Protect the Public's Trust v. United States Department of Energy

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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PROTECT THE PUBLIC’S TRUST, )
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Plaintiff, )
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v. ) Civil Action No. 21-2486 (ABJ)
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UNITED STATES )
DEPARTMENT OF ENERGY, )
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Defendant. )
____________________________________)
MEMORANDUM OPINION
On May 12, 2021, plaintiff Protect the Public’s Trust, an unincorporated non-profit
association “concerned with maintaining integrity, ethics and responsibility in government,”
submitted a Freedom of Information Act (“FOIA”) request to the United States Department of
Energy (“DOE” or “Department”). Compl. [Dkt. # 1] ¶¶ 2, 6. It called for
[a]ll communications to, from or pertaining to Kelley Speakes-Backman,
including schedules, calendars, virtual meeting logs (e.g. Zoom, Teams, or
other platform[s] used by the Department), meeting invites, public
appearances, guidance or counseling provided by the DOE Ethics Office
pertaining to an ethics matter of Kelly Speakes-Backman.
Letter from Protect the Public’s Trust to Dep’t of Energy FOIA Officer, Ex. A to Compl. [Dkt. # 1-
1] (“FOIA Request”) at 1. Following a delay in the processing of its request, plaintiff filed a
complaint on September 23, 2021 seeking: a declaration that it is entitled to the records; an
injunction ordering DOE to produce the records and confer with plaintiff regarding any withheld
documents; and an injunction ordering DOE to pay reasonable attorney’s fees pursuant to 5 U.S.C.
§ 552(a)(4)(E). Compl. ¶¶ 17–28. DOE answered the complaint on November 19, 2021, see
Def.’s Answer [Dkt. # 6], and this Court commenced oversight of the Department’s review and
production of documents on November 22, 2021. See Order [Dkt. # 7].
DOE produced a series of documents through initial and supplemental responses from
January through July 2022. See Feb. 18, 2022 Status Report [Dkt. # 9] ¶ 3; Decl. of Alexander C.
Morris, FOIA Officer in the DOE Office of Public Information [Dkt. # 22-3] (“Morris Decl.”) ¶ 23.
However, the Department also withheld, either in full or in part, a number of documents on the
grounds that one or more FOIA exemptions applied: 2 pages were withheld under FOIA
Exemption 4, Decl. of Susan Beard, Deputy General Counsel for General Law in the DOE Office
of the General Counsel [Dkt #22-5] (“Beard Decl.”) ¶ 9; 35 pages were withheld in full and 106
pages in part pursuant to FOIA Exemption 5, Beard Decl. ¶ 16; and 36 pages were withheld in full
and 34 pages in part pursuant to FOIA Exemption 6, Beard Decl. ¶ 56. See also Def.’s Vaughn
Index [Dkt. # 22-6] (“Vaugh Index”).
At the conclusion of DOE’s production, plaintiff took the position that DOE’s “search and
productions” were plagued with “several issues.” Sept. 13, 2022 Status Report [Dkt. # 19] at 2.
On December 9, 2022, DOE filed a motion for summary judgement, along with a statement of
undisputed material facts, two sworn declarations, and a Vaugh index describing the withheld
documents and the agency’s justifications for withholding them. See Def.’s Mot. for Summ. J.
[Dkt. # 22] (“Mot.”); Def.’s Mem. of P. & A. in Supp. of Mot. for Summ. J. [Dkt. # 22-1]; Def.’s
Statement of Material Facts [Dkt. # 22-2] (“SOF”); Morris Decl.; Beard Decl.; Vaughn Index.
Plaintiff opposed the motion and filed a response to DOE’s statement of facts. See Pl.’s Opp. to
Mot. [Dkt. # 24] (“Opp.”); Pl.’s Resp. to SOF [Dkt. # 24-1] (“SOF Opp.”). DOE then filed a
reply, as well as an updated Vaughn index. See Reply in Further Supp. of Def.’s Mot. for Summ.
J. [Dkt. # 26] (“Reply”); Suppl. Vaughn Index, Ex. 1 to Reply [Dkt. # 26-1].
2
The Court has reviewed the parties’ pleadings, defendant’s statement of facts and plaintiff’s
objections thereto, defendant’s declarations, and the original and supplemental Vaughn indices
closely. In addition, on March 28, 2024 the Court called for in camera review of a small set of
disputed records, see Min. Order (Mar. 28, 2024), which it has reviewed. For the following reasons
the Court will GRANT the Department’s motion.
LEGAL STANDARD
Summary judgment is appropriate “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). The party seeking summary judgment “bears the initial responsibility 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). To defeat summary judgment, the non-moving party must
“designate specific facts showing that there is a genuine issue for trial.” Id. at 324.
The mere existence of a factual dispute is insufficient to preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a
reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable
of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236,
1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and draw
reasonable inferences ‘in the light most favorable to the party opposing the summary judgment
motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).
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When the court is presented with cross-motions for summary judgment, it analyzes the
underlying facts and inferences in each party’s motion in the light most favorable to the
non-moving party. See Anderson, 477 U.S. at 247.
ANALYSIS
The Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., compels government
agencies to release records upon request. See 5 U.S.C. § 552. The act also allows agencies to
withhold the requested records if they can demonstrate that the record falls into one of nine specific
exemptions. See id. § 552(b); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869
(D.C. Cir. 2010).
