Democracy Forward Found. v. Centers for Medicare & Medicaid Services, No. 18-635, 2019 WL 6344935 (D.D.C. Nov. 27, 2019) (Bates, J.)

Democracy Forward Found. v. Centers for Medicare & Medicaid Services, No. 18-635, 2019 WL 6344935 (D.D.C. Nov. 27, 2019) (Bates, J.)

Re:  Request for records concerning CMS's Affordable Care Act enrollment outreach

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

• Exemption 5, "Inter-Agency or Intra-Agency" Threshold Requirement & Deliberative Process Privilege:  The court relates that "[plaintiff] challenges CMS's withholding of three documents or sets of documents:  (1) a 'Final Report' on the Healthcare.gov 2016–2017 Open Enrollment Campaign . . . ; (2) several attachments to a July 11, 2017 meeting invite to discuss Open Enrollment . . . ; and (3) communications between CMS officials and employees of . . . a public relations firm . . . ."  First, "[t]he Court concludes that CMS has shown that the Final Report generally falls within the ambit of Exemption 5 but has failed to show that its segregability analysis was adequate."  "As a preliminary point, although [plaintiff] does not challenge the withholding of the Final Report on this ground, the Court determines that the consultant corollary applies here."  "The fact that CMS solicited advice from [an outside party] weighs in favor of application of the corollary, and nothing in the declarations suggests that [the outside party] had any interest other than CMS's in mind when providing that advice."  "Next, the declarations are sufficient to support CMS's assertions that the Final Report is both predecisional and deliberative."  "[Defendant's] declarations make clear that the Final Report, temporally, preceded CMS's 'decisions' as to enrollment research, audience targets, and so forth."  "According to the declarations, the purpose of the Report was to provide advice on any future decisions on those topics."  "Hence, the Report was predecisional."  "Similarly, it was deliberative because it was 'written as part of the process by which' CMS could make final decisions."  However, the court finds that "CMS has done too little to demonstrate to the Court that it has adequately analyzed the Final Report for segregable information."  "The Vaughn index says not a word about segregability."  "[T]he Court has no way to evaluate, based on the current record, whether any portions of the Final Report fall into . . . non-exempt categories."  "Therefore, the Court will require CMS to re-assess the Final Report and either disclose all reasonably segregable portions of non-exempt material or provide the Court with more specific information justifying its withholding of the entire Report."  Second, "[f]or much the same reasons as stated above, the Court concludes that Exemption 5 applies generally to the July 11, 2017 meeting attachments."  "The attachments are Microsoft PowerPoint slides that were developed by [an outside party] (to which the consultant corollary is again applicable) from the Final Report to 'inform the CMS leadership about the outreach lessons for open enrollment to inform future decisionmaking by the agency as well as setting forth goals and milestones for proposed agency action well into November and December [of 2017].'"  "The attachments were thus predecisional, because they preceded any ultimate outreach decision, and deliberative, because they 'assist[ed] development of the agency's final position on the relevant issue.'"  "But, as with the Final Report, the Court determines that CMS has not met its burden with respect to its segregability obligations."  "The Vaughn indexes as to the attachments are again silent on segregability, and the declarations contain nothing more than conclusory assertions that no portions of the attachments are reasonably segregable . . . ."  Third, the court finds that "[defendant's] statement that [one outside party] was a sub-contractor' whose 'purpose' was to 'assist[ ] the CMS Office of Communications' with 'provid[ing] administrative guidance in relations with CMS leadership,' . . . is sufficient to merit application of the corollary."  "[Plaintiff] next contends that the challenged communications here were not between just CMS and [the outside subcontractor], but also included another participant . . . ."  The court "concludes that, based on the information before it, it cannot determine whether CMS has satisfied the threshold requirement for asserting the deliberative process privilege over these communications – namely, that the consultant corollary applies to [the other participant]."  "For this reason, the Court will deny CMS's motion for summary judgment as to items that include [the other participant] and allow CMS to include in any future motion another declaration addressing this issue."  "Likewise, because [plaintiff] has not demonstrated that [the other participant] was not a consultant, the Court will deny [plaintiff's] cross-motion for summary judgment as to those items but allow it to include additional details in support of its claims in any future motion."  "Because [plaintiff] has not challenged CMS's segregability analysis with respect to the [subcontractor] communications, the Court will grant CMS's motion for summary judgment as to those items that do not include [the other participant]."