Am. Oversight, Inc. v. HHS, No. 17-827, 2022 WL 1719001 (D.D.C. May 27, 2022) (Sullivan, J.)

Am. Oversight, Inc. v. HHS, No. 17-827, 2022 WL 1719001 (D.D.C. May 27, 2022) (Sullivan, J.)

Re:  Request for records concerning health care reform legislation

Disposition:  Adopting magistrate judge's report and recommendation as to motion for judgment on the pleadings; adopting in part and rejecting in part magistrate judge's report and recommendation as to motion for summary judgment; granting in part and denying in part defendants' motion for summary judgment; granting in part, denying in part, and holding in abeyance in part plaintiff's motion for summary judgment

• Litigation Considerations, Jurisdiction & Reverse FOIA:  "Subsequent to the filing of the Complaint, the U.S. House of Representatives Committee on Ways and Means [CWM] intervened as a defendant."  "Plaintiff objects to Magistrate Judge Robinson's [report and recommendation] 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."  "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.'"  "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.'"  "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.'"  "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.'"  "However, as CWM points out, Defendants' internal use of the documents is irrelevant to CWM's argument, and Plaintiff's own argument is unsupported by precedent."  "For these reasons, the Court concludes that Magistrate Judge Robinson did not err in concluding that CWM is a proper defendant in this action." 
  
  Additionally, "Plaintiff . . . 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."  "Plaintiff concludes that '[b]ecause the relief the Committee seeks is only available 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.'"  "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.'"  "Plaintiff points to no authority that defenses are required to be consistent with each other."  "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."  Thus, the "Court [h]as [s]ubject [m]atter [j]urisdiction [o]ver this [a]ction."    
   
• Procedural Requirements, Searching for Responsive Records:  "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."  "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.'"  "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.'"  "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.'"   "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 search terms used.'"  "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." 
   
• Exemption 5, Inter-Agency or Intra-Agency Threshold Requirement:  "The [r]edacted [d]ocuments [w]ere [a]ppropriately [w]ithheld [u]nder the [c]onsultant [c]orollary."  "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."  "Although the Court of Appeals for the District of Columbia Circuit [] has held that Congress is not an 'agency' within the meaning of FOIA, . . .  'communications between an agency and Congress [sh]ould receive protection as intra-agency memoranda if they were "part and parcel of the agency's deliberative process."'"  "Defendants have satisfactorily met their burden of showing that here."   "[T]he 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.'"  "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."  "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.'"  As to "[t]he second factor of the consultant corollary," "[h]ere, 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.'"  "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."  "It is therefore not th[e] 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 communications were for the purpose of informing an internal executive branch decisionmaking process.'"  "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."  "In light of this detailed explanation, it is clear that 'Executive Branch decision-making about health care reform was intertwined with congressional decision-making,' . . . ; and that the communications at issue were 'part and parcel of the agency's deliberative process.'"  "The Court agrees with Defendants." 
   
• Exemption 5, Deliberative Process Privilege:  "The Court concludes that Magistrate Judge Robinson properly concluded the communications at issue are pre-decisional."  "Documents are predecisional if they are generated for use prior to a final agency decision on the matter."  "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 definable decisionmaking process for the Court to "pinpoint an agency decision or policy to which the document[s] contributed."'"  "[Plaintiff] objects that 'the available evidence reveals that many of the records instead relate to Congress's decisionmaking process.'"   However, "[t]he Court has already discussed the intertwined nature of congressional and Executive Branch decision making."  Moreover, [t]he [d]ocuments are [d]eliberative."  "The agency must identify the specific deliberative process for which the documents at issue were created."  "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.'"  "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."  "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.'"  "The Court concludes that the redacted material is simply part of the 'agency give-and-take of the deliberative process.'"  "In addition, the Court is cognizant that the deliberative process privilege 'serves to protect the deliberative process itself, not merely documents containing deliberative material.'"  "[T]his Court is [] concerned that disclosing the materials would reveal details of agency deliberations and impair the process of decision-making."  "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."'"  "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[.]'"  "Accordingly, Defendants are ordered to release any redacted information that is factual in nature, and not 'inextricably intertwined with the deliberative sections of documents.'" 
  
  Additionally, "Plaintiff argues that 'HHS improperly withheld talking points from briefing materials prepared for HHS officials in advance of meetings with members of Congress.'"  "[C]ontrary to Plaintiff's assertion, HHS has plainly met its burden to establish that the talking points were deliberative."  "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."  "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.'"  "But as Plaintiff highlights, this statement does not tell the Court whether the talking points were officially adopted or not."  "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."
  
  "Plaintiff also contends that 'OMB improperly redacted portions of the titles of meetings on several calendar entries.'"  "[A]s 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.'"  "The topic of discussion can itself disclose sensitive issues, and contrary to Plaintiff's argument, may include recommendations or express opinions."  "To that end, as Defendants argue, where the titles 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,' . . . [] 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." 
  
  "Finally, Plaintiff argues that 'OMB improperly redacted meeting locations and the names of attendees under Exemption 5.'"  "[T]he 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."  "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.'"  "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 legislative strategy and thereby exposes the deliberative process itself.'"  "[T]he 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.'"  "The Court concludes that Defendants are required to disclose the names of attendees and locations of meetings." 
   
• Litigation Considerations, In Camera Inspection:  "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."  "The Court finds no clear error in Magistrate Judge Robinson's finding and concludes in camera review is unnecessary."  "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.'"  "The Court, however, sees no reason for further affidavits (except as to the redacted talking points for meetings) given its holdings supra." 
   
• Litigation Considerations, Discovery:  "'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.'"  "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."  "[Plaintiff] objects that there are ambiguities and inconsistencies in the record evidence that preclude granting summary judgment and render discovery necessary."  "The Court finds no clear error in Magistrate Judge Robinson's finding, since, as Defendants point out, [Plaintiff's] affidavit is devoid of any explanation as to why the facts it seeks 'are necessary' to this litigation."