These exemptions are construed narrowly in keeping with FOIA’s presumption in favor of
disclosure, and the withholding agency bears the burden of showing that the claimed exemption
applies. Dep’t of Air Force v. Rose, 425 U.S. 352, 360–61 (1976); Loving v. Dep’t of Def.,
550 F.3d 32, 37 (D.C. Cir. 2008). “[W]hen an agency seeks to withhold information, it must
provide ‘a relatively detailed justification, specifically identifying the reasons why a particular
exemption is relevant.’” Morley v. CIA., 508 F.3d 1108, 1122 (D.C. Cir. 2007), quoting King v.
U.S. Dep’t of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987).
When summary judgment turns upon the applicability of an exemption, the court must
“ascertain whether the agency has sustained its burden of demonstrating that the documents
requested . . . are exempted from disclosure.” Assassination Archives & Research Ctr. v. CIA,
334 F.3d 55, 57 (D.C. Cir. 2003) (citations and international quotation marks omitted). Moreover,
pursuant to a 2016 amendment to the FOIA statute, an agency may withhold information pursuant
to an exemption only if it “reasonably foresees that disclosure would harm an interest protected
by” that exemption. 5 U.S.C. §552(a)(8)(A)(i)(I). This “reasonable foreseeability of harm”
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standard requires the withholding agency to provide “context or insight into the specific
decision-making processes or deliberations at issue, and how they in particular would be harmed
by disclosure” of the contested records. Jud. Watch, Inc. v. U.S. Dep’t of Just., No. CV 17-0832
(CKK), 2019 WL 4644029, at *5 (D.D.C. Sept. 24, 2019).
In a FOIA case, a court may grant summary judgment based on information provided in an
agency’s affidavits or declarations when they are “relatively detailed and non-conclusory.”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted). Federal
Rule of Civil Procedure 56(c) states that “an affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ.
P. 56(c)(4).
It is well established, though, that there are circumstances when an agency declaration may
properly include hearsay. The D.C. Circuit “long ago recognized the validity of the affidavit of an
individual who supervised a search for records even though the affiant has not conducted the search
himself” as sufficient for a declarant in a FOIA action. Brophy v. U.S. Dep’t of Def., No. CIV.A.
05-360(RMC), 2006 WL 571901, at *4 (D.D.C. Mar. 8, 2006), citing Meeropol v. Meese, 790 F.2d
942, 951 (D.C. Cir. 1986); see also Humane Soc’y of U.S. v. Animal & Plant Health Inspection
Serv., 386 F. Supp. 3d 34, 44 (D.D.C. 2019) (acknowledging that hearsay is permissible in
justifying the adequacy of the search); Barnard v. Dep’t of Homeland Sec., 531 F. Supp. 2d 131,
138 (D.D.C. 2008) (“Consistent with these requirements, hearsay in FOIA [search] declarations is
often permissible.”).
But courts have not always found hearsay to be sufficient when it is offered to justify
withholding records based on an exemption. See Londrigan v. FBI, 670 F.2d 1164, 1174–75
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(D.C. Cir. 1981) (district court’s grant of summary judgment reversed due to the affiant’s lack of
personal knowledge of the facts underlying the exemption and his reliance on hearsay); Jud.
Watch, Inc. v. U.S. Dep’t of Com., 224 F.R.D. 261, 264–65 (D.D.C. 2004) (court struck portions
of the agency FOIA Director’s declaration due to a lack of personal knowledge and impermissible
hearsay). As the court observed in Humane Society, “ultimately, it is the Court, not the agency,
that must be satisfied with the propriety of a claimed FOIA exemption.” Humane Soc’y of
U.S., 386 F. Supp. 3d at 44.
It is essential that agency affidavits be accurate. “[S]ummary judgment may be granted on
the basis of agency affidavits” in FOIA cases, when those affidavits “contain reasonable specificity
of detail rather than merely conclusory statements,” and when “they are not called into question
by contradictory evidence in the record or by evidence of agency bad faith.” Jud. Watch, Inc. v.
U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (internal quotation marks omitted), quoting
Consumer Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). As the D.C. Circuit
has emphasized, this Court should be able to depend on the accuracy of the submissions that are
intended “to permit adequate adversary testing of the agency’s claimed right to an exemption.”
Nat’l Treasury Emps. Union v. U.S. Customs Serv., 802 F.2d 525, 527 (D.C. Cir. 1986) (citations
omitted); see Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992) (“FOIA litigation is not
immune from our open, adversary process . . . . We expect agencies to ensure that their submissions
in FOIA cases are absolutely accurate.”), abrogated on other grounds by Milner v. Dep’t of Navy,
562 U.S. 562 (2011); see also Cause of Action Inst. v. Exp.-Imp. Bank of the U.S., 521 F. Supp. 3d
64, 90 (D.D.C. Feb. 23, 2021) (ordering disclosure of records when “[e]ven the briefest in camera
review reveals that [defendant’s] description is plainly overbroad and . . . seemingly inaccurate, as
their content has nothing to do with” the claimed exemption).
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When considering a motion for summary judgment under FOIA, the court must conduct a
de novo review of the record. See 5 U.S.C. § 552(a)(4)(B).
