New Orleans Navy Housing, LLC v. U.S. Dep’t of Navy, No. 25-363, 2025 WL 2589594 (E.D. La. Sept. 8, 2025) (Africk, J.)

New Orleans Navy Housing, LLC v. U.S. Dep’t of Navy, No. 25-363, 2025 WL 2589594 (E.D. La. Sept. 8, 2025) (Africk, J.)

Re: Request for records concerning Military Housing Privatization Initiative

Disposition:  Holding in abeyance defendant’s motion for summary judgment

• Exemption 5, Attorney Work-Product Privilege & Attorney-Client Privilege:  The court relates that “[t]he Navy invokes the deliberative process privilege for each document in its Vaughn index.” “The Navy additionally invokes the attorney-client privilege and attorney work product privilege for a handful of documents, but, as plaintiffs point out, it makes no attempt to support its assertion of these additional privileges in its briefing.”  “More importantly, the Navy’s description with respect to these documents is conclusory and cannot carry its summary judgment burden of demonstrating that the attorney-client privilege or attorney work product privilege applies.”  “Consequently, the Navy’s success in invoking Exemption 5 rises and falls with its ability to establish that the deliberative process privilege applies to each withheld document.”
   
• Litigation Considerations, Evidentiary Showing, Vaughn Index:  The court relates that “Plaintiffs argue that the Navy has failed to meet its burden.”  “In its reply, the Navy urges the Court to consider its entire submission when evaluating whether it is entitled to summary judgment, and not just the Vaughn index.” “When the Navy’s Vaughn index sufficiently describes the withheld record, the Court need not look further.” “However, where other evidence in the record provides additional context or description for a given document, the Court will take that evidence into consideration.”
   
• Exemption 5, Deliberative Process Privilege:  The court relates that “[t]he parties disagree with respect to whether the documents withheld by the Navy fall within the scope of the privilege.”  “Plaintiffs argue they do not, because the ‘decisions’ being made by the Navy do not ‘bear on the formulation or exercise of agency policy-oriented judgment.’”  “Rather, plaintiffs argue, the decisions merely relate to ‘matters of contract administration,’ because all the withheld documents ‘relate to the Navy’s and Plaintiffs’ rights, duties, and conduct under the agreements governing’ [plaintiffs].”  “And, according to plaintiffs, matters of contract administration fall outside of the deliberative process privilege.”  “As a threshold matter, the Court agrees that the civil contract cases cited by plaintiffs have limited influence on the FOIA issue before this Court.” “The fact that a document was discoverable in a prior litigation does not mean that all like documents ‘must be disclosed to anyone under the FOIA.’”  “Plaintiffs essentially contend that matters of contract administration categorically fall outside of the deliberative process privilege because they typically address ‘mundane, technical, fact-intensive’ decisions and are therefore not ‘policy-oriented judgments.’”  “However, the Court does not agree that the civil decisions cited by plaintiffs stretch as far as plaintiffs claim; namely, that these decisions ‘doom the Navy’s deliberative process privilege claims’ because ‘[t]he documents at issue all relate to the Navy’s and Plaintiffs’ rights, duties, and conduct under the agreements governing the Project.’”  “Plaintiffs seem to forget that it is ‘the character of [the documents] which determines whether they can be released.’”  The court finds that “the decisions that these documents pertain to are ones in which the Navy exercises considerable discretion, and that arise in part from Congress’ mandate that the Navy oversee the financial health of its [Military Housing Privatization Initiative] projects.”
  
  “Plaintiffs[] challenge [certain] Vaughn index entries [because] they ‘contain little more than a conclusory assertion that they relate to a deliberative process.’”  “The Court agrees with respect to [certain entries], but disagrees as to [other entries].”  For example, “[one entry] indicates Document 1 is responsive to plaintiffs’ FOIA Request 1, which sought documents related to [plaintiffs’] request for funding to cover the increased insurance premiums.”  “Furthermore, the Navy’s response to plaintiffs’ second administrative appeal explains that ‘[plaintiffs’] request [was] for [a] $4M loan out of the [Member Operating Reserve Account] to cover the 2023 insurance premiums of the Project,’ an account on which ‘[defendant] has discretion [ ] how [it] is used.’”  “The Court finds that the Navy’s description of the document and context demonstrates that the document was logically withheld under the deliberative process privilege.”
  
  However, “the Court agrees that . . . two issues render the Navy’s withholding of [another set of] documents questionable.”  First, “the documents ‘appear to describe decisions already made.’”  Second, “‘“what transpired during a meeting” is factual and thus falls outside of the deliberative process privilege.’”
  
  Another example “is described as ‘email communications’ containing ‘opinions of . . . personnel regarding the financial sustainability of [a] Project and how it will be affected by future project costs.’” “This, alone, could describe purely factual, evaluative matters.”  “However, the Vaughn index also indicates that these communications ‘discuss[ ] next steps’ and were responsive to plaintiffs’ FOIA Requests 1, 2, and 3, which involve the Navy’s process to determine whether and how to fund the cost of the project’s increased insurance premiums, whether to send the Letter of Dissatisfaction, and whether to exercise its right to review the project’s books and records.”  “The Vaughn index also indicates that the Navy has already released the segregable portions . . . .”  “Taken together, the Court finds the Navy has met its burden of demonstrating that it withheld only information that is covered by the deliberative process privilege.”
  
  However, regarding another example, “[e]ven considered in the context of the FOIA request each of these documents is responsive to, the Court finds that [certain] document descriptions do not sufficiently establish that they ‘would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.’”  “Based on these descriptions alone, the Court cannot determine whether the Navy properly withheld these documents pursuant to the deliberative process privilege.”
   
• Exemption 5, Foreseeable Harm:  The court finds that “[w]hile true that the Navy’s response to plaintiffs’ second administrative appeal provides additional explanation for the documents it withheld, the specific paragraphs addressing foreseeable harm are lacking.”  “These explanations are nothing more than perfunctory, speculative assertions that disclosure would harm the processes the privilege is meant to protect.”  “While at times the ‘very context and purpose’ of the withheld records may make ‘the foreseeability of harm manifest,’ the record before the Court shows ‘no obvious reason why disclosing these records would create [the] foreseeable harm’ that the deliberative process privilege is aimed to prevent.”
  
  “Although the Court finds that the Navy has not satisfied its summary judgment burden, the Court will not, as plaintiffs request, grant summary judgment to plaintiffs on this record.”  “Instead, the Court will allow the Navy the opportunity to supplement the record with respect to the foreseeable harm component.”