Am. Oversight v. HHS, No. 17-1448, 2019 WL 1430429 (D.D.C. Mar. 30, 2019) (Jackson, J.)

Am. Oversight v. HHS, No. 17-1448, 2019 WL 1430429 (D.D.C. Mar. 30, 2019) (Jackson, J.)

Re:  Request for records concerning potential administrative actions related to implementation of Affordable Care Act

Disposition:  Denying defendant's motion for summary judgment; granting plaintiff's cross-motion for summary judgment

• Procedural Requirements:  "[T]he Court finds that the FOIA request covers the redacted information so long as it was included as in-line text in the agencies' sent emails, regardless of whether the agency authored each email in the chain."  The court relates that "[r]ather than treating entire email chains as a 'record,' defendants took a narrower approach and defined a 'record' to be each individual email in the chain 'based on whether the author was an official at one of the agencies.'"  "The practical effect of this approach is that when an agency employee replied to an email emanating from Congress and the previous exchanges were included in the response, defendants redacted from the thread any email that was authored by Congress on the grounds that it was a 'non-responsive record.'"  "Defendants insist that their approach is justified because plaintiff's request 'sought only emails from the agencies, not emails from Congress or back-and-forth exchanges between Congress and the agencies,' therefore, '[e]mails from Congress . . . were not responsive to the requests, and the agencies did not produce them.'"  "The Court finds defendants' approach to be unduly literal and stingy, and it agrees that plaintiff's position is more consistent with the day-to-day reality of electronic communication as well as the general legal principles to be applied in FOIA cases."  "While plaintiff could have been more clear in framing its request, it is commonly understood that an email chain operates as a single record."  "The very nature of a 'reply' – as opposed to a 'new message' –  necessarily implies that the communication is responsive to the message that came before, and therefore it incorporates what came before, and the two form a unified exchange."  "Indeed, in many instances, a reply email ('I agree.' 'No.' or 'LOL') simply cannot be understood without reference to the previous message."  "Thus, the prior messages received from Congress not only appear physically within the agencies' outgoing emails, but they were incorporated into the agencies' communications."  "Whether that was a conscious or subconscious choice is irrelevant; what matters is that the emails sent by agency personnel did in fact contain the prior exchanges with Congressional staff."
   
• Exemption 5, "Inter-Agency or intra-Agency" Threshold Requirements:  "[T]he Court holds that the redacted emails do not qualify as 'intra-agency' communications under Exemption 5, and the agencies must produce the responsive materials."  "Since the threshold requirement of Exemption 5 is not satisfied, the Court need not address the question of whether the material is both 'predecisional' and 'deliberative.'"  The court explains that "Defendants' declarations in support of their motion for summary judgment fail to establish the 'inter' or 'intra' agency requirement of Exemption 5, because they do not address whether the outside consultants – the Congressional representatives and staffers – advised the agencies in a self-interested manner or whether their 'only obligations [were] to truth and [a] sense of what good judgment calls.'"