I. The agency’s search was adequate.
Plaintiff has not raised any issues in its opposition with respect to the adequacy of the
agency’s search, and defendant has satisfied its burden to come forward with evidence establishing
that adequate searches were conducted by submitting the declaration of Alexander C. Morris,
FOIA Officer in the Office of Public Information for Department of Energy Headquarters. See
Morris Decl. Morris sets forth facts sufficient to enable the Court to conclude that the agency
made the necessary good faith effort, and that it was reasonable to expect that the methods utilized
appropriately canvassed Department records for plaintiff’s requested information. Plaintiff has not
in any way refuted defendants' declarations. Accordingly, the Court concludes that the agency has
satisfied its FOIA obligations with respect to the adequacy of its search.
II. The withholding of documents was justified under FOIA Exemption 5.
Defendant withheld a number of responsive records in this case pursuant to FOIA
Exemption 5, which bars disclosure of “inter-agency or intra-agency memorandums or letters
which 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). A document may be properly withheld under Exemption 5 if it satisfies “two
conditions: its source must be a [g]overnment agency, and it must fall within the ambit of a
privilege against discovery under judicial standards that would govern litigation against the agency
that holds it.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001);
see also Formaldehyde Inst. v. Dep’t of Health & Hum. Servs., 889 F.2d 1118, 1121 (D.C. Cir.
1989), quoting Tax’n With Representation Fund v. IRS, 646 F.2d 666, 676 (D.C. Cir. 1981)
(Exemption 5 encompasses “the protections traditionally afforded certain documents pursuant to
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evidentiary privileges in the civil discovery context,” including “the executive ‘deliberative
process privilege.’”).
Here, the agency invoked the attorney work product privilege, the attorney-client privilege,
and the deliberative process privilege. Mot. at 10. All have been found to be incorporated in
Exemption 5. Loving, 550 F.3d at 37.
A. The Attorney Work Product Privilege
The attorney work product privilege “protects written materials lawyers prepare ‘in
anticipation of litigation,’” In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998), quoting Fed. R.
Civ. P. 26(b)(3), to include “factual materials prepared in anticipation of litigation,” “opinions,
legal theories, and the like.” Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997). Thus, it
affords “a working attorney . . . a ‘zone of privacy’ within which to think, plan, weigh facts and
evidence, candidly evaluate a client’s case, and prepare legal theories.” Coastal States Gas Corp.
v. Dep’t of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980).
Defendant has invoked FOIA Exemption 5 and the attorney work product privilege with
respect to six documents. 1 The withheld records are each described as a communication “among
attorneys within the Office of the General Counsel [that] discusses litigation strategy as it relates
to a matter currently being litigated,” which defendant identifies as Sierra Club v. Department of
Energy, No. 20-cv-382 (D. Me.). Suppl. Vaugh Index. According to the Department’s declarant,
these communications included “weekly updates on the status of matters in litigation and internal
discussion related to the litigation,” and they were “provided in order to aid the attorney[s] in
1 Bates Nos. 000197-98, 000218-19, 000227-28, 000230-31, 000247-48, 000262-63.
Defendant also invokes the deliberative process privilege with respect to each of these documents.
Suppl. Vaugh Index.
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responding to other matters that related to the subject of the litigation.” Beard Decl. ¶ 41. And
the documents included “attorneys’ legal strategies, reasoning and analysis related to the case and
were intended to information discussion of related matters.” Id. ¶ 42.
In its opposition, plaintiff found this justification inadequate for two reasons: that “neither
the Vaughn Index nor the declarations identif[ied] what litigation” the privilege was asserted to
protect, and that “DOE [ ] failed entirely to address whether the client has acted in a manner
consistent with maintaining the privilege or consistent with defeating it.” Opp. at 10. Both of
these concerns have been rendered moot by defendant’s supplemental submissions. The agency
identified the litigation to which the documents relate – even though it was not required to do so,
see Jud. Watch, Inc. v. U.S. Dep’t of Hous. and Urb. Dev., 20 F. Supp. 3d 247, 258 (D.D.C. 2014)
– and the Department’s FOIA Officer attests that “[a]ttorney work-product was maintained by the
Agency at all times” and information was “never shared outside of the Agency” and “only
communicated to agency employees.” Suppl. Decl. of Alexander C. Morris, Ex. 3 to Reply [Dkt.
# 26-3] (“Suppl. Morris Decl.”) ¶ 11.
Moreover, it is plaintiff, not the agency, that bears the burden of proving waiver. See Ashfar
v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983) (“[A] plaintiff asserting a claim of prior
disclosure must bear the initial burden of pointing to specific information in the public domain that
appears to duplicate that being withheld.”). Yet plaintiff has offered no basis to discredit the
Department’s representations, and Mr. Morris’s supplemental declaration must be accorded the
“presumption of good faith” that attaches to agency declarations in FOIA actions. SafeCard
Servs., Inc. v. SEC 926 F.2d 1197, 1200 (D.C. Cir. 1991). Therefore, the Court finds the emails to
be attorney work product and protected from disclosure under Exemption 5. This ends the matter
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because “if a document is fully protected as work product, segregability is not required.” Jud.
Watch, Inc. v. Dep’t of Just., 432 F.3d 366, 371 (D.C. Cir. 2005).
