Law.’s Comm. for C.R. v. OMB, No. 18-645, 2023 WL 3433978 (D.D.C. May 12, 2023) (Sullivan, J.)

Law.’s Comm. for C.R. v. OMB, No. 18-645, 2023 WL 3433978 (D.D.C. May 12, 2023) (Sullivan, J.)

Re:  Request for records concerning decision to halt initiative for collection of pay data from employers by EEOC

Disposition:  Granting defendant’s motion for summary judgment

• Exemption 5, Deliberative Process Privilege & Litigation Considerations, Vaughn Index/Declaration:  The court relates that “OMB has invoked the deliberative process privilege to withhold 23 documents in full and 42 documents in part.”  “There is no dispute that the withheld information is predecisional.”  “The Court agrees with this assessment because the documents are ‘antecedent’ to OMB’s decision to issue the review-and-stay memorandum.”  Responding to plaintiff’s argument that “the agency has produced insufficient evidence to support the privilege,” the court finds that “[t]he Vaughn index gives document-specific descriptions for all documents withheld pursuant to the deliberative process privilege.”  “[A] Vaughn index is not inadequate simply because an agency grouped similar documents into a single category and provided the same reason for withholding information across that category . . . .”  “Here, OMB has appropriately grouped its withholdings into two categories:  (1) inter-agency or intra-agency email communications; and (2) draft documents.”  “OMB justifies its withholdings in each category with one of the three explanations . . . .”  “The Court concludes that this approach is adequate to establish that the withheld documents are deliberative.”
  
  Additionally, the court relates that “Plaintiffs argue that OMB’s evidence is inadequate because its assertions are conclusory.”  “OMB identifies the deliberative process involved for all its withholdings:  ‘a decision-making process conducted among staff in OMB or in consultation with other components of the Executive Office of the President and Executive Branch agencies pursuant to authority delegated to OMB by the Paperwork Reduction Act, 44 U.S.C. §§ 3501–3521, over the approval of collection of information by the federal government’ in service of ‘OMB’s then-pending decision by OMB on whether to issue a letter initiating a review and stay of the EEO-1 form.’”  “The first category of withholdings consists of inter-agency or intra-agency email communications that OMB withheld in part.”  “OMB describes the role these emails played in the deliberative process as ‘deliberations internal to the Executive Branch regarding OMB’s then-pending decision whether to issue a review and stay of the EEOC’s pay data collection that was under consideration among staff at the time of the discussion.’”  “The agency has also produced the date, subject line, sender(s), and recipient(s) of each email, thereby providing specific contextual information about each email.”  “The Court concludes that OMB has supplied sufficient detail to justify the deliberative role of these email communications.”  “The second category of withholdings consists of draft documents that OMB withheld in full. In the Vaughn index, OMB explains the role these documents played in the deliberative process as ‘draft[s] in the process of revision that do not reflect final agency decisions but are part of a decisionmaking process regarding OMB's decision whether to issue a review and stay of the EEOC's pay data collection.’”  “In its briefing and declarations, the agency further clarifies that these draft documents played two roles in the deliberative process:  (1) the drafts ‘were “part of both a decisionmaking process regarding the final composition of such documents”’; and (2) the drafts ‘were “part of . . . the larger decisionmaking process regarding OMB’s decision whether to issue a review and stay of the EEOC’s pay data collection.”’”
   
