Nat’l Ass’n of Minority Veterans v. VA, No. 21-1298, 2024 WL 810032 (D.D.C. Feb. 27, 2024) (Contreras, J.)

Nat’l Ass’n of Minority Veterans v. VA, No. 21-1298, 2024 WL 810032 (D.D.C. Feb. 27, 2024) (Contreras, J.)

Re:  Request for records concerning policies and practices of VA Police Force at Veterans Health Administration facilities

Disposition:  Granting in part and denying in part defendant’s renewed motion for summary judgment; granting in part and denying in part plaintiff’s renewed cross-motion for summary judgment

• Litigation Considerations, Waiver of Exemptions in Litigation:  The court relates that “[a]s an initial matter, [plaintiff] argues that the VA has forfeited its right to invoke FOIA’s exemptions because the VA failed to raise those exemptions in its first motion for summary judgment.”  “The Court disagrees.”  “‘Courts typically find the government has forfeited the right to claim an exemption when an agency asserts the exemption for the first time only after the district court has already ruled in the other party’s favor, such as, for instance, in a motion for reconsideration.’”  “In its first motion for summary judgment, the VA previously argued that it had no responsive records.”  “Therefore, the VA had no previous reason to justify any exemptions.”  “It is, thus, apparent that the VA’s failure to invoke the FOIA exemptions in its first motion for summary judgment was not an attempt to gain a strategic advantage.”  “And as a result, the Court has not previously had the opportunity to rule on any of the VA’s asserted FOIA exemptions.”  “The exemptions the VA invokes have not been forfeited.”  “Furthermore, ‘the failure to raise specific exemption claims . . . is not a waiver if the District Court grants leave to amend the Vaughn index.’”  “The Court’s prior opinion explicitly ordered the VA to file a Vaughn index or other submission to justify its withholdings.”  “Accordingly, the Court holds that the VA has not forfeited its right to invoke the FOIA exemptions for its redactions and withholdings.”

• Exemption 7, Threshold; Exemption 7(E):  The court relates that “[t]he VA justifies its withholding of portions of confidential survey questions, responses, and related follow-up email communications generated in preparation for an OIG report under FOIA Exemptions 5 and 7(E).”  “VA argues that the ‘redacted information contains specific details about criminal investigation processes and procedures, including thresholds, details of law enforcement standard operating procedures and guidelines for the process of investigating a variety of crimes that occur on VA health facility property.’”  “Courts have frequently concluded that records detailing security operating procedures are ‘compiled for law enforcement purposes.’”  “And, with the benefit of in camera review, the Court agrees that the records concern VA law enforcement procedures and were compiled for law enforcement purposes.”  “Because the redacted information here reflects law enforcement protocols and procedures at VA facilities, it satisfies the first requirement of FOIA Exemption 7(E).” 
  
  “With the benefit of in camera review, the Court concludes that most – but not all – of the information redacted by the VA could create ‘a reasonably expected risk’ of circumvention of the law if released.”  “The records contain details on VA law enforcement procedures, and it is logical that individuals could use this information to circumvent law enforcement investigations or VA facility security operations.”  “For instance, release of the survey responses could reveal vulnerabilities in the VA’s computer systems that would allow an individual who committed a crime to avoid or hinder an investigation.”  “Accordingly, the Court is satisfied that most of the redactions the VA has made pursuant to Exemption 7(E) are justified and such information need not be disclosed pursuant to FOIA.”  “The Court includes a list of redactions that should not have been made . . . .”
  