B. The Attorney-Client Privilege
Although Exemption 5 “does not itself create a government attorney-client privilege,” the
privilege
has a proper role to play in exemption five cases. . . . In order to ensure that a client receives
the best possible legal advice, based on a full and frank discussion with his attorney,
the attorney-client privilege assures him that confidential communications to his attorney
will not be disclosed without his consent. [There is] no reason why this same protection
should not be extended to an agency’s communications with its attorneys under exemption
five.
In re Lindsey, 158 F.3d 1263, 1269 (D.C. Cir. 1998), quoting Mead Data Cent., Inc. v. U.S. Dep’t
of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977).
The attorney-client privilege protects confidential communications from clients to their
attorneys made for the purpose of securing legal advice or services, and it “is not limited to
communications made in the context of litigation or even a specific dispute.” Coastal States, 617
F.2d at 862. The privilege also protects communications from attorneys to their clients that “rest
on confidential information obtained from the client” Tax Analysts, 117 F.3d at 618, quoting In
re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984). In the FOIA context, the agency is often the
“client,” and agency lawyers are the “attorneys” for purposes of the attorney-client privilege. See
In re Lindsey, 158 F.3d at 1269, citing Coastal States, 617 F.2d at 863
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Defendant has invoked the attorney-client privilege with respect to 26 documents. 2 These
documents can be separated into roughly three categories: “emails involv[ing] the communication
of legal conclusions and recommendations to the client from the attorney related to a letter received
from Protect the Public’s Trust”; emails containing “attorney advice on [ ] ethical question[s]
raised” regarding potential speaking engagements, meetings, events, and Speakes-Backman’s
service as a reference for a former colleague; communications concerning ethics questions related
to the financial contributions, conflicts of interest, and financial disclosures of Speakes-Backman
and her spouse. Suppl. Vaugh Index. Another document contains “a question from a junior
attorney to a senior attorney about how best to proceed” in a matter involving Speakes-Backman.
Id.Plaintiff objects to the Department’s assertion of the attorney-client privilege insofar as
“DOE cannot simultaneously claim that its in-house attorneys represent the DOE and represent
employees of DOE against whom DOE must enforce ethical obligations and regulations.” 3 Opp.
at 10. According to plaintiff, “[t]he client of DOE in-house attorneys is necessarily the Department
itself; DOE represents its own employees only insofar as the employees are acting on behalf of the
government. An employee acting under a conflict of interest is inherently not working on behalf
2 Bates Nos. 000006-7, 000008-22, 000035-36, 000037, 000048, 000049-51, 000052-55,
000062, 000063-64, 000107-12, 000113-35, 000137, 000138, 000144, 000162-66, 000171, 000175-
77, 000274-76, 000289, 000290-94, 000298-301, 000303, 000322-24, 000326-27, 000331-38,
000359. Defendant additionally invokes the deliberative process privilege with respect to each of these
documents. Suppl. Vaugh Index.
3 Plaintiff does not appear to object to the redaction of information related to the agency’s
response to plaintiff’s FOIA request. See Opp. The Court will accordingly treat defendant’s
withholding of information in those documents as concededly appropriate.
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of the government, and an employee seeking advice related to interests personal to the employee
is not seeking advice on behalf of the Department.” Id. at 13.
Plaintiff’s argument appears to put the cart before the horse. Plaintiff simply posits that
Speakes-Backman is working under a conflict of interest and that, therefore, her interests cannot
be aligned with the agency’s for purposes of the attorney-client privilege. There is no evidence in
the record that supports this assumption, and the Court cannot base its ruling on speculation.
Defendant’s supplemental Vaughn index and the sworn declaration from DOE Deputy General
Counsel Susan Beard make clear that the requested documents detail communications related to
Ethics in Government Act compliance, specifically legal advice from agency attorneys to Speakes-
Backman regarding her completion of the Office of Government Ethics (“OGE”) Form 278e
Financial Disclosure Report. See Beard Decl. ¶¶ 22–26. As Ms. Beard attests, these
communications are part of the process the agency has put in place to comply with the Ethics in
Government Act, and it can include multiple rounds of interviews and frank personal discussions
all designed to not just “identify” but also “avoid potential conflicts of interest.” Id. ¶ 26.
While the communications undoubtedly involve personal information related to Speakes-
Backman and her family, that does not mean that the attorneys’ work in advising her about her
ethical obligations falls outside of the agency lawyers’ attorney-client privilege. The agency
official was not the client. The lawyers were not retained by Speakes-Backman, and she is not the
one asserting the privilege. The agency’s declaration explains how ensuring employees’
compliance with disclosure obligations enables agency lawyers to fulfill their duty to the agency
to monitor and avoid potential conflicts of interest on the part of high-ranking officials. The advice
was rendered to Speakes-Backman in her official capacity as an agency official, and in that
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capacity, she was entitled to their full and frank advice, just as she would have been if they were
providing advice about a program or initiative she was considering.
In the absence of any contrary evidence or showing of bad faith, the Court is bound to
accept the agency’s declaration. The Court therefore finds that documents and communications
between Speakes-Backman and agency attorneys during the conflicts screening process were
appropriately withheld under FOIA Exemption 5.
