Monday, September 30, 2013
Re: Request for records concerning appointment of CFPB's director Disposition: Granting defendant's motion in part and granting plaintiff's cross motion in part
- Exhaustion: The court finds that plaintiff constructively exhausted its administrative remedies. "CFPB only provided plaintiff with the notice of the right to appeal in its June 8 letter." "However, because this letter was issued after plaintiff initiated this lawsuit, it cannot be used to cure CFPB's failure to timely respond to FOIA requests."
- Exemption 5 & Deliberative Process Privilege & Attorney Work Product Privilege: The court holds that CFPB properly withheld two emails discussing briefing materials pursuant to the deliberative process privilege. "The CFPB's declaration and Vaughn index indicate that the withheld documents contain talking points and briefing materials, including recommendations for how to answer questions about the CFPB, that were prepared by Bureau employees for the consideration of decision makers at Treasury." "Internal communications regarding how to respond to media and Congressional inquiries have repeatedly been held to be protected under the deliberative process privilege." The fact that one attachment to the emails is named "final.dox" does not persuade the court that these materials were not properly withheld as deliberative. The court denies CFPB's request for summary judgment with regard to its withholding of an email between a White House official and CFPB pursuant to Exemption 5 and the deliberative process privilege. The court reasons that "because FOIA's deliberative process privilege applies to certain employees working in the White House but not to all, the application of the privilege hinges on what capacity in the White House [the official] worked, and for what office." "The Bureau's declaration and Vaughn index do not provide this information." Accordingly, the court cannot grant summary judgment with respect to this withholding. The court also concludes that CFPB properly withheld certain email communications between CFPB employees and DOJ attorneys discussing anticipated litigation concerning the recess appointment of CFPB's director pursuant to the attorney work product privilege. "CFPB's affidavit and Vaughn index consistently demonstrate that the documents were prepared in reasonable anticipation of litigation challenging the appointment of Director Cordray." "It is a matter of public record that the legality of the appointment was immediately questioned by some members of Congress, and the recess appointments of three members of the National Labor Relations Board made on the same day as Director Cordray's were the subject of litigation in this court within two weeks thereafter." "The emails at issue here were written within one to four weeks following the recess appointment; they involve the Justice Department attorneys authorized to represent the Bureau in litigation; and they are described in the Vaughn index as containing advice and analysis regarding potential legal challenges to the appointment."
- Presidential Communications Privilege: The court holds that email exchanges between White House employees and CFPB employees were properly withheld pursuant to the presidential communications privilege. "Communications generated in the course of advising the President in the exercise of his appointment and removal power are clearly protected by the presidential communications privilege."
Updated August 6, 2014