Friends of the River v. U.S. Army Corps of Eng’rs, No. 16-2327, 2023 WL 4105168 (D.D.C. June 21, 2023) (Cobb, J.)

Friends of the River v. U.S. Army Corps of Eng’rs, No. 16-2327, 2023 WL 4105168 (D.D.C. June 21, 2023) (Cobb, J.)

Re:  Requests for records concerning operation and maintenance of two dams on Yuba River and impact of those dams on several fish species that are protected by Endangered Species Act

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

• Litigation Considerations, Pleadings:  The court finds that “[a]s an initial matter, the Court dismisses [plaintiff’s] claims against Lieutenant General Todd T. Semonite, who is sued in his official capacity as Commanding General of the Army Corps of Engineers.”  “The agency – not an individual employee of the agency – is the proper Defendant in a FOIA action.”

• Exemption 5, Foreseeable Harm and Other Considerations:  “The Court agrees with [plaintiff] that the Corps has failed to justify most of its deliberative process withholdings because it has not satisfied FOIA’s foreseeable harm requirement for those records.”  The court finds that “the Corps’ Vaughn indices make almost no effort to articulate what harms would result from the disclosure of the withheld records.”  “The majority of the entries in the Corps’ indices that deal with the deliberative process privilege make no mention of foreseeable harm.”  “Moreover, the entries that do purport to describe a foreseeable harm mostly do so only in broad, non-specific language.”  “Finally, although it is true that the Court may consider the context and content of the information at issue in order to find that the foreseeable harm requirement has been satisfied, . . . there is nothing in the Corps’ Vaughn indices to suggest the kind of sensitivity or stakes that would lead the Court to conclude that the release of the relevant records would harm the interests the deliberative process privilege was intended to protect.”  Moreover, “the statements in the Corps’ declarations offer nothing more than a restatement of the privilege’s general purpose, with no effort to link that purpose to ‘the information at issue.’”  “As for the fact that the declarations suggest that the release of agency emails, as a category, would undermine the confidence of agency officials in their ability to use email, the Court finds that the category of ‘all emails’ is too broad to satisfy the categorical approach to the foreseeable harm requirement.”  “The Court therefore concludes that the Corps has failed to satisfy the foreseeable harm requirement as to nearly all the materials it withheld under the deliberative process privilege.” 
  
  “That said, the Court does not find that the Corps has failed to satisfy the foreseeable harm standard for all its deliberative process withholdings.”  “The Court has reviewed the agency’s Vaughn indices line-by-line and identified [certain] records for which the Corps did provide a sufficiently particularized description of foreseeable harm to satisfy the requirements of FOIA.”  “Specifically, the Corps has identified several pre-decisional records that differ from the final analysis adopted from the agency, the release of which has the potential to cause ‘public confusion.’”
   
• Exemption 5, Attorney-Client Privilege; Attorney Work-Product Privilege; Foreseeable Harm and Other Considerations & Litigation Considerations, “Reasonably Segregable” Requirements:  “Regarding the attorney-client and work-product privileges, the Court makes the following findings.”  “First, the Court concludes that the Corps has adequately explained why those privileges apply to the withheld records.”  “Second, the Court determines that the agency has adequately articulated the harm that would result from disclosure of those records.”  “Finally, the Court finds that the agency has shown that it released all reasonably segregable information from the affected records.”  “[Plaintiff] argues that the blanket statements made in the Corps’ declarations – averring across-the-board that the communications that were withheld under the attorney-client privilege were never shared with third parties – are insufficient to establish that each communication was confidential, particularly in light of the fact that the Vaughn indices do not identify specific authors for many of the withheld records.”  The court finds that “[plaintiff] has submitted nothing to rebut the declarations’ statements that the communications that were withheld under the attorney-client privilege were confidential because they were not shared with third parties.”  “[Plaintiff] offers no evidence that any of the records at issue were ever shared with individuals outside the agency.”  “Nor is the agency necessarily required to name the author of each document to successfully assert the attorney-client privilege, particularly given that the declarations and indices repeatedly state that the communications were between an attorney and their client (with the implication that the non-attorney parties to the communication were agency personnel).”  “Finally, the fact that some of the communications appear to incorporate some non-confidential information does not change that fact that the communications themselves are privileged.”  “As for [plaintiff’s] second argument – that the Corps has not established that the communications were for the purpose of obtaining legal advice – the Vaughn indices consistently show that the communications at issue involved legal questions.”  “Moreover, two of the agency’s declarations describe long-term, ongoing litigation involving the subject matter of these FOIA requests – some of which involves [plaintiff] itself as plaintiff.”  “Thus, the statements in the Corps’ declarations, together with the presumption of good faith that the Court affords such declarations . . . [are] sufficient to establish that the withheld material is privileged."
  
  “Next, the Court finds the Corps has met its burden to articulate the harms that would result from disclosure of its attorney-client and work-product withholdings.”  “As was the case with the Corps’ deliberative process withholdings, the Corps’ Vaughn indices do not include specific explanations of the foreseeable harm associated with each record.”  “However, here the Court finds that the statements of foreseeable harm that are included in the Corps’ declarations – considered in context – are sufficient to satisfy that requirement.”  Regarding the attorney-client privilege, the court relates that defendant stated that “‘[t]he ability to seek and obtain candid legal advice via the review of and comment on draft documents would be harmed by the release’ of [the at issue] records.”  “Moreover, the declarations’ descriptions of ongoing and anticipated litigation involving not only the same subject matter that is at issue in these requests, but potentially the same litigants, . . . establishes an even more concrete harm – that the very records [plaintiff] is requesting here would be at issue (and therefore privileged) in actual litigation against [plaintiff].”  “Disclosure in this case would result in waiver of that privilege.”
  
  “Regarding the work-product privilege, the Corps’ declarations each explain that ‘it would foreseeably harm the integrity of the adversarial system should adversaries be entitled to probe each other's thoughts and plans concerning a case in litigation or litigation that is fairly foreseeable.’”  “In addition to that generalized statement, the Court is permitted to consider the context that Corps also provides in its submissions.”  “It is not sufficient for the Corps to assert that, because it faces frequent litigation of its decisions, all materials prepared by its attorneys are protected by the work-product privilege.”  “However, in this case, [plaintiff] faces the prospect of actual litigation involving the same subject matter against the same Plaintiff.”  “That strongly suggests that the Corps’ being ordered to disclose materials it withheld under the work-product privilege would force the agency to divulge to [plaintiff] (and to the public) its preparation for anticipated litigation with [plaintiff].”  “That is sufficient for the Court to conclude that disclosure of the withheld records would harm the interests the work-product privilege was intended to protect.”
  
  Finally, “the Court finds that the Corps has met its burden to establish that it released all reasonably segregable information from the affected records.”  “Each of the Corps’ declarations includes a statement that the declarant personally conducted a document-by-document review of the withheld materials to search for segregable material, and that any such material was ‘inextricably intertwined with exempt information’ such that disclosure would be impossible.”