C. The Deliberative Process Privilege
The deliberative process privilege “allows the government to withhold documents and
other materials that would reveal advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated.” In re
Sealed Case (Espy), 121 F.3d 729, 736–37 (D.C. Cir. 1997) (citations and internal quotation marks
omitted). The Supreme Court explained that it “rests on the obvious realization that officials will
not communicate candidly among themselves if each remark is a potential item of discovery,” and
its purpose “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 8–9, quoting NLRB
v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).
To accomplish that goal, “[t]he deliberative process privilege protects agency documents
that are both predecisional and deliberative.” Jud. Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C.
Cir. 2006) (internal quotation marks omitted), citing Coastal States, 617 F.2d at 866.
“[A] document is predecisional if it was generated before the adoption of an agency policy and
deliberative if ‘it reflects the give-and-take of the consultative process.’” Judicial Watch, Inc., 449
F.3d at 151, quoting Coastal States, 617 F.2d at 866. In other words, a “’predecisional’ document
is one ‘prepared in order to assist an agency decisionmaker in arriving at his decision.’”
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Formaldehyde Inst., 889 F.2d at 1122, quoting Renegotiation Bd. v. Grumman Aircraft Eng’g
Corp., 421 U.S. 168, 184 (1975).
The agency has the burden of establishing what deliberative process is
involved, and the role played by the documents in issue in the course of that
process. . . . [I]f documents are not a part of a clear “process” leading to a
final decision on the issue . . . they are less likely to be properly
characterized as predecisional[.]
Coastal States, 617 F.2d at 868, citing Vaughn v. Rosen, 523 F.2d 1136, 1146 (D.C. Cir. 1975). 4
Chronology is not the beginning and end of the inquiry, though; in Judicial Watch, Inc. v.
FDA, the Court of Appeals recognized that “documents dated after [the decision at issue] may still
be predecisional and deliberative with respect to other, nonfinal agency
policies[.] . . . A contrary rule would undermine the privilege’s purpose to encourage ‘honest and
frank communication within the agency’ without fear of public disclosure.” 449 F.3d at 151–52,
quoting Coastal States, 617 F.2d at 866; see also Mead Data Cent., Inc., 566 F.2d at 256 (“[T]he
quality of administrative decision-making would be seriously undermined if agencies were forced
to ‘operate in a fishbowl’ because the full and frank exchange of ideas on legal or policy matters
would be impossible.”). But the opinion emphasized that the agency must supply sufficient
information to enable a court to determine whether a communication after a policy was decided
was in furtherance of a subsequent agency action: “It may be that reflections on an already-decided
policy are neither predecisional nor indicative of the deliberative process of the government. After
all, ‘Exemption five is intended to protect the deliberative process of government and not just
deliberative material.’” Jud. Watch, Inc., 449 F.3d at 151, quoting Mead Data Cent., Inc., 566
4 See also Coastal States, 617 F.2d at 868 (“Characterizing [] documents as ‘predecisional’
simply because they play into an ongoing audit process would be a serious warping of the meaning
of the word. No ‘decision’ is being made or ‘policy’ being considered[.] . . .”).
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F.2d at 256. In sum, one can only decide whether a document generated after an agency decision
has been made is deliberative with respect to another decision on a case-by-case basis.
With respect to the “deliberative” prong of the test – the second prong – “the exemption
protects not only communications which are themselves deliberative in nature, but all
communications which, if revealed, would expose to public view the deliberative process of an
agency.” Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982), citing Montrose
Chem. Corp. of Cal. v. Train, 491 F.2d 63, 66 (D.C. Cir. 1974). But the agency “cannot simply
rely on ‘generalized’ assertions that disclosure ‘could’ chill deliberations.” Machado Amadis v.
U.S. Dep’t of State, 971 F.3d 364, 371 (D.C. Cir. 2020) (citation omitted).
As the D.C. Circuit explained in the Espy case:
Both requirements stem from the privilege’s “ultimate purpose[, which] . . .
is to prevent injury to the quality of agency decisions” by allowing
government officials freedom to debate alternative approaches in private.
The deliberative process privilege does not shield documents that simply
state or explain a decision the government has already made or protect
material that is purely factual, unless the material is so inextricably
intertwined with the deliberative sections of documents that its disclosure
would inevitably reveal the government’s deliberations.
Espy, 121 F.3d at 737 (citations omitted).
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In addition to those documents for which defendant has invoked Exemption 5 on other
grounds, 5 defendant invoked the deliberative process privilege with respect to 28 documents. 6 The
documents contain the following information:
• Communications between attorneys within the Office of the General Counsel and
others discussing Department’s response to a letter from Congress, culminating in
a September 13, 2021 letter from Deputy General counsel Eric Fygi to the
Committee on Oversight and Government Reform’s Subcommittee on
Environment. See Suppl. Vaughn Index at 1, 9, 10, 29–31 (Bates Nos. 000001-5,
000066-67, 000074, 000079-84, 85, 000086-90, 000239-40, 000241, 000242-46;
• Communications between attorneys with the Office of the General Counsel
regarding “matters requiring legal attention and action,” undertaken in furtherance
of the Department’s September 13, 2021 letter from Deputy General counsel Eric
Fygi to the Committee on Oversight and Government Reform’s Subcommittee on
Environment. See Suppl. Vaughn Index at 9, 22, 23–24, 25, 26, 27 (Bates Nos.
