counts as an agency under FOIA). And the state is not. See Defs.’ Mem. at 8 n.1.
Accordingly, communications between the Adjutant General and the state are not exempt from
disclosure under FOIA.
CONCLUSION
For the foregoing reasons, CREW’s motion for summary judgment is granted, and the
defendants’ motion for summary judgment is denied. A separate order consistent with this
decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
June 14, 2023
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