Am. Oversight v. DOT, No. 18-1272, 2022 WL 103306 (D.D.C. Jan. 11, 2022) (Kollar-Kotelly, J.)

Am. Oversight v. DOT, No. 18-1272, 2022 WL 103306 (D.D.C. Jan. 11, 2022) (Kollar-Kotelly, J.)

Re:  Request for communications between Congress and DOT

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 5, "Inter-Agency or Intra-Agency" Threshold Requirement:  "[T]he Court concludes that the communications here are 'inter-agency' records."  "As the Court of Appeals has explained, 'communications between an agency and Congress' fall squarely within Exemption 5 so long as they are otherwise privileged."  "For these interbranch communications to be intra- or inter-agency, however, the 'records exchanged' must either have been (1) solicited by the agency or otherwise received where there is 'some indicia of a consultant relationship between' the interbranch staffs, and (2) the records must have been 'created for the purpose of aiding the agency's deliberative process.'"  "Plaintiff's strongest argument that the documents at issue are not covered by Exemption 5 is that the Congressional staff represented their 'Senator's own interests and agenda, and the institutional interests of the legislative branch' as opposed to common interests shared by the respective staffs."  The court relates that "[t]he consequences of forcing the district court, as factfinder, to determine whether the non-agency ever had 'its own interests in mind' when conversing with the agency should not be understated."  "First, it would require the district court to determine the subjective mindset of an interlocutor relying on nothing more than the communications themselves."  "The Court agrees with [a prior court decision] that the relevant inquiry is, and should be, whether the two staffs were 'working together' to achieve a common legislative purpose."  "[T]he Court concludes that the two staffs here were, in fact, working together towards a common legislative purpose."
  
  "As to whether the records were 'created in aid of the agency's deliberative process,' Plaintiff again concedes as much."  "'DOT "solicited" the information, "relied on" or "used" it for internal agency purposes, and the information contained in the emails "informed" DOT's decisionmaking.'"
  
  "That said, the Court agrees with Plaintiff that the consultant corollary doctrine, as applied to Congressional communications, constructs a kind of legal fiction."  "Characterizing staffers, and even members of Congress [as agency consultants], may seem to stretch the consultant corollary doctrine beyond its bounds, but the application of the consultant corollary doctrine to Congress furthers FOIA's interests even more than its application to private organizations."  "[Interbranch staffers] would not exchange full-throated discussions on common legislative goals if they knew it would be subject to disclosure simply because a 'house.gov' or 'senate.gov' was cc'ed on an email."   
   
• Exemption 5, Deliberative Process Privilege:  "First, the Court concludes that the documents at issue were predecisional."  "Defendant states that the communications with Congressional staff helped DOT 'evaluate[ ] and consider[ ] transportation initiatives.'"  The court finds that "the interbranch communications were prepared in order to 'assist' DOT in determining what legislative details it would support in draft legislation and, ultimately, whether it would support the legislation itself."  Second, "the Court concludes that the communications at issue informed and furthered the agency's own policy deliberations."  "Upon review of the communications themselves, each draft legislation inhabited a different stage of the process."  "Plaintiff insists that documents that 'precede and inform legislative, [and] not administrative actions' cannot further agency deliberation."  However, the court relates that "DOT relied on these communications to '"advise the Secretary and the White House and others in the Executive Branch about how DOT's programs might be affected by legislation and to consider agency policy options."'"
   
• Exemption 5, Foreseeable Harm:  "DOT maintains that '[a]bsent an expectation of confidentiality, DOT would not have been able to effectively deliberate about those issues internally or engage with Leader McConnell's Office to shape legislation to advance DOT's priorities'" and that "'public dissemination . . . would reveal internal Executive Branch deliberations about important transportation policy issues related to [particular] infrastructure funding [bills] and FAA reauthorization.'"  "[T]he Court adopts that conclusion."