000068-73, 000180-81, 000185-86, 000190-91, 000192-93, 000203-05, 000213-
14, 000224-26);
• Communications between DOE employees regarding potential speaking
engagements, including agency-related announcements an employee might make
at those speaking engagements. See Suppl. Vaugh Index at 12, 13, 18–19 (Bates
Nos. 000096-97, 000102-03, 000146-48, 000149-50, 000151-57);
• Communications regarding “program direction and a conflict of interest.” See
Suppl. Vaugh Index at 15 (Bates No. 000136);
• Communications discussing “legal advice received regarding a letter from Rep.
Ralph Norman.” See Suppl. Vaughn Index at 32–33 (Bates Nos. 000252-53);
• Communications between the General Counsel and National Security Council
related to the September 13, 2021 letter from Deputy General counsel Eric Fygi to
5 Supra nn. 1, 2.
6 Bates Nos. 000001-5, 000066-67, 000068-73, 000074, 000079-84, 000085, 000086-90,
000096-97, 000102-03, 000136, 000146-48, 000149-50, 000151-57, 000180-81, 000185-86,
000190-91, 000192-93, 000203-05, 000213-14, 000224-26, 000239-40, 000241, 000242-46,
000252-53, 000265, 000271-73, 00095-96, and 000307. Defendant also invokes Exemption 4
with respect to Bates Nos. 000271-73 and Exemption 6 with respect to Bates Nos. 000146-48,
000151-57, 000252-53, 000271-73, and 000295-96 within this group.
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the Committee on Oversight and Government Reform’s Subcommittee on
Environment. See Suppl. Vaughn Index at 33–34 (Bates No. 000265);
• Communications about “a news article and whether action is required” in response
to the article, detailing “analysis and advice” on the matter. Suppl. Vaughn Index
at 34–35 (Bates Nos. 000271-73); 7
• Communications concerning Ms. Speakes-Backman and other DOE employees
regarding ethics reporting, including “the status and [sic] outstanding matters
related to ethics inquiries regarding” the employees. Suppl. Vaughn Index at 38
(Bates Nos. 000295-96); and
• A communication regarding the agency’s response to plaintiff’s letter concerning
its FOIA request. See Suppl. Vaugnh Index at 41 (Bates No. 000307).
According to the agency, the records “are pre-decisional communications circulated during
the back-and forth, internal analysis and recommendation process within the agency that assisted
Speakes-Backman with filing her Financial Disclosure Report and responding to engagement
requests from third parties, as well as assisted DOE in responding to letters from outside parties.”
Beard Decl. ¶ 20.
Plaintiff contested the invocation of the deliberative process privilege with respect to these
documents. It argued in its Opposition:
DOE has not shown (and cannot show) that the deliberative process
privilege applies to every word or every withholding at issue. DOE has not
pointed to any agency “decision” that was being contemplated or that was
thereafter made, and it appears that in some cases no “superior and
subordinate” relationship can possibly have existed, or that to the extent
such a relationship may have existed, the nature of the communications at
issue were in the nature of instructions rather than discussion.
Opp. at 8.
7 Defendant also invokes Exemption 4 with respect to this document, arguing that it amounts
to confidential commercial information given its publication in a manner “not publicly accessible”
because it “required a subscription.” Suppl. Vaughn Index at 34.
17
As an initial matter, the Court notes that many of factors listed lack the significance plaintiff
accords them. Agencies need not identify a formal or final agency decision in order to properly
invoke the deliberative process privilege, see Sears, 421 U.S. at 151 n.18. Nor must a document
necessarily flow from a subordinate to a superior to gain protection from disclosure; courts instead
“look[] beneath formal lines of authority to the reality of the decisionmaking process in question”
to determine whether Exemption 5 applies. Schlefer v. U.S., 702 F.2d 233, 238 (D.C. Cir. 1983).
Also, it is not particularly problematical that the agency’s Vaughn indices “contain[] verbatim or
boilerplate entries relating to the purported deliberations at issue.” Opp. at 8. As the D.C. Circuit
has recognized, “[t]here are only so many ways the [agency] could have claimed Exemptions,”
and that “[a]s long as it links the statutory language to the withheld documents, the agency may
even ‘parrot [ ]’ the language of the statute.” Jud. Watch, Inc., 449 F.3d at 147, quoting Landmark
Legal Found. v. IRS, 267 F.3d 1132, 1138 (D.C. Cir. 2001).
Defendant has nevertheless supplemented its Vaugh index to incorporate additional pieces
of information that plaintiff faults the agency for not incorporating initially, and the Court is
satisfied that the documents within each of the categories described above were properly withheld
or redacted pursuant to Exemption 5. For each document, defendant identifies the relevant actors,
the dates on which the documents were generated, and a final decision to which the documents
relate, if any. And these decisions are the type of agency judgments that the deliberative process
privilege may protect: how best to respond to inquiries from Congress, see Brennan Ctr. for Just.
at New York Univ. Sch. of L. v. U.S. Dep't of Just., 613 F. Supp. 3d 387, 400 (D.D.C. 2020);
decisions concerning where officials will speak and what they will say – with the agency’s
imprimatur – to advance the agency’s goals, see ICM Registry, LLC v. U.S. Dep't of Com., 538 F.
