Hefferman v. Azar, No. 15-2194, 2019 WL 5215546 (D.D.C. Oct. 16, 2019) (Walton, J.)

Hefferman v. Azar, No. 15-2194, 2019 WL 5215546 (D.D.C. Oct. 16, 2019) (Walton, J.)

Re:  Request for records concerning HHS's Department of Spiritual Ministry

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

• Procedural Requirements, Searching for Responsive Records:  "[T]he Court finds that the defendant's renewed search for [certain] PowerPoint presentation was reasonable."  The court relates that it previously found that "'[a]lthough the defendant's declarations sufficiently identif[ied] the search terms used, they [did] not provide the requisite averment that all locations likely to contain responsive documents were searched' . . . ."  Responding to plaintiff's objections, first, "the Court finds that the defendant has sufficiently demonstrated why the use of certain compound search terms was appropriate."  The court relates that "plaintiff argues that the defendant's use of compound search terms in his search for the PowerPoint presentation was not reasonable because '[t]he search results [are] necessarily [ ] limited by those records which only contained all words, rather than any such keyword, making this the opposite of a reasonable search.'"  The court finds that "[a]lthough some courts have found that the use of compound search terms may render an agency search inadequate, . . . '[t]h[ose] requirements . . . exceed those imposed by the ‘reasonableness’ standard followed in this Circuit' . . . ."  "[T]he Court finds that the defendant has sufficiently demonstrated why the use of certain compound search terms was appropriate."  "Moreover, in instances where the defendant concluded that the use of compound search terms was not appropriate, he ran additional searches utilizing individual search terms."  Second, responding to plaintiff's argument that defendant failed to use certain search terms, [a]fter comparing the search terms used and what was sought in the plaintiff's FOIA request, . . . and the supplement to his FOIA request . . . the Court concludes that the '[d]efendant[ ] properly exercised [his] discretion in crafting [a] list[ ] of search terms that [he] believed to be reasonably tailored to uncover documents responsive to the FOIA request.'"  The court relates that "[a]ccompanying his renewed motion for summary judgment, the defendant provided the Court with a list of the search terms that he used to locate documents responsive to the plaintiff's request with respect to the PowerPoint presentation, . . . and in response to the plaintiff's opposition to the defendant's renewed motion for summary judgment, he ran additional searches using additional search terms . . . ."  Finally, regarding plaintiff's objections concerning the custodians searched, the court finds that, "[a]s to this aspect of the defendant's search for responsive records, the defendant has complied with the plaintiff's request to 'identify exactly which custodians and locations have been searched for th[e] 2007 Power[ ]Point presentation.'"  "Based on this representation, the Court concludes that the defendant properly 'limit[ed] [his] search to only those locations where responsive documents likely are maintained.'"
  
  For similar reasons, and after discussing in brief plaintiff's same three objections concerning the adequacy of the search, "the Court concludes that the defendant's search for . . . [a] response to a July 27, 2009 email [sent by the Chief of the Spiritual Ministry Department] was adequate."
   
• Exemption 5, "Inter-Agency or Intra-Agency" Threshold Requirement:  "[T]he Court concludes that the consultant corollary is applicable and that the defendant did not waive his right to assert the applicability of the deliberative process privilege to the draft press release by sending the draft release to [an outside party]."  The court finds that "the 'indicia of consultant relationship' between [the party] and the defendant is evidenced by [an] . . . April 27, 2008 email [from the government] to [the party] 'affirmatively solict[ing] [the party's] advice in aid of agency business.'"  "The facts that, according to the plaintiff, 'there was no discussion of [ ] [the party] becoming a "consultant" for the [Operational Review Team] until May 3, 2007' and [the party] was not [ ] provided with any paperwork to become a "Special Government Expert" [ ] until June 18, 2007,' . . . do not undercut the indicia of a consultant relationship . . . ."
   
• Exemption 5, Deliberative Process Privilege:  "[T]he Court concludes that the draft press release is covered by the deliberative process privilege."  "[T]he Court has already concluded [in an earlier opinion] that the draft press release was pre-decisional, . . . and therefore need only to address now whether the draft press release was also part of the deliberative process."  "The Court finds that the draft press release was deliberative with respect to the policy decision regarding whether to issue a press release concerning the operational department reviews."  The court finds that "'discussions regarding how to present an agency decision to the public [are] covered by the deliberative process privilege.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  Regarding the draft press-release in general, "[b]ecause the factual information contained in the draft press release “was assembled through an exercise of judgment,” . . . the Court concludes that the factual information contained in the draft press release is properly withheld pursuant to Exemption 5."  The court finds that "defendant's declarant makes clear that the factual material contained in the draft press release 'reflect[s] [the defendant’s] preliminary positions or ruminations about how to exercise discretion' regarding whether and how to present the information regarding the operational department review to the public."
  
  More generally, the court finds that "in addition to the defendant's declaration attesting that all segregable information has been released, . . . the defendant also provided in his Vaughn index a detailed description of the factual information in those pages that was withheld, . . . which allows the Court to conclude that the defendant has met his segregability obligations regarding these pages."  "[A]s to forty-seven of the forty-nine pages that were withheld in full, . . . a closer question is presented as to whether the defendant has satisfied his segregability obligations."  "Because the plaintiff has not provided the Court with any reason to question the defendant’s representations, and the defendant 'describ[ed] the [withheld information] in general terms, invoke[d] the deliberative process privilege, and state[d] that the agency conducted a line-by-line review of the [withheld information] to ensure that it contained no segregable, nonexempt information[,] [and] [ ] further state[d] that any "purely factual" portions of the [withheld information] could not be extracted[,]'" . . . the Court concludes that the defendant has “provid[ed] the Court with the minimum information needed . . . to ensure that [the withheld information] contained no segregable, nonexempt information' . . . ."