Am. Oversight v. U.S. Dep't of Treasury, No. 17-2078, 2020 WL 4201627 (D.D.C. July 22, 2020) (Walton, J.)

Am. Oversight v. U.S. Dep't of Treasury, No. 17-2078, 2020 WL 4201627 (D.D.C. July 22, 2020) (Walton, J.)

Re:  Request for communication records concerning potential legislation regarding federal tax code exchanged between or including any members of Congress or congressional staff and certain Treasury offqicials and anyone acting on behalf of any of those officials

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

• Exemption 5, "Inter-Agency or Intra-Agency" Threshold Requirement:  The court agrees with "Treasury['s] conten[tion] . . . that its communications with Congress were properly withheld under Exemption 5 because these communications were made 'in aid of the agency’s deliberative process[,] . . . and therefore qualify as 'intra-agency' records under a doctrine known as the 'consultant corollary' . . . ."  First, the court finds that "[h]ere, the declarations submitted by Treasury demonstrate the 'indicia of a consultant relationship' between the agency, the Tax Reform Working Group, and other members of Congress and their staff."  "Specifically, the declarations show that Treasury consulted with the Tax Reform Working Group and other members of Congress and their staff to benefit Treasury's decisionmaking processes regarding the development of tax reform legislation, and that Treasury relied on these communications like they would the analysis and recommendations of an outside consultant."  Responding to plaintiff's arguments, the court finds that "while some of the withheld communications were not expressly solicited by Treasury, this does not change the underlying fact that Treasury had established a consultant relationship with the Tax Reform Working Group and other congressional actors in aid of its deliberative process."  Additionally, "plaintiff 'cites no authority that suggests, much less holds, that the subjective mindset of a non-agency is a requirement . . . when applying the consultant corollary [doctrine][,]' . . . ."  "Rather, the relevant inquiry is whether there exists 'some indicia of a consultant relationship between the outsider and the agency[,]' . . . ."  Finally, "while members of Congress may have received guidance from Treasury or even initiated contact with Treasury, 'the consultative relationship is not mutually exclusive' with other features of the relationship, and there is no indication that these other features have 'eclipse[d] the consultative relationship[.]'"  Second, the court holds that "[h]ere, the members of Congress who interacted with Treasury on the Trump tax reform initiative and their staff 'were not self-advocates seeking a particular government benefit at the expense of others[,]' but rather, they were 'working together' with Treasury 'on the common project of enacting tax reform consistent with the Trump Administration’s priorities[.]'"  The court holds that "the interests of the members of Congress who interacted with Treasury on the Trump tax reform initiative are 'sufficiently aligned with the federal agency's interests so as to be included in the consultant corollary [doctrine][.]'"  Responding to plaintiff's arguments, the court holds that, "[a]lthough these congressional individuals 'may have also had their own interests that differed somewhat from Treasury's' regarding 'their own opinions and views about the precise type of pro-growth tax reform that should be undertaken,' Treasury's declarations and Vaughn index demonstrate that these individuals 'were not seeking a limited benefit from Treasury to the exclusion of others.'"  Additionally, "the Circuit 'has recognized that, under some circumstances, a consultant and an agency may share common goals such that, even if the consultant appears to be acting to foster its own interests, its actions might also be construed as aiding an agency process.'"
   
• Exemption 5, Deliberative Process Privilege:  "[T]he Court concludes that the withheld material constitutes both predecisional and deliberative material, and therefore qualifies for protection under the deliberative process privilege of Exemption 5."  First, "the Court concludes that the withheld material satisfies the predecisional prong of the deliberative process privilege" because "'[t]he withheld material all pre[ ]dates the enactment of the Tax Cuts and Jobs Act.'"  Second, "the Court concludes that the withheld material satisfies the deliberative factor of the deliberative process privilege" because "[t]he declarations and Vaughn index submitted by Treasury demonstrate that it relied upon the withheld material in its 'decisionmaking processes linked to the process of developing tax reform legislation,'" and "the disclosure of the information at issue 'would discourage candid discussion within the agency' and therefore undermine the purpose underlying the deliberative process privilege."  Responding to plaintiff's argument "that the communications at issue 'precede and inform legislative, not administrative, actions[,]' and only had 'tenuous downstream effects on possible later Treasury actions,'" the court holds that "'collaborative communications between an agency and Congress concerning potential legislation will frequently benefit both the agency's work and Congress's.'"
   
• Litigation Considerations, Reasonably Segregable Requirements:  "[T]he Court is satisfied that Treasury has conducted a proper segregability analysis."  "Treasury represents that it has 'reviewed each record at issue, line-by-line, to identify information exempt from disclosure[,]' and that '[w]ith respect to the records at issue that were released in part, all information not exempted from disclosure . . . was correctly segregated and released.'"  "Additionally, '[w]ith respect to the records at issue that were withheld in full,' Treasury represents that it has 'determined that no segregation of meaningful information can be made without disclosing information warranting protection under the law.'"  "And, Treasury is 'entitled to a presumption that [it] complied with the obligation to disclose reasonably segregable material' . . . ."