  The court also relates that “[t]he VA has withheld in full a ‘[l]arge excel spreadsheet . . . that consists of information . . . collected by lower-level staff from the review of VA [Office of Security and Law Enforcement (“OSLE”)] police records’ pursuant to FOIA . . . Exemption 7(E).”  “The VA explains that the spreadsheet contains information on ‘procedures specific to the handling of disruptive behavior at VA facilities,’ ‘law enforcement techniques and procedures to handle threatening behavior,’ and ‘law enforcement techniques and procedures related to investigating assaults.’”  “The VA also explains that the spreadsheet contains information about ‘thresholds for the involvement of law enforcement’ as well as information about ‘a law enforcement database used specifically for the tracking and investigation of threatening behavior.’”  The court finds that “[t]hat information – collected from VA OSLE police records . . . – satisfies the requirements that the information be compiled for law enforcement purposes and discloses law enforcement techniques or procedures.”  “The VA has also cleared the ‘relatively low bar’ requiring that it show that release of the information would risk circumvention of the law with respect to the information in the spreadsheet relating to law enforcement procedures.”  “The VA has explained that ‘[d]isclosure of this information could allow individuals to avoid investigation and tracking of threatening behavior.’”  “As explained above, it is logical to infer that individuals could use the disclosure of the VA's security techniques to circumvent VA law enforcement protocols.”  “Be that as it may, the spreadsheet also contains information such as the dates and locations of specific past incidents requiring the intervention of law enforcement and the type of victim and perpetrator involved in each incident.”  “Indeed, this category of data comprises much of the information contained in the spreadsheet but would not create a risk of circumvention of the law if released.”  “With the benefit of in camera review, the Court confirms that some of the VA’s withholdings made pursuant to Exemption 7(E) are justified while other withholdings are not.”  “The VA may also redact personal identifying information pursuant to Exemption 6. All other information in the spreadsheet must be disclosed.”
   
• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  “[T]he Court holds that the VA has not demonstrated reasonable harm and, thus, Exemption 5 does not apply.”  The court first relates that “[t]he VA justifies its withholding of portions of confidential survey questions, responses, and related follow-up email communications generated in preparation for an OIG report under FOIA Exemptions 5 . . . .”  The court finds that “[t]he relevant ‘decision’ is the OIG’s report.”  “The redacted survey questions and responses, the VA says, are pre-decisional because they reflect conversations preceding and contributing to the OIG’s report.”  “Given that the survey questions, answers, and follow-up communications were made before publication of the OIG report – and were specifically generated to assist in creation of the reports – the Court concludes that they are pre-decisional.”  “The VA’s Vaughn index, the declaration of the VA’s Supervisory Government Information Specialist, . . . and the Court’s in camera review satisfy the Court that the VA’s redactions protect deliberative information.”  “The . . . declaration states that the survey questions were prepared ‘based on topics and issues [OIG staff] thought important to explore’ and the responses were sent by ‘Chiefs of Police and Veterans Health Administration medical directors.’”  “The Vaughn index explains that the responses ‘reflect deliberations comprising part of a process by which OIG findings and recommendations are formulated.’”  “Moreover, the Vaughn index states that ‘[p]ortions of the redacted material are internal notes made by OIG staff to prepare to write the [OIG] report.’”  “Because the Vaughn index and declaration logically explain that the information redacted by the VA was part of the ‘give-and-take of the consultative process,’ the information is covered by the deliberative process privilege.”
  
  However, regarding the foreseeable harm showing, the court finds that “[t]he VA’s explanation does not clear [the] threshold.”  “[T]he VA has not shown how its assertions that disclosure would cause employees to ‘limit and edit their communication,’ . . . ‘differ in any material way from [ ] routine assertions of deliberative process privilege[]’ . . . .”  “Moreover, the VA does not ‘explain the particular sensitivity of the types of information at issue or the role that they play in the relevant agency decisional processes (and, therefore, whether and how their release would harm similar deliberations in the future).’”  “Accordingly, the Court concludes that the VA's conclusory assertion that disclosure would inhibit speech is insufficient.”  “The VA does further explain that ‘[r]elease of these responses and communications could confuse the public because they contain topics and concerns that were not published in the final report which would harm OIG’s credibility, they contain issues that may be addressed in ongoing future OIG reports and release would interfere with those investigations and audits.’”  “The problem with the VA’s additional justification, however, is that avoidance of public confusion, harm to OIG credibility, or interference with potential investigations are not, by themselves, ‘interest[s] protected by’ FOIA Exemption 5.”  “The Court understands the Circuit’s precedent to indicate that public confusion suffices as a harm justifying withholding under Exemption 5 only where the fear of public confusion would stifle intra-agency dialogue.”  “Even though the VA has claimed that disclosure could cause public confusion, it has failed to satisfy its burden that release of the survey questions, answers, and follow up communications redacted pursuant to Exemption 5 will harm open discussion.”  “Furthermore, after reviewing the documents in camera, the Court concludes that release of the limited information that is not already exempt from disclosure pursuant to Exemption 7 would not cause any public confusion and would not otherwise stifle agency communications.”
  
