Cause of Action Inst. v. VA, No. 20-997, 2021 WL 1549668 (D.D.C. Apr. 20, 2021) (Howell, J.)

Cause of Action Inst. v. VA, No. 20-997, 2021 WL 1549668 (D.D.C. Apr. 20, 2021) (Howell, J.)

Re:  Request for records concerning pilot market assessments created by VA contractor in preparation for VA's implementation of the congressionally mandated Market Area Health System Optimization ("MAHSO") analysis, part of broader national plan to improve delivery of health care to veterans within Veterans Integrated Service Networks ("VISNs")

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

• Exemption 5, Deliberative Process Privilege:  The court holds that "[b]ased on the above description of the three pilot market assessments and three briefing documents, VA has shown that, while thirty-eight pages describing the draft methodology used in the studies were released, with some redactions, the deliberative process privilege properly applies to withhold the other 451 pages of these records."  The court explains that "the agency has adequately stated the deliberative processes involved (i.e., VA's deliberations about how to conduct market assessments in each of its ninety-six VISN markets and, in turn, how to develop its National Realignment Strategy); the role the withheld sections of the documents played (i.e., evaluating the success and application of the draft methodology, considering how to present results of the market assessments to leadership, Congress, and the public, and identifying options for recommendations to be included in the National Realignment Strategy); and the nature of the decisionmaking authority of the author of the documents (i.e., an outside consultant contracted to provide advice to the agency about how to carry out uniform market assessments)."  "The conclusions reached in the documents offer options for the presentation, development, and types of recommendations that the agency might choose to pursue in the course of the ninety-six VISN market assessments and the formation of the National Realignment Strategy."  "[An outside consulting firm's] suggestions on these topics remain under agency consideration."  "Similarly, the assessment of and recommendations specific to the three pilot markets studied are not the agency's final evaluation of those markets."  "VA's redactions from twenty-two of the thirty-eight released pages of the names of facilities and markets studied, and content revealing the substance of the pilot market assessments are likewise supported by these factors."
  
  Regarding the predecisional nature of the documents, the court holds that "the pilot market assessments and briefing documents about three test markets represent a methodology for conducting uniform, nationwide market assessments, which methodology is subject to change and indeed, has already been revised, and the assessments themselves are currently in the process of being reexamined. The assessments will inform VA's determination of how to approach the ninety-six VISN market assessments, the types of recommendations to pursue, and how to present that information to agency leadership, Congress, and the public."  "They have no operative legal effect, their actual use by VA in the course of carrying out the MAHSO analysis notwithstanding."  "All of these factors show that the seven contested records are predecisional."  Of note, the court finds that "[u]ntil its final report to Congress is submitted, VA could abandon the pilot market assessments altogether, modify the methodology set forth therein, or determine that it does not wish to pursue the types of recommendations included in the seven deliverables, and the agency in fact states that the methodology has been and may continue to be revised."  "In the face of these clear disclaimers of finality, the record does not support a conclusion that VA 'treats' the pilot market assessments and briefing documents 'as its final view' on either the methodology for the market assessments as a whole or the assessment of the three pilot markets in particular."  Also, the court finds that "like the draft biological opinions disputed in [U.S. Fish & Wildlife Serv. v. Sierra Club, Inc.,141 S. Ct. 777, 785 (2021)], the pilot market assessments and briefing documents are regarded by VA as subject to revision as to both the methodology they propose and their specific findings about the three pilot markets."  "Further, VA has not held these documents out as final in any way."
  
  Regarding the deliberative nature of the documents, the court finds that "the pilot market assessments and briefing documents relate to VA's choice of methodology to carry out the market assessments, the types of improvement opportunities to pursue, and how to present its findings to the [Asset and Infrastructure Review] Commission, Congress, and the public."  "Decisions of this ilk are regularly held to fall within the scope of Exemption 5 even though they may not be 'final' or 'official' decisions of policy or law."  "Plaintiff's contention that the pilot market assessments and briefing documents must have 'some broader function and significance . . . in the overall scheme of agency decisionmaking,' . . . is thus mistaken."  "VA has shown that it continues to build on the methodology proposed in these records as it completes the MAHSO analysis, and that these records inform its 'refine[ment]' of not only the methodology, but also the types of substantive recommendations that may be made in relation to each VISN and the information that may be included in its market assessment reports."  "The deliberative process privilege requires nothing more."
  
  Regarding foreseeable harm, the court finds that "VA's Vaughn Index and declarations . . . identifies the contents of the documents with sufficient particularity."  "The agency affirmatively concludes, with respect to each of the seven challenged records, that disclosure would harm an interest protected by the privilege."  "VA first states that disclosure of the withheld information 'would chill future agency deliberations, causing harm to the agency’s ability to obtain a comprehensive and thoughtful analysis that considers all aspects of the issues affected.'"  "It further submits that '[r]eleasing data' used in the pilot market assessments 'without knowledge of how that data is being used or linked to VA recommendations would undermine the project as the data may be misleading or misinterpreted, causing individuals to draw conclusions about VA action that may not be accurate,' while releasing 'recommendations in the pilot studies that ultimately may not be made or proposed' in the National Realignment Strategy would generate confusion about VA's plans for the continued provision of veteran health care in certain markets."  "Finally, VA contends that 'the moment a pilot assessment is released, interested parties may interpret the pilots and try to influence the working recommendations or opportunities (positively or negatively) identified in the pilot market assessment or the currently underway market assessments.'"  "'Shifting the focus to individual interests would undermine the goal of the ongoing assessments, i.e., the creation of high performing networks that provide high-quality, readily accessible care for Veterans.'"  "VA also links these specified harms to 'specific information contained in the material withheld.'"  "For each of the seven documents, VA explains that disclosure 'would chill future agency deliberations' by impeding 'the agency's ability to obtain [from staff or external consultants] a comprehensive and thoughtful analysis that considers all aspects of the issues affected' and causing VA staff engaged in the ongoing market assessments 'to be subjected to pressure' from external stakeholders 'as they evaluate the data and make recommendations,' to the detriment of the agency's efforts to act objectively."  "VA further indicates that release could lead external stakeholders to 'draw erroneous conclusions” about VA's plans for reform in one of the test markets or on a national scale, as compared to the recommendations VA eventually includes in its National Realignment Strategy."
   
• Litigation considerations, "Reasonably Segregable" Requirements:  The court holds that "VA's declarations and Vaughn Index are . . . sufficient to establish non-segregability of the disputed exempt records."  The court relates that "[defendant] states, for each of the contested documents, that any potentially non-exempt factual information and data is 'inextricably intertwined' with privileged information, 'as it contributes to the rationale for making the proposed recommendations and methodology used in the pilots,' . . . and that '[t]he information used and analyzed in conducting the pilot assessments is/will be used in the larger 96-market assessment project' and thus 'is inextricably intertwined with the ongoing market assessments' . . . ."  Additionally, the court finds that "[a]n agency's revision of its previous segregability determination does not, as plaintiff suggests, raise an inference that the agency has failed to comply with its obligation to release all reasonably segregable, non-exempt information."  "To the contrary, supplemental releases of information 'evidence[ ] a good-faith effort on the [agency's] part to segregate nonexempt information where possible.'"