Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Army, No. 21-2482, 2023 WL 3995639 (D.D.C. June 14, 2023) (Friedrich, J.)

Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Army, No. 21-2482, 2023 WL 3995639 (D.D.C. June 14, 2023) (Friedrich, J.)

Re:  Request for records concerning communications about South Dakota National Guard deployment to Texas to help secure the border between the United States and Mexico, as well as concerning private donation funding deployment

Disposition:  Denying defendants’ motion for summary judgment; granting plaintiff’s motion for summary judgment

• Exemption 5, “Inter-Agency or Intra-Agency” Threshold Requirement:  The court relates that “[t]he defendants concede that the records in dispute are not ‘inter-agency.’”  The court finds that “a state National Guard is included in FOIA’s definition of ‘agency’ because it is ‘part of the military department of the Army.’”  “On the other hand, ‘a state agency is generally not an agency for purposes of the FOIA.’”  “Because all of the withheld communications were between the Adjutant General of the South Dakota National Guard (agency) and state officials (non-agency), they are not inter-agency.”
  
  The court relates that “defendants contend that the records are exempt from disclosure because the ‘consultant corollary’ exception to Exemption 5 applies.”  The court finds that “[h]ere, neither category of communications was ‘created for the purpose of aiding the agency’s deliberative process.’”  “In each, the federal official’s advice was sought to inform state officials’ decision-making.”  “The first category, according to the Adjutant General, ‘reflect[ed] the joint deliberations of State officials and [him] concerning the contents to recommend to the Governor, who was the ultimate decisionmaker concerning the content of these statements.’”  “With respect to the second category, the Adjutant General was ‘included’ into ‘discussions among State officials’ about how they should ‘respon[d] to inquiries’ about the deployment, including inquiries about ‘the proper procedure for accepting a private donation by the State of South Dakota, proper routing of such inquiries and which office(s) would be responsible for follow up.’”  “In both instances, state officials solicited and received feedback on how they should talk about the deployment to the press, public, and other inquirers.  In other words, the Adjutant General was a participant in the state’s deliberative process.”  “The defendants have provided no support for extending the consultant corollary to cover this ‘reverse relationship.’”  “To the contrary, ‘[n]one of [this Circuit’s] cases have extended’ Exemption 5 ‘to the protection of deliberations of a non-agency either as an interpretation of “intra-agency” or “inter-agency.”’”  “As a doctrine of executive privilege, ‘what matters is whether a document will expose the pre-decisional and deliberative processes of the Executive Branch.’
  
  “Although the defendants do not contest the consultant corollary’s limitation to communications in aid of the agency’s decision-making . . . they argue that the deliberations at issue reflect a joint venture requiring both federal and state decisions.”  “While there may be cases where ‘back-and-forth communications’ between an agency and non-agency are in aid of both entities’ decision-making, . . . the defendants offer no evidence that occurred here.”  “Nor do the defendants identify any federal decision that was at stake.”  “That the Adjutant General provided insight into ‘Federal policy and the applicable Federal rules and regulations’ to guide the state’s decision-making . . . is not enough to satisfy the consultant corollary standard.”  “Decisions about the content of the governor’s statements, responses, and general communications strategy remained the State’s.”  “Even if the Adjutant General provided input to ‘ensur[e]’ the state decisions’ ‘compliance with the applicable federal laws, regulations and procedures,’ . . . there is no indication that these communications ‘involve[d] more than obviously unidirectional advice’ from the agency to the state.”  “Furthermore, the necessity of the National Guard and the State working together does not make their communications intra-agency.”  “Certainly, exempting their conversations from disclosure might make sense as a policy matter – but ‘policy concerns cannot trump the plain language of the Freedom of Information Act or the underlying policy of the FOIA favoring public disclosure.’”  “Likewise, that state and federal officials are on the same team seeking a common goal is not enough to exempt their communications from disclosure.”  “A mere lack of adversity is a necessary but not a sufficient basis for the consultant corollary to apply.”
  
  “Despite the Court's conclusion that the withheld records are not exempt from disclosure under Exemption 5, the Court is sympathetic to the defendants’ concern that disclosure of the records could hinder future discussions between the Adjutant General and state officials in pursuit of a common goal.”  “The Court further acknowledges that this ruling produces an odd outcome considering that these discussions would be protected either under Exemption 5 (if wholly federal) and under South Dakota law (if wholly state) . . . and yet the very structure of the National Guard necessitates crossing federal-state lines.”  “But this decision is compelled by binding D.C. Circuit precedent.”  “[T]he National Guard (and thus the Adjutant General) is a federal agency under FOIA ‘at all times,’ even ‘when not on active federal duty,’ . . . .”  “And the state is not.”  “Accordingly, communications between the Adjutant General and the state are not exempt from disclosure under FOIA.”