Cause of Action Inst. v. Exp.-Imp. Bank of the U.S., No. 19-1915, 2021 WL 706612 (D.D.C. Feb. 23, 2021) (Boasberg, J.)

Cause of Action Inst. v. Exp.-Imp. Bank of the U.S., No. 19-1915, 2021 WL 706612 (D.D.C. Feb. 23, 2021) (Boasberg, J.)

Re:  Requests for communications involving four senior Export-Import Bank officials regarding series of individuals and business entities

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court first considers the withholding of "portfolio risk-management reports, cybersecurity recommendations, senior staff reports, and several miscellaneous documents."  The court notes that "Plaintiff does not dispute that all of these documents satisfy Exemption 5's threshold requirement of 'inter-agency or intra-agency memorandums or letters.'"  Regarding the "portfolio risk-management reports," the court finds that "Defendant has satisfactorily established the 'decisionmaking process' to which the reports contribute."  "Marshaling both quantitative and qualitative data, and addressing the Bank's vulnerable transactions both individually and collectively, the reports examine in considerable detail various 'risks presented by these transactions,' identify potential 'remedies to address' such risks, and assess the likelihood of full and partial recovery."  "As [defendant] explains, the reports do not become the agency's official or unofficial position on a particular issue; rather, [defendant's Enterprise Risk Committee ("ERC")] uses them 'on a continual basis to analyze and monitor the risks of different loans, debt or loan portfolios, and other financial transactions that have developed credit issues since they were approved.'"  "Their 'case by case' analyses of 'each troubled transaction' distill 'a range of opinions . . . widely discussed at various levels of the agency,' . . . thus plainly 'reflect[ing] the give-and-take of the consultative process.'"  Additionally, "the factual material contained in the reports reflects their drafters' discretionary judgment regarding the particular information that would be relevant to the ERC's decisionmaking process."  Regarding "two internal EXIM cybersecurity-related memoranda and one 'cybersecurity dashboard,'" the court relates that, "[a]s an initial matter, the agency's Vaughn Index omits all mention of one of the two withheld memoranda."  "The Court only became privy to its existence by way of in camera review, finding it tucked within a different record marked for other purposes."  "As for the remaining two documents, the agency's treatment of them is far too cursory."  "All its declarant says is that they 'present analysis by [defendant's] Chief Information Officer [("CIO")] to the Enterprise Risk Committee of issues related to cybersecurity risks [defendant] faces.'"  "Notably lacking from this ephemeral account, as well as Defendant's accompanying briefing, is any explanation of the relationship between the CIO and ERC, their respective responsibilities for formulating cybersecurity policy, and – most critically – the documents' role in any such agency decisional process."  Regarding "four internal senior staff reports, along with one duplicate report," the court finds that "Defendant simply approaches the documents from a generic, 30,000-foot view while ever so briefly narrowing in on a few unrepresentative portions, some of which do clear the Exemption 5 bar."  "That will not do, particularly given the wide variety of content contained in the lengthy reports."  "In sum, while certain of Defendant's redactions within the reports were appropriate, much of the withheld material does not qualify for protection under Exemption 5 and must be released."  Regarding certain meeting documents, the court notes that "Defendant neglects to include [certain documents] in its Vaughn Index" and "notwithstanding its near-complete withholdings, Defendant in its submissions completely ignores all six records, declining even to mention them in its declaration and briefing."  The court finds similarly regarding certain presentation slides.  Regarding "internal email from an . . . Assistant General Counsel to the agency's Chief Risk Officer focusing on 'questions regarding [the] [GAO] report,'" the court finds that the email "offers details potentially informing how senior management might 'respond to inquiries regarding' such report."  "Here, however, while the agency's submissions establish that the email at hand is predecisional, it cannot satisfy the deliberative prong."  "The Court's review reveals that the message contains no 'advisory opinions, recommendations[, or] deliberations' regarding the agency process at issue." 
   
  Regarding certain "'strategic plan[s]' aimed at securing a particular individual's Senate confirmation to a position," the court first finds that "[t]he Court . . . assumes, as Plaintiff also contends, that EXIM sent the records to an entity that does not qualify as an agency under FOIA – namely, a unit of advisors to the President."  However, the court finds that "[s]o long as the records would 'expose the pre-decisional and deliberative processes of the Executive Branch,' therefore, they are protected from disclosure under Exemption 5."  The court then finds that "[t]he agency's declarant explains that the 'planning documents . . . present proposals back and forth between . . . officials and the Executive Office of the President of the United States discussing plans how to get high-level political nominees confirmed by the U.S. Senate.'"  "The memoranda are also clearly deliberative inasmuch as they reflect the Executive Branch's priorities surrounding the nominees and evolving, potential strategies for how each might attain confirmation."  Additionally, the court finds that "[defendant] has discharged its duty to establish reasonably foreseeable harm from the release of the planning documents."  "Disclosure of an aspect of the Executive Branch's strategic playbook for helping its nominees attain confirmation would, naturally, 'significant[ly] chill' any future 'written discussion of such plans.'"
   
