Moeller v. EEOC, No. 19-2330, 2021 WL 1025815 (D.D.C. Mar. 17, 2021) (Friedrich, J.)

Moeller v. EEOC, No. 19-2330, 2021 WL 1025815 (D.D.C. Mar. 17, 2021) (Friedrich, J.)

Re:  Request for records concerning "'experience caps' in employment advertisements"

Disposition:  Denying defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  First, the court holds that "the [search] timeframe [of 2010 to 2020] was imposed entirely by the Commission – it has no basis in [plaintiff's] original request."  "[Plaintiff] points out that the Commission has administered the relevant regulation about which he requested information for over forty years."  "And the Commission has provided no record support for why its limitation was reasonable in light of [plaintiff's] broad request, which included no time limit."  "Accordingly, a dispute of fact exists as to whether the search adequately sought out all responsive documents given the existence of likely responsive pre-2010 documents."  Second, the court finds that "[t]he Commission's argument that its search was adequate because of the high volume of records it released does not change this result."  Third, the court relates that "[plaintiff] further challenges the adequacy of the search by pointing to documents from a 1994 investigation and lawsuit that he asserts should have been included in the Commission's releases."  "But '[i]t is long settled that the failure of an agency to turn up one specific document in its search does not alone render a search inadequate.'"  "What is more, the Commission stated in its declaration that the particular documents are no longer in its custody . . . ."  "Given that the 1994 documents are outside of the Commission's custody and control, [the court finds that] it bears no obligation to produce them."  Fourth, "[a]s to the specifics of the Commission's search terms, [plaintiff] notes that the Commission failed to include the relevant Code of Federal Regulations citation, or include the word 'advertisement,' instead of derivations of that word like 'ad' and 'advertising.'"  The court finds that defendant "includes certain terms in [plaintiff's] request, . . . yet omits others . . . ."  "Although it may ultimately be reasonable for the Commission to exclude the terms 'advertisement' and the relevant Code of Federal Regulations citation, it has not provided any explanation for why it is reasonable to exclude these seemingly relevant terms."  "Accordingly, should the Commission choose to supplement the record, it should provide support for why excluding these search terms is reasonable in light of [plaintiff's] original request."
   
• Exemption 5, Deliberative Process Privilege & Attorney-Client Privilege:  The court holds that "the Commission has not met its burden to show that it properly invoked Exemption 5 in withholding or redacting responsive records."  First, "based on the Commission's scant record support for the nature of these documents . . . the Court is unable to determine whether or not the Commission properly withheld the documents pursuant to Exemption 5."  "The Commission's record support is largely conclusory, repeats the same generalized language for several different documents, and does not engage with the relevant factors under the case law."  "For example, the Commission's declarations do not explain the relative roles of those involved in the discussions, which is a critical factor in determining whether the materials are deliberative."  "The Commission also fails to explain in its declarations, beyond boilerplate conclusory statements, . . . how the discussions were predecisional."  "It does not explain the details of the specific agency decision process such that the Court could determine whether the discussions truly predated any agency decision or non-decision."  "Finally, the Commission did not adequately support its assertion that one document was exempt from disclosure under the attorney-client privilege."  "For the privilege to apply, the Commission must do more than merely state that attorneys were involved in giving legal advice."  "For example, the Commission's declarations do not establish . . . that 'the communication relates to a fact of which the attorney was informed by his client, outside the presence of strangers, for the purpose of securing legal advice,' nor do the declarations address the other elements of the attorney-client privilege."
   

• Exemption 5, Other Considerations:  The court holds that "[t]he Commission does not articulate a specific foreseeable harm that is adequately connected to the underlying materials."  "Instead, the Commission repeats for every document the same generalized statement of harm that could apply to any record exempted under Exemption 5."  "As for the purported public confusion harm specifically, the D.C. Circuit has explained that public confusion is a 'subsidiary rationale' for Exemption 5, and 'has special force with respect to disclosures of agency positions or reasoning concerning proposed policies.'"  "The rationale 'protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon.'"  "Here, [the court finds that] the Commission does not provide any support for the point that the proposed policies have not yet been decided."
   
• Exemptions 6 & 7(C):  The court relates that "[h]ere, '[t]he information redacted was Personal Identifiable Information consisting of a telephone number of a third party . . . pursuant to FOIA Exemption (b)(6).'"  The court finds that "[t]he declarations do not explain who this individual was nor the context of his or her telephone number being disclosed."  "It also does not explain whether or not the third party's name was listed alongside the telephone number."  "And the Commission does not establish that the document was compiled 'for law enforcement purposes,' . . . as required for Exemption 7(C) to apply."  "Accordingly, the Court proceeds to consider the material only under Exemption 6."  The court finds that "[t]he Commission has failed to provide any record support for which consequences, if any, may result from disclosure of this phone number – let alone the circumstances surrounding the phone number in the context of the document."