Louise Trauma Ctr., LLC v. DOJ, No. 20-3517, 2022 WL 278771 (D.D.C. Jan. 30, 2022) (Contreras, J.)

Louise Trauma Ctr., LLC v. DOJ, No. 20-3517, 2022 WL 278771 (D.D.C. Jan. 30, 2022) (Contreras, J.) 

Re:  Request for "all records . . . concerning Office of Immigration Litigation training materials for lawyers in the appellate section" and for studies and analyses of foreseeable harm standard

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  "Although the agency has provided a Vaughn Index, the information provided is insufficient to allow the Court to make a de novo determination about the appropriateness of the withholdings."  "The Court cannot discern from the information provided which documents are exempt under which categories, and the limited information provided suggests that it is unlikely 'that all of the information is equally exempt under all of the alleged exemptions.'"
   
• Litigation Considerations, Adequacy of Search:  "The Court is satisfied that DOJ has conducted an adequate search with respect to [plaintiff's request for studies and analyses of foreseeable harm standard] and will grant partial summary judgment to DOJ on this issue."  "[Defendant's declarations] state that DOJ searched its 'T drive,' which 'is where all cases, documents, records, guidance, and templates are maintained related to the processing of FOIA requests.'"  "It used the search terms 'foreseeable harm' and 'foreseeable harm standard,' and did not limit the search by time period even though the request only asked for records from June 2015 to the date of the request."  "Those terms, and that location, were 'reasonably calculated' to uncover responsive records."
  
  "[Plaintiff, challenging the Civil Division's search,] argues that because the FOIA Improvement Act of 2016 changed the law when adding this standard, it 'must have provoked a response inside the Department of Justice,' and that the failure to have created responsive documents is tantamount to an admission that DOJ ignored an act of Congress."  Defendant contends that "[f]irst, because OIP 'is responsible for overseeing agency compliance with FOIA and developing government-wide policy guidance on all aspects of FOIA administration,' . . . it [rather than the Civil Division] 'was the appropriate entity' that would have responsive records."  "Second, 'the foreseeable harm standard' was 'actually created in 2009 [and] the FOIA Improvement Act of 2016 merely codified the already-existing DOJ standard,' meaning that 'the documents requested by Plaintiff . . . are outside of the time frame requested by Plaintiff' and in fact were publicly available online."  "The Court . . . finds no reason to doubt DOJ's assertion."     
   
• Litigation Considerations, Summary Judgment:  "Because it is plausible, and even likely, that some of the asserted privileges could apply to some of the documents, the Court will afford DOJ a second opportunity to discharge its burden by submitting evidence that more specifically describes which documents are being withheld pursuant to which asserted privileges and providing factual matter sufficient to establish the necessary elements for those privileges—and, with the benefit of the reasoning in this opinion, releasing or partially releasing any documents that were not properly withheld."
   
• Exemption 5, Attorney Work-Product Privilege:  "DOJ relies on the deliberative process privilege, attorney work product privilege, and attorney-client privilege to justify its withholdings under Exemption 5 for all 4,168 pages and 12 videos that it withheld in all five categories [of training materials]."  "DOJ likens its training materials to the . . . category of documents that 'advise the agency of the types of legal challenges likely to be mounted against a proposed program, potential defenses available to the agency, and the likely outcome.'"  "But nothing in the Index discusses a DOJ policy or program that might be challenged, rather, the potential litigation DOJ alludes to appears to be appeals of routine removal cases."  "That is undoubtedly litigation, but of a different variety than trying to anticipate the potential 'legal vulnerabilities' of an agency program." 
  
  "[T]he D.C. Circuit has in some instances found materials designed to guide 'attorneys on one side of an adversarial dispute' on 'how to respond to the other side's arguments, which cases to cite, and what material to turn over and when to do so, among numerous other practical and strategic considerations' to be protected by the attorney work product privilege."  "In doing so, the Circuit has affirmed that privileged material need not correspond to a specific claim if its 'disclosure . . . risks revealing DOJ's litigation strategies and legal theories regardless of whether it was prepared with a specific claim in mind.'   The court notes that "[i]t is possible, based on the listed descriptions, that many of the training materials provide strategy in furtherance of OIL-App's 'adversarial function,' much like the litigation guide for federal prosecutors at issue in [a prior court decision] or the guidance memos at issue in [a prior court decision]."  However, "any training for agency litigators is in some sense 'in anticipation of litigation' and has an 'adversarial function,' . . . , but taken too far, that interpretation risks running afoul of the bedrock mandate to construe FOIA exemptions narrowly."
  
  The court finds that "[a]lthough many of the documents described in the Vaughn Index are likely protected, DOJ's broad assertions do not do enough to convince the Court that every withheld document would risk revealing protected litigation strategy or legal theory."  "At least some of the items listed in DOJ's Vaughn Index seem closer to the 'neutral, objective analyses' of the relevant law that is not protected."  "The Court is especially skeptical of DOJ's assertion of the attorney work product privilege [for certain new attorney training materials]."  "Those topics are 'literally "in anticipation of litigation"' in the sense that they teach new agency lawyers how to manage their cases, but they do not 'anticipate litigation in the manner that the privilege requires.'"  "[These training materials] discuss purely administrative issues."
  
  "DOJ's conclusory, across-the-board assertions of privilege suggest that the agency has not sufficiently attempted to [segregate non-privileged factual information] here."  "Rather, DOJ argues that segregability is never required when the attorney work-product privilege is asserted, and that because it has asserted that privilege over all 4,168 pages and 12 videos, it need not conduct segregability analysis for any of them."  The court notes that "there must be something more than the agency's conclusory labeling of a document as attorney work product to establish that the document is in fact 'fully protected' as such."  "Facts can rarely be separated from analysis in typical attorney work product because most attorney work product involves analyzing concrete facts as they relate to a specific claim."  However, the court relates that "[t]he fact/analysis division is less helpful here, where at least some of the analysis in the training materials appears to apply to generalized or hypothetical facts."  "The training materials here in many instances appear to apply the law to hypothetical or generalized scenarios, or include at least large sections that are 'neutral, objective analyses' of the relevant law that is not privileged."  "DOJ should therefore evaluate in its second opportunity whether each document is in fact 'fully protected as work product,' [] or whether it contains more neutral and educational portions that could be partially released."    
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "DOJ also falls short of its burden for asserting the deliberative process privilege for these materials."  "The deliberative process privilege does not usually extend to training materials because 'training is not a step in making a decision; it is a way to disseminate a decision already made.'"  The court notes that "although give-and-take conversations may have occurred at the training, the deliberative process privilege would only protect the withheld materials if the documents themselves reflected that deliberative process."  However, "The Court considers it unlikely that all of the prepared training documents such as agendas, handouts, or slides themselves contain that type of iterative process."
       
• Exemption 5, Attorney-Client Privilege:  The court holds that "DOJ has not provided enough information for the Court to discern if attorney-client privilege covers any of the various training documents."  "Although an agency may sometimes be a client, [] here the agency was training its attorneys rather than seeking guidance from the position of a client."  "Furthermore, the government does not show how the materials either were made in a legal advisory capacity nor how they were confidential."    
   
• Exemption 6:  "DOJ also asserted Exemption 6 . . . for 'personal information, including internal DOJ email addresses not available to the public, and office locations[.]'"  "[Plaintiff] does not contest DOJ's assertion of Exemption 6, and the documents can presumably be released in part with the protected information redacted."  "DOJ may therefore continue to rely on Exemption 6 to withhold the described information if necessary but should indicate with specificity where and how it has done so on its next Vaughn Index."