  Finally, the court analyzes defendant's withholdings of "various productions and responses to GAO in connection with its aforementioned audit of the Bank's anti-fraud controls," and "concludes that [defendant] properly withheld one and must release one."  "As to the remaining three, the Court once again holds . . . that the Government has not furnished a record adequate to support a de novo review of its withholdings."  The court first finds that "documents exchanged 'between an agency and Congress . . . receive protection as intra-agency memoranda if they were "part and parcel of the agency's deliberative process,"' but not if they were 'created specifically to assist' or for the 'sole purpose of assisting' Congress 'with its deliberations.'"  Regarding the records that the court finds is appropriately withheld, the court finds that "[t]he memo . . . was plainly 'part and parcel of the agency's deliberative process,' and it did not forfeit its protection upon [defendant's] mere submission to Congress a decade after its creation."  "While hefty chunks of information within the memo may be characterized as factual, its author's 'selection of the facts thought to be relevant' to the decision at hand constitutes a core part of the agency's deliberative process."  "Disclosure of this initial investigatory document, moreover, would expose aspects of the Bank's anti-fraud strategies to the public eye, thus 'deterr[ing] [agency staff] from frankly assessing individual fraud matters[ ] and openly proposing plans to address such fraud.'"  However, regarding one record which contains a "'response to GAO questions,'" the court finds that "in no fashion may the document be deemed deliberative."  "It simply reports the dollar amount of a particular restitution award identified from a court order, in response to a GAO inquiry."  "Because withholding this record seemingly does nothing to 'protect[ ]' [defendant's] 'decision making processes,' . . . and because Defendant has pointed to no foreseeable harm from its disclosure, the agency must release it to Plaintiff."
   
• Exemption 5, Attorney-Client Privilege:  Regarding "internal email from an . . . Assistant General Counsel to the agency's Chief Risk Officer focusing on 'questions regarding [the] [GAO] report,'" after determining that this email is not covered by the deliberative process privilege, the court finds that "[n]owhere does the message – which, as explained above, accomplishes the ministerial task of tracking down and relaying information from a public report – purport to impart, or respond to a request for, legal advice."
   
• Exemption 6:  The court considers the withholding of "email addresses of a handful of personnel from the Executive Office of the President under Exemption 6," and finds that "even assuming the email addresses are properly subject to FOIA, Exemption 6 provides a sufficient basis for the Bank's nondisclosure."  First, the court finds that "[t]here is no dispute that the withheld email addresses qualify as 'similar files' under the statute."  Second, "the Court agrees with [defendant] that the identified [Executive Office of the President ("EOP")] personnel enjoy a 'substantial privacy interest' in their email addresses."  "According to the Bank, disclosure of the withheld contact information could cause those individuals to experience 'harassment, unwanted attention, and unsolicited communications.'"  The court also takes note of what it characterizes as "[t]he broader principle that '[t]he privacy interest of civilian federal employees includes the right to control information related to themselves and to avoid disclosures that "could conceivably subject them to annoyance or harassment in either their official or private lives."'"  Additionally, the court finds that there is a greater privacy interest present because "the withheld addresses are retained by high-ranking executive-branch staffers, not lower-level agency line employees far removed from any substantive policy role or the key events at issue."  Finally, the court finds that "Plaintiff has identified no public interest whatsoever in the withheld email addresses."
   
• Procedural Requirements, "Agency Records":  Regarding "a seemingly innocuous email chain setting up a call between [one of defendant's] employee[s] and an official within the Executive Office of the President," in light of defendant's position that certain EOP records are "'not subject to FOIA,'" "[t]he Court . . . finds that it cannot presently resolve this quarrel, as both parties' submissions leave certain critical elements wanting."  "For all of Defendant's insistence that the relevant portions of the email chain are not subject to FOIA, it insufficiently identifies the source of such material while overstating the entities not covered by the statute's broad disclosure mandate."  "The Government at times suggests, for instance, that 'all individuals employed in the Executive Office of the President and its supporting offices' are not subject to FOIA."  "On the contrary, FOIA makes clear that the EOP is within its reach."  "It is only the President's 'immediate personal staff,' as well as Executive Office units 'whose sole function is to advise and assist the President,' that are excluded from the statute's coverage."  "Defendant has made no effort to establish that the sender of the redacted emails falls into that latter group."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court relates that "[a]ll [defendant] offers on the matter is its conclusory assertion that it 'has conducted a line-by-line review of all of the foregoing documents and has segregated and released all reasonably segregable, non-exempt information.'"  "That alone will not discharge the agency's 'obligation to carry its evidentiary burden and fully explain its decisions on segregability.'"  "The Court's own in camera review, moreover, causes it to further question whether the Bank has adequately complied with FOIA's segregability mandate."