Democracy Forward Found. v. Ctrs. for Medicare & Medicaid Servs., No. 18-635, 2020 WL 1508508 (D.D.C. Mar. 30, 2020) (Bates, J.)

Democracy Forward Found. v. Ctrs. for Medicare & Medicaid Servs., No. 18-635, 2020 WL 1508508 (D.D.C. Mar. 30, 2020) (Bates, J.)

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

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

• Exemption 5, "Inter-Agency or Intra-Agency" Threshold Requirement:  The court relates that "the Court's previous decision resolved all issues in this case save two."  "As to the first remaining question, relating to certain communications in which [a non-government individual] appears as a sender or recipient, the second supplemental declaration of [CMS] states that the consultant corollary applies to the . . . communications because [the non-government individual] 'was on [a] contract,' under which '[an outside entity] provided advice to CMS with respect to communication strategies, administrative guidance, and coordination with CMS leadership.'"  The court notes that "plaintiff] does not challenge this determination . . . ."  "The Court agrees that the consultant corollary applies to [these] communications."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court notes that "[a]s such, only one question remains before the Court:  whether CMS's second supplemental declaration, unlike its previous two declarations, demonstrates that the agency has met its burden with respect to its segregability obligations under FOIA."  "The Court's previous opinion determined that CMS's declarations to that point, while establishing that the deliberative process privilege applied generally to the challenged documents, had made only conclusory statements of non-segregability that failed to provide a detailed justification for its withholding of the documents in full."  "This time around, however, the Court concludes that CMS's new declaration is sufficient to entitle it to a presumption that it complied with its segregability obligations and that [plaintiff] has not produced a quantum of evidence to rebut that presumption."  The court finds specifically that "statements in the new declaration that CMS did, in fact, conduct 'a line by line review' of the documents and determined that there was no material that could be meaningfully segregated – fact, opinion, or otherwise."  Responding to one of plaintiff's arguments, the court finds that "it is . . . well-settled that a document's culling or organization of relevant facts, reflecting an 'exercise of judgment as to what issues are most relevant' to the advice and recommendations contained in the document can be part of an agency's deliberative process."  Responding to another of plaintiff's arguments, the court finds that "[plaintiff] has proffered no quantum of evidence indicating that any recommendations contained in the challenged documents have been 'adopted, formally or informally, as the agency position.'"