Hardy v. ATF, No. 15-1649, 2017 WL 1102649 (D.D.C. Mar. 22, 2017) (Howell, C.J.)

Hardy v. ATF, No. 15-1649, 2017 WL 1102649 (D.D.C. Mar. 22, 2017) (Howell, C.J.)

Re: Request for records concerning policies on registered handguns and documents given to OIG in connection with OIG report on National Firearms Registration and Transfer Record ("NFRTR")

Disposition: Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgement

• Exemption 5, Deliberative Process Privilege: The court finds that OIG properly withheld "the first category of documents, 'records of interviews and notes of telephone interviews[.]'" The court finds that, "[f]irst, to the extent information in the documents includes 'recommendations' or 'opinions on legal or policy matters,' they are clearly 'deliberative' in nature and non-disclosure is permissible under Exemption 5." "Second, even if the documents contain 'purely factual material,' that information is still covered by Exemption 5 because it would reveal the agency's deliberative process." "The 'Records of Interviews' and 'Telephone Interview Notes' in this case are factual summaries 'culled by [OIG] from [a] much larger universe of facts presented to it' and therefore 'reflect an "exercise of judgment as to what issues are most relevant to the pre-decisional findings and recommendations."'" The court does reject one of defendant's arguments and finds that "[g]iven the significant number of interviewees, and the availability of redacting identifying information from the documents, the possibility of linking any individual to a particular document is not a colorable risk that would warrant withholding." "Thus, this rationale does not support the application of Exemption 5." The court also holds that OIG properly withheld a draft document because "disclosure of the 'Survey Draft' would divulge information regarding 'decisions to insert or delete material or to change [the] draft’s focus or emphasis' and thus 'would stifle the creative thinking and candid exchange of ideas necessary to produce good . . . work[.]'" Additionally, the court holds that "[an] 'Interview Workpaper' falls under Exemption 5." "Even if the document contains purely factual material derived from interview notes, this document was prepared by 'culling' information 'from [a] much larger universe of facts,' namely the interviews, and thus 'reflect[s] an exercise of judgment.'" "Indeed, the document is a 'spreadsheet' that analyzes the very interview responses this Court has already held to be deliberative."
  
  However, the court also finds that, "[g]iven that OIG has already produced in [a] [National Firearms Registration and Transfer Record ("NFRTR")] Report [certain] survey questions in their entirety, and [certain] results and data in part, to withhold the remaining survey results and data, OIG must explain how the withheld information is 'different from those released in any relevant respect.'" "Otherwise, '[w]hatever chilling effect may be caused by release of the survey results [and data] . . . is already present.'" "Thus, with respect to the 'Survey Results' and 'Final Survey Data,' OIG's motion for summary judgment is denied and the plaintiff's cross-motion is granted."
  
  The court also holds that, "given the insufficient information about the nature of the documents, there is a genuine dispute as to the material fact of whether the 'Survey Question Analysis' and 'Final Survey Data Analysis' documents include deliberative information." "Thus, the parties' cross-motions are denied, without prejudice, with respect to these documents." The court finds that "OIG has failed to provide a particularized account of the 'Final Survey Data Analysis' and a specific rationale for its nondisclosure." "Indeed, with respect to both the four 'Survey Question Analysis' documents and the single 'Final Survey Data Analysis' document, OIG has not provided 'precisely tailored' descriptions of 'what deliberative process [was] involved' in drafting the documents or 'the role played by the documents . . . in the course of that process.'" "Merely including the word 'analysis' in a document's description is insufficient." Similarly, the court also holds that, "[w]ith respect to [a] 'Workpaper Index and Assignments Worksheet,' [along with several other similar documents,] OIG has not met its burden of demonstrating that this document is subject to nondisclosure under Exemption 5." "As there is a high likelihood that some of the information in the 'Workpaper Index and Assignments Worksheet' has already been disclosed in the NFRTR Report, and thus is 'completely harmless,' this 'suggests that other information in the [document] also might be released without threatening [OIG's] deliberative process.'" Also, "OIG has not met its burden of showing that 'no reasonably segregable information exists within the document[.]'"