  The court also relates that “[t]he VA has withheld in full a ‘[l]arge excel spreadsheet . . . that consists of information . . . collected by lower-level staff from the review of VA OSLE police records’ pursuant to FOIA Exemption 5 . . . .”  “Applying the same framework for analyzing Exemption 5 as discussed above, the Court assesses whether the VA has logically or plausibly demonstrated that the withheld information is ‘pre-decisional.’”  “As explained above, an official OIG report is a relevant agency ‘decision’ that can be used to determine whether withheld information is pre-decisional.”  “The VA explains that ‘[t]he data and notes were collected to prepare and write the January 2018 OIG report.’”  “Because the information in the spreadsheet was collected in advance of the OIG report – and for the purpose of helping to prepare the report – the information is definitionally pre-decisional.”  “[T]he VA has explained that ‘OIG reviewed police records and entered relevant information into an excel spreadsheet, along with deliberative notes, questions and comments between VA OIG staff.’”  “It describes that ‘[t]he information in this excel spreadsheet is what line-level OIG staff thought was relevant to the audit.’”  “More explicitly, the information contained in the spreadsheet ‘reveal[s] the specific topics that the auditors chose to focus on in developing their findings and they reveal what information auditors chose to communicate to supervisors and other co-workers.’”  “The VA also notes that there is a ‘column of comments in the excel spreadsheet’ that ‘include[s] information about follow-up questions to agency staff and deliberations and assessments about those follow-up questions.’”  “The VA’s explanation plausibly demonstrates that the spreadsheet is a deliberative record; the data in the spreadsheet clearly reflects the specific topics that the VA thought important to highlight in the OIG report and the notes about those topics even more clearly reflect OIG’s reaction to the information.”  “Hence, the Court finds that the deliberative process privilege applies.” 
  
  “Once again, however, the VA has not shown that reasonable harm would result from the disclosure of this information.”  “[B]oilerplate language about the chilling effect of disclosure is insufficient.”  “As explained above with respect to the survey communications, these general assertions are insufficient to ‘explain how disclosure “would” – not “could” – adversely impair internal deliberations.’”  “Moreover, by themselves, the avoidance of public confusion, harm to OIG credibility, or interference with potential investigations are not ‘interest[s] protected by’ FOIA Exemption 5.”  “After reviewing the spreadsheet in camera the Court concludes that release of the information would not stifle agency communication (or, for that matter, cause public confusion or embarrassment).”  “Accordingly, because the Court holds that Exemption 5 does not protect information in the first spreadsheet from disclosure, such information – not otherwise exempt from disclosure – must be released under FOIA.”
  
  “Lastly, the VA has withheld in full a spreadsheet that consists of information OIG staff collected from the review of patient health records.”  “The information in the spreadsheet is pre-decisional because – according to the VA’s Vaughn index – ‘[t]he data and notes were collected to prepare and write the January 2018 OIG report.’”  “The OIG’s report is an agency decision, the information in the second spreadsheet was collected prior to the decision, and the collected information helped OIG come to its decision.”  “Whether the information in this spreadsheet is deliberative is a slightly closer call.”  “Whereas the column of comments in the first spreadsheet reflects the thought that went into the choice of data points, the lack of indication that the information in this second spreadsheet was as carefully selected somewhat undermines the VA’s assertion that the information reflects the agency’s deliberations.”  “The Court, however, need not decide whether the information is deliberative because the VA also fails to demonstrate reasonably foreseeable harm.”
  
  “With respect to foreseeable harm, the VA asserts that ‘[r]elease of these records could confuse the public,’ ‘harm OIG’s credibility,’ ‘harm the necessary internal debate and candid consideration of issues,’ and ‘temper [employees] candor.’”  “As explained previously, the VA has failed to provide ‘a focused and concrete demonstration of why disclosure of the particular type of material at issue will, in the specific context of the agency action at issue, actually impede those same agency deliberations going forward.’”  “Rather, the VA has used the same boilerplate language that it provided as justification for its withholding of the survey responses and the first spreadsheet.”  “Furthermore, after reviewing the spreadsheet in camera, the Court cannot infer why release of the information in this spreadsheet would hamper inter- or intra-agency conversations in the future.”  “Accordingly, the Court holds that Exemption 5 does not justify the VA’s withholding of materials in this second spreadsheet.”  “The Court notes, however, that some information in this spreadsheet – such as the names of patients, other personal identifying information of patients, and details of patients’ care – is protected by Exemption 6 and Exemption 3.”  “Accordingly, any such information may be redacted and withheld.”