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Lewis v. Dep't of the Treasury, No. 20-0494, 2021 WL 4290635 (D. Md. Sept. 21, 2021) (Chuang, J.)

Date

Lewis v. Dep't of the Treasury, No. 20-0494, 2021 WL 4290635 (D. Md. Sept. 21, 2021) (Chuang, J.)

Re:  Requests for various human resources records, as well as certain emails

Disposition:  Granting in part and denying in part defendant's motion to dismiss

  • Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that "Defendants have established, and [plaintiff] has not contested, that [plaintiff] did not exhaust administrative remedies as to any FOIA requests other than [three]."  "Here, undisputed declarations and exhibits submitted by Defendants establish that based on a review of their respective FOIA records, the IRS, the [Bureau of Engraving and Printing ("BEP")], [the Treasury Inspector General for Tax Administration], and the VA have received approximately 40 FOIA requests from [plaintiff] and received only three administrative appeals."  "These [three] requests appear to form the basis, in part, of Counts 1, 2, and 3, respectively."  "The Court will therefore deny the Motion as to those parts of Counts 1, 2, and 3 based on these specific FOIA requests on which [plaintiff] exhausted administrative remedies."  "As for the FOIA claims for which there was no administrative exhaustion, [plaintiff] argues only that the agencies did not respond to her requests in a timely manner, that in some instances they provided altered records, and that even when she enlisted the assistance of her congressional representatives, she did not receive satisfactory responses."  "Such lengthy delays and unsatisfactory responses do not excuse the failure to exhaust."  "Once the agencies provided responses, even if unsatisfactory, [plaintiff] was required to file administrative appeals before filing suit."  "Defendants have established, and [plaintiff] has not contested, that [plaintiff] did not exhaust administrative remedies as to any FOIA requests other than the three discussed above . . . ."
     
  • Litigation Considerations, Mootness and Other Grounds for Dismissal:  Responding to the BEP's argument for dismissal "because the BEP granted [plaintiff's] FOIA request for HR Connect System records, and [plaintiff's] Complaint does not challenge the adequacy of the search for responsive records," the court notes that "[plaintiff] 'assert[ed] the information was not complete.'"  "Construing the Complaint in the light most favorable to Lewis, the Court finds that [plaintiff] has stated a claim that the BEP's response to her FOIA request was inadequate."
     
  • Exemption 5, Deliberative Process Privilege & Exemption 6:  "Because the Court cannot at this stage determine whether the VA properly invoked Exemptions 5 and 6 as to the April 6, 2018 memorandum, the Court will deny summary judgment as to the FOIA claim in Count 3 relating to that document."  The court relates that the "VA argues that Exemption 5 applies to [a] memorandum [which] 'concern[s] the VA's decision-making as it relates to evaluation of applicants and hiring' and reflects the 'give-and-take of the consultative process.'"  "The Court agrees that the document is predecisional because it was created as part of the process of filling the position of Deputy Assistant Inspector General for Management and Administration."  "However, whether the document contains deliberative material is not apparent from the description in the Vaughn Index."  "The same concerns bear on the VA's citation of Exemption 6, . . . which is invoked to justify the redaction of not only the entire body of the memorandum, but also the names and other identifying information of the author and recipients of the memorandum, which may include the personnel chosen to serve on the Executive Resources Board."  "The VA has not asserted that applicants are referenced in this memorandum, and it offers no specific argument for why the release of the identity of the Executive Resources Board members, or the content of the memorandum more generally, sufficiently impact privacy interests so as to warrant redaction."  "Particularly where the VA has not provided the unredacted document for in camera review, and [plaintiff] has identified an interest in ensuring that the agency properly carried out its hiring duties, the Court lacks sufficient information to evaluate the privacy interest in preventing disclosure of the identity of the Executive Resources Board members and the content of the memorandum, and to then balance it against any public interest and determine whether Exemption 6 applies."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 6
Litigation Considerations, Exhaustion of Administrative Remedies
Litigation Considerations, Mootness and Other Grounds for Dismissal
Updated November 4, 2021