• Exemption 5, Foreseeable Harm and Other Considerations:  “[T]he Court concludes that it is reasonably foreseeable that specific harms will result from disclosure of the withheld documents.”  The court relates that, “[t]o meet its burden, OMB groups the documents and discusses the specific foreseeable harms of disclosure on a category-by-category basis.”  “These groups correspond with the three phases of deliberation preceding the agency’s August 2017 review-and-stay memorandum:  (1) ‘high-level deliberations among Executive Branch officials whether to begin in earnest consideration of issuing a review-and-stay memorandum’; (2) ‘coordination between the EEOC and OMB culminat[ing] on July 14, 2017, when the EEOC submitted a formal petition to OMB asking it to issue a stay of the EEO-1 collection’; and (3) ‘preparation and issuance of the review-and-stay memorandum.’”  The court finds that, “[a]s Plaintiffs concede . . . this ‘categorical approach’ is permissible.”  “OMB next identifies two harms that are foreseeable if the withheld documents are disclosed.”  “First, the agency argues that disclosure ‘can be reasonably expected to chill candid discussions within OMB and among OMB and other Executive Branch agencies.’”  “OMB’s declarant[] articulates the link between this harm and each category of withheld documents in a third declaration.”  “As to the first category, [defendant] draws a direct link between agency staff’s ‘awareness of, and confidence in,’ the deliberative process privilege and their ‘willingness . . . to offer immediate impressions and contrary arguments about matters before the government.’”  “[Defendant] then points to the specific documents to clarify [its] point.”  “As to the second category, [defendant] states that disclosure of these inter-agency communications would inhibit OMB’s ability to have frank and open discussions on policy matters with other parts of the Executive Branch.”  “[Defendant] explains that OMB staff make communications like the ones at issue here ‘[o]n a daily basis’ and that OMB policy officials rely on these communications to inform decision makers.”  “[Defendant] again describes the link between the harm and the specific documents in this category.”  “[Defendant] states that disclosure of the third category of withholdings ‘would lead OMB staff to withhold their candid opinions concerning these types of decisions’ because these documents reveal ‘the initiation, timing, scope, participants, drafting, and publication of decisions.’”  “Specifically, [certain Vaughn index entries] are unfinished drafts whose disclosure would expose ‘the changes that were suggested by specific staff[ ] and . . . the drafting process as a whole, which would likely diminish the candor that drafters would incorporate into their comments.’”  “The Court is unpersuaded by Plaintiffs’ argument and concludes that OMB has adequately linked the harm to OMB’s inter-agency and intra-agency discussions to the specific information withheld here.”  “OMB also asserts a second harm:  that ‘releasing [its] deliberative communications would cause public confusion about [its] motives for or reasoning of the final decision in question.’”  “Although the briefing seems to suggest that this harm would result from disclosure of any withheld document, [defendant] explains how public confusion would ensue from disclosure of only the third category of withholdings . . . .”  “[Defendant] states that release of the draft documents in [certain Vaughn index entries] would cause public confusion because those documents contain arguments for and against certain text as well as changes, comments, and edits.”  “Revealing this information, [defendant] continues, ‘would be likely to create incorrect impressions in the public about the intentions behind this record’ and would ‘decreas[e] the certainty the public would have in interpreting it.’”  “[Defendant] also states that disclosure of [certain Vaughn Index entries] which are ‘clean’ drafts without any visible edits, comments, or ‘draft’ labels, ‘could . . . diminish[ ] the public’s certainty in the veracity of records purporting to be OMB’s actual policy document.’”  “The Court concludes that this second harm is also reasonably foreseeable from disclosure of the withholdings.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  “The Court concludes that OMB has satisfied its segregability obligations.”  “The Court rejects Plaintiffs’ argument that ‘[defendant’s] declaration fails to establish that none of the withheld information could be segregated and produced[]’ . . . because [defendant’s] declaration explains that here, the ‘facts are inextricably intertwined with deliberative discussion, opinions, and policy recommendations, such that disclosing any facts, and how they are presented, would reveal the thought processes of OMB during deliberations.’”  “‘Thus, [defendant has] determined that disclosure of such factual material would reveal the nature and substance of the agency deliberations.’”  “And the Court disagrees that OMB’s justifications for withholding factual information ‘are simply not credible,’ . . . because OMB has explained that here, ‘the facts themselves reflect the Agency’s deliberative process.’”  “For these reasons, OMB has demonstrated that disclosure of the factual information would inevitably reveal the government’s deliberations.’”