Judge Rotenberng Educ. Ctr., Inc. v. FDA, No. 17-2092, 2019 WL 1296957 (D.D.C. Mar. 21, 2019) (Howell, J.)

Judge Rotenberng Educ. Ctr., Inc. v. FDA, No. 17-2092, 2019 WL 1296957 (D.D.C. Mar. 21, 2019) (Howell, J.)

Re:  Request for records concerning proposed ban of Graduated Electronic Decelerator

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 judgment

• Procedural Requirements & Litigation Considerations:  The court relates that "[t]he defendants agree that their initial production, which redacted non-responsive information within responsive records, violated [the] rule ["that an agency in receipt of a FOIA request need not produce non-responsive records, but must nonetheless release non-responsive information within a responsive record"].  "To correct the problem, the defendants 're-reviewed their redactions of non-responsive material, and have unredacted and released non-exempt material within responsive records that was originally redacted on non-responsiveness grounds.'"  "Yet, the defendants continue to withhold some non-responsive information because they deem that information to 'so distinct in the document from the responsive material as to constitute a separate "record."'"  "Here, if the defendants had committed to a consistent understanding of when information should be treated as a single agency record, or separated into multiple agency records, that understanding could have prompted focused judicial review."  "Yet, the defendants' withholding of non-responsive information in this case suffers a more fundamental problem: midway through litigation the defendants reclassified collections of information that had been treated as one agency record as multiple agency records."  "The defendants' reclassifications are even more troubling because many were done to split emails and their attachments into multiple records."  The court finds that "ubiquitous email practices suggest that agencies will struggle to justify separating an email and its attachments into multiple records."  "Of course, from time to time emails are sent with the wrong attachment, but in the ordinary course an attachment is included with the email because it relates to the body of the email."  "Though not a per se rule, ordinary practice leaves very little wiggle room in generally requiring an email with attachments to be kept together as a single record."  "Here, however, the defendants need not be given the chance to explain why some emails and attachments should be considered as distinct records because reclassifying records midway through litigation is improper."  "Accordingly, the defendants must release all records currently listed on the third Vaughn Index as being withheld for non-responsiveness that are not also subject to a FOIA statutory exemption."
   
• Exemption 5, Deliberative Process Privilege:  First, regarding plaintiff's argument "that the absence of dates associated with records is a problem that renders the defendants' Vaughn indices 'structurally deficient[,]'" the court finds that "'[d]ates are but one way to illustrate a chronology, and the FDA may have other ways to prove that the undated documents were indeed predecisional.'"  "In the end, as discussed in the next section, the defendants' Exemption 5 justifications may be inadequate, but the absence of a date is not the problem."  Second, the court finds that "defendants must update their Vaughn Indices to identify with adequate specificity the agency decision to which a record relates."  The court explains that "defendants' effort to define the deliberative process so broadly is rejected because the withheld records may in fact pertain to a litany of subsidiary decisions that defendants fail to acknowledge."  "Without the defendants acknowledging these subsidiary decisions or tying records to those specific decisionmaking processes, the Court cannot be sure that a record related to 'agency action' or 'agency work on particular topics' is in fact predecisional."  Third, "[c]ontrary to the defendants' position, explaining decisionmaking authority is an essential ingredient to justifying withholdings under the deliberative process exemption."  "Thus, the defendants next Vaughn Index must explain the dynamic between the author or individual sending, and the individuals receiving, the withheld record at issue to meet the requirement that record was part of the deliberative process."  The court explains that "the effort that the defendants must undertake to identify the authority of individuals attached to a given record is not as daunting as defendants fear."  Finally, the court holds that "defendants are entitled to partial summary judgment for the draft records withheld under Exemption 5."  The court explains that while "[d]ocuments designated as 'drafts' are not per se covered under the deliberative-process privilege," "a draft does not lose its deliberative character by resembling the version that ultimately becomes the working law, but rather its deliberative character is lost if the draft – formally or informally – becomes the working law."
   
• Exemption 6:  The court holds that "defendants have not met their burden because they have forgone a necessary step in Exemption 6's balancing standard – properly defining the interests on either side of the equation."  "Redacting the identities of individuals who have publicly associated themselves with the very views that redaction intends to shield, without considering how that welcomed publicity changes the privacy interest, improperly ascribes a uniform privacy interest to one's identity and ignores a fact that minimizes any asserted privacy interest."  "Here, the unaccounted for conduct was taken by the individuals whose privacy is on the line."  "Factoring that context is consistent with the privacy interest belonging to the individual."  The court finds that "defendants must also take a more nuanced approach to assessing the public's interest in the disclosure of identities."  "To say that the defendants have not conducted the necessary balancing is not to say that the agency will not, eventually, be able to 'support redacting identifying information in all cases if its justifications for doing so were framed in a more targeted manner.'"  "The defendants must provide the Court with the information needed to engage in that balancing inquiry."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "defendants here have provided a sufficiently detailed justification."  "The defendants have submitted eight affidavits, each certifying to the represented FDA or HHS component's performance of 'a careful page-by-page, line-by-line review of all records.'"  "The same affidavits confirm that all reasonably segregable information has been disclosed."