Supp. 2d 130, 136 (D.D.C. 2008) (“[D]eliberations regarding public relations policy are
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deliberations about policy, even if they involve ‘massaging’ the agency's public image.”); and how
to navigate ethics requirements while at the same time pursuing the agency’s programmatic
interests. See Jud. Watch, Inc. v. U.S. Dep’t of State, 306 F. Supp. 3d 97, 114 (D.D.C. 2018)
(holding that letter detailing “ethics undertakings” of executive branch nominee was “deliberative
because it served as ‘a direct part’ of the collaborative process of assessing how a prospective
agency head should manage potential conflicts of interest”). Because permitting plaintiff to obtain
this information would chill these activities in the future and cause foreseeable harm to the agency,
the Court finds that documents and communications were appropriately withheld under FOIA
Exemption 5.
III. The withholding of documents was justified under FOIA Exemption 6.
Exemption 6 allows agencies to withhold “personnel and medical files and similar
files” when disclosure “would constitute a clearly unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(6). The purpose of Exemption 6 is “to protect individuals from the injury and
embarrassment that can result from the unnecessary disclosure of personal information.” U.S.
Dep't of State v. Wash. Post Co., 456 U.S. 595, 599 (1982). “The Supreme Court has made clear
that Exemption 6 is designed to protect personal information in public records, even if it is not
embarrassing or of an intimate nature.” Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d
873, 875 (D.C. Cir. 1989).
To determine whether disclosure would constitute a clearly unwarranted invasion of
personal privacy, courts employ a two-step test. First, a court should ask “whether disclosure
would compromise a substantial, as opposed to a de minimis, privacy interest?” Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 33 (D.C. Cir. 2002) (citation and internal quotation marks
omitted), quoting Horner, 879 F.2d at 874. If so, the court must next “weigh that interest against
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the public interest in the release of the records in order to determine whether, on balance, disclosure
would [cause] a clearly unwarranted invasion of personal privacy.” Id. (internal quotation marks
omitted). “[T]he only relevant public interest in disclosure to be weighed in this balance is the
extent to which disclosure would serve the core purpose of the FOIA, which is contributing
significantly to public understanding of the operations or activities of the government.” Am.
Immigr. Laws. Ass’n v. Exec. Off. for Immigr. Rev., 830 F.3d 667, 674 (D.C. Cir. 2016) (internal
quotation marks omitted), quoting U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 495
(1994).
Defendant invokes Exemption 6 alone with respect to seven documents. 8 According to the
government’s supplemental Vaughn Index, the information contained in the requested documents
includes: “an employee’s time off schedule,” Suppl. Vaughn Index at 34 (Bates No. 000269);
personal phone numbers and Venmo account information, id. at 36, 43–44 (Bates Nos. 000280,
000282, 000328, 000345); and two documents that each contain “a statement regarding a non-
public conflict of interest clearance related to the appointment process.” Id. at 40–41 (Bates Nos.
000304, 000306). In its opposition, plaintiff does not appear to take issue with redactions related
to employee schedules, phone numbers, or Venmo account information, but it questions the
redaction of information related to conflicts of interest. See Opp. at 13–15. Plaintiff hinges its
arguments on an opinion from another court in this district, Citizens for Responsibility & Ethics v.
United States Postal Service., 557 F. Supp. 3d 145 (D.D.C. 2021) (“CREW”).
8 Bates Nos. 000269, 000280, 000282, 000304, 000306, 000328, and 000345.
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In CREW, the plaintiff sought information related to then-Postmaster General Louis
DeJoy's financial holdings and conflict-of-interest obligations as they related to his role within the
government. Id. 149–50. The United States Postal Service (“USPS”) sought to shield records in
its possession by invoking FOIA Exemption 6, and it argued that the withheld “documents
contain[ed] financial information about the Postmaster General, which is clearly a type of personal
information in which he has a privacy interest.” Id. at 158 (citation and internal quotation marks
omitted). The Court rejected the agency’s reliance on Exemption 6, finding first that the
information was no longer private since all DeJoy’s financial information was already available
through public filings with the Office of Government Ethics. Id. The Court then found that various
reports on and investigations of DeJoy’s alleged conflicts warranted permitting “the public to
decide for itself whether government action” on DeJoy’s watch “was proper.” Id. at 158–59.
CREW is not on all fours with the present case. According to the government’s declarant,
the withheld information concerning Speakes-Backman “involves non-public personal and private
information, that has nothing to do with her normal work duties.” Beard Decl. ¶ 58. Moreover,
the agency avers that “[p]roviding this information would reveal little to nothing about the
Agency’s conduct,” and release would “readily implicate[] an individual’s privacy interest in
controlling information concerning her person which is not freely available.” Id.The Court has reviewed the materials in camera to assess the first question in the analysis:
whether the privacy interest involved in documents 000304 and 000306 is substantial or de
minimis. As described in the government’s Vaughn index, the information contained in the
documents relates to the conflicts of interest clearance process for appointments. Although an
individual’s privacy interest in keeping the information contained in the emails away from the
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public eye is not necessarily substantial, neither is it de minimis, and it must be weighted against
the public interest in disclosure, which in this circumstance, is minimal.
The Supreme Court has emphasized that the “purpose [of FOIA] . . . is not fostered by
disclosure of information about private citizens that is accumulated in various governmental files
but that reveals little or nothing about an agency’s own conduct.” U.S. Dep’t of Just. v. Reps.
Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (holding that disclosure of the contents
of an individual’s rap sheet “would not shed any light on the conduct of any [g]overnment agency
or official”). Although the government came into the possession of personal information about
Speakes-Backman while she was fulfilling a governmental role, it cannot be said that the public
has an interest in information unrelated to that role. Because, after reviewing the materials in
camera, the Court finds that the redacted personal information would do nothing to assist the public
in assessing what the agency “was up to,” or how the agency – or this official acting on its behalf
– were carrying out their duties, redaction of the information was proper. See Lepelletier v.
FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999) (citation and internal quotations mark omitted).
IV. Segregability
“Before approving the application of a FOIA exemption, the district court must make
specific findings of segregability regarding the documents to be withheld.” Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (collecting cases). An agency must release
“[a]ny reasonably segregable portion of a record,” 5 U.S.C. § 552(b), unless the non-exempt
portions are “inextricably intertwined with exempt portions” of the record. Mead Data Cent., 566
F.2d at 260; see also Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002). “In
order to demonstrate that all reasonably segregable material has been released, the agency must
provide a ‘detailed justification’ for its non-segregability,” although “the agency is not required to
22
provide so much detail that the exempt material would effectively be disclosed.” Johnson, 310
F.3d at 776, citing Mead Data Cent., Inc., 566 F.2d at 261.
Just as with the exemption analysis, “[a]gencies are entitled to a presumption that they
complied with the obligation to disclose reasonably segregable material,” Sussman, 494 F.3d at
1117, citing Boyd v. Crim. Div. of U.S. Dep’t of Just., 475 F.3d 381, 391 (D.C. Cir. 2007), and “[a]
court may rely on government affidavits that show with reasonable specificity why documents
withheld pursuant to a valid exemption cannot be further segregated.” Juarez v. U.S. Dep’t of
Just., 518 F.3d 54, 61 (D.C. Cir. 2008), citing Armstrong v. Exec. Off. of the President, 97 F.3d
575, 578 (D.C. Cir. 1996). A district court must make an express finding on segregability. Juarez,
518 F.3d at 60, citing Morley, 508 F.3d at 1123.
The Department has provided a comprehensive, 45-page supplemental Vaughn index,
which describes each document withheld and the exemption under which it was withheld. See
generally Suppl. Vaughn index. In addition, the Department’s declarants aver that the agency
“conducted a document-by-document and line-by-line review of each [responsive] document such
that every effort was made to provide Plaintiff with all reasonably segregable, non-exempt
records,” and that “[n]o reasonably segregable, non-exempt portions of responsive records have
been withheld.” Morris. Decl. ¶ 26; see also Beard Decl. ¶¶ 63–64 (“I conducted a detailed, line-
by-line review of the responsive records in order to satisfy the Agency’s reasonable segregability
obligations. As to the pages withheld under Exemptions 5 and 6, I determined that additional
information could be segregated and released. Additional information was released to Plaintiff on
December 1, 2022.”).
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Plaintiff argues that the agency failed to meet its segregability obligations because certain
documents, such as Bates Nos. 000035–36, 000049–51, 000086–90, 000113–35, 000136, and
000137, were withheld in full. Opp. at 16. According to plaintiff,
This Court can take judicial notice that email chains inherently contain purely factual
information, the most obvious being the date the email was sent. Further, factual
information in the email or email chain is often necessary in order to assess the existence
of the purported privilege. For example, because an email inherently contains a sender and
a recipient, disclosure of the identity of those individuals allows a requester to assess
whether one of the individuals is a client and another is an attorney. Similarly, the subject
line of an email enables a requester (and this Court) to assess whether an email was
regarding legal advice, or was instead related to policy or even to quotidian and mundane
topics such as an IT issue or a broken coffee machine.
Id.Defendant contests this assertion. According to the agency, “Bates Nos. 35–36, 86–90,
113–135, 136, and 137 were withheld in part, not full. The only information withheld in full in
Bates Nos. 49–51 is a financial institution statement detailing investments, account activity and
account information.” Reply at 13 (citing Suppl. Vaughn Index). The agency additionally states
that it did not redact information such as “the sender, recipient, and subject fields” of emails
“except for a limited number of records in which the information that followed the header field
was redacted and marked as subject to Exemption 5 and/or 6.” Id. at 14; see also Suppl. Morris
Decl. ¶ 12 (describing the agency’s segregability review for email metadata headers). The Court
called for the submission of these documents for in camera review given this dispute, and it has
confirmed that the agency’s characterization is correct.
Considering all of the segregation determinations in combination with defendant’s
declaration, the Court is satisfied that the agency has met its segregability requirement. See Juarez,
518 F.3d at 61 (finding a “page-by-page” review and averments in a declaration that each piece of
information withheld could not be reasonably segregated to be sufficient for defendant to meet
24
segregability requirement); Johnson, 310 F.3d at 776 (concluding that a “comprehensive Vaughn
index, describing each document withheld, as well as the exemption under which it was withheld,”
supplemented by an affidavit indicating that an agency official conducted a review of each
document and determined that the documents did not contain segregable information was
sufficient to fulfill the agency’s obligation). Further, the Court’s in camera review of the provided
documents confirms this conclusion. The Court will therefore grant defendant’s motion for
summary judgment on the issue of segregability.
CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment [Dkt. # 22] will be
GRANTED. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: March 30, 2024
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