Project on Gov’t Oversight, Inc. v. DHS, No. 18-2051, 2023 WL 2139380 (D.D.C. Feb. 21, 2023) (Lamberth, J.)

Project on Gov’t Oversight, Inc. v. DHS, No. 18-2051, 2023 WL 2139380 (D.D.C. Feb. 21, 2023) (Lamberth, J.)

Re:  Request for certain records concerning civil rights and civil liberties inquiries from 2015 to present

Disposition:  Denying defendant’s motion for summary judgment; granting in part and denying in part plaintiffs’ cross-motion for summary judgment

• Litigation Considerations:  “[T]he Court agrees with DHS that [plaintiff] waived its right to challenge DHS’s search explicitly in email communications and implicitly in joint status reports.”  The court relates that “[it] has held on multiple occasions that ‘where sophisticated parties to a FOIA case have agreed to narrow the issues in a written status report, they generally may be held to their agreement under traditional waiver principles.’”  “While [the] Court has recognized that waiver of a FOIA challenge typically happens in joint status reports, ‘the common law concept of waiver . . . includes inferences from the words and actions of the parties.’”  The court relates that “[o]n June 23, 2021, DHS sent an email to [plaintiff] outlining the process for the remaining document productions.”  “As part of that process, DHS stated, ‘[t]he Agency will not be required to justify the sufficiency of its searches or its responsiveness review, as that was negotiated between the parties and is no longer in dispute, nor will the agency be required to prepare a Vaughn index or supporting declaration for other withholdings that Plaintiff does not identify as contested and still in dispute as part of this meet and confer process.’”  “DHS asked [plaintiff] to confirm that it agreed with the process outlined, to which [plaintiff] replied the same day, ‘[w]e are in agreement and the draft JSR is approved for filing.’”  The court finds that “[i]t is abundantly clear from the June 23, 2022 email that [plaintiff] knowingly and voluntarily intended to waive its right to challenge the adequacy of DHS’s search because it explicitly agreed to such a waiver.”  “This is reflected in the shift in joint status reports from referring to any remaining disputes to only disputes related to Exemption 5 withholdings, and in the parties’ limitation of the Court’s involvement to only the Exemption 5 withholdings.”  “[Plaintiff] does not dispute the existence of the email exchange or content of the status reports.”  “Rather, it asserts that the negotiations referred to in the email only addressed the parameters of the search, not actual search methods and, ‘[s]ince [plaintiff] lacked any knowledge of the agency’s search methodology, it could not possibly agree to waive its right to contest the adequacy of the search.’”  “The Court finds this argument unavailing.”  “A failure to inquire further about search methodology does not prevent a party from knowingly and voluntarily waiving its right to challenge it later.”  “There is no reason for the Court to decline to enforce this waiver, given that [plaintiff] had many opportunities to inquire about DHS’s search methodology well before requesting the Court’s intervention in this case, and given a lack of evidence that DHS’s approach was at all misleading.”  “Consequently, DHS will not be required to redo its search.”
   
• Exemption 5, Deliberative Process Privilege:  The court holds that “DHS may not withhold any of the responsive information at issue under FOIA Exemption 5.”  First, the court holds that “DHS has shown that its Exemption 5 withholdings and expert report redactions are predecisional.”  “DHS asserts, and [plaintiff] does not dispute, that [DHS’s Office of Civil Rights and Civil Liberties’ (“CRCL”)] ‘statutory role is to advise DHS leadership and personnel about civil rights and civil liberties issues.’”  “DHS’s position is that CRCL-retained experts conduct routine investigations of detention facilities and share their findings and recommendations to help inform CRCL’s policy recommendations to DHS about what, if any, action should be taken at each facility.”  “This justification is ‘reasonably specific, logical, and uncontroverted by other evidence in the record or by evidence of bad faith, which is all FOIA requires of an agency at the summary judgment stage.’”  “[Plaintiff] argues that the documents entirely withheld cannot be predecisional because neither the Vaughn index nor affidavits ‘pinpoint any agency decision or policy’ to which any of the documents contributed.”  “[M]ore recent Circuit precedent clarifies that ‘information may also be predecisional if it is prepared as part of a deliberative process about an existing policy that is the subject of public criticism.’”  “DHS retained experts to produce the reports at issue precisely to contribute to an ongoing deliberative process.”  “Given that agencies are continuously reevaluating their policies, ‘it makes little sense for the privilege to turn on the identification of a specific decision.’”  The court also finds that “[plaintiff] has not identified any specific advice or recommendations in the Exemption 5 withholdings or expert report redactions that later became DHS’s position.”  “Thus, [plaintiff] has not demonstrated that any information withheld or redacted has lost its predecisional status.”
  
  Second, the court finds that “[b]ecause ‘unverified observations of first impression’ are not deliberative in nature, the deliberative process privilege applies only to the withholdings in this case that represent the experts’ analysis, opinions, or recommendations.”  The court relates that “DHS argues that all of the information withheld qualifies as deliberative because it contains ‘unverified observations of first impression, expert analyses of facts and information gathered during the course of the expert’s investigation of the facility, and the uninhibited opinions and recommendations of the Civil Rights Office’s expert consultant intended for evaluation and review by the Office.’”  The court finds that “[m]ost of the cases cited in support by DHS in [a prior case] dealt with the ‘culling or organization of an existing set of facts into a summary, not the initial finding of those facts.’”  “DHS has not cited a single case in which a court has held that factual information was deliberative simply because it was ‘unverified’ or an ‘observation of first impression.’”
   
• Exemption 5, Foreseeable Harm and Other Considerations:  The court finds that “[a]lthough DHS has shown that Exemption 5 applies to portions of reports representing experts’ analysis, opinions, or recommendations, it has not met FOIA’s independent requirement that an agency demonstrate ‘reasonabl[e] foresee[ability] that disclosure would harm an interest protected by’ the relevant exemption.”  As in another similar case, the court finds that “‘[t]he fatal flaw in DHS’s first “reasonably foreseeable” justification[]’ . . . ‘is that it is essentially a restatement of “the generic rationale for the deliberative process privilege itself.”’”  “‘Nowhere does [DHS] explain why disclosure of these specific types of reports would chill deliberations more than that of any generic documents to which the deliberative process privilege applies.’”  Similarly, regarding defendant’s argument “that ‘the Department’s evidence shows that it is reasonably foreseeable that release of the experts’ preliminary findings and recommendations would cause public confusion,’” the court finds that “DHS has not explained why any particular report would cause public confusion, but rather relies on a generic recitation of the rationale for the privilege itself.”  “Consequently, this justification also does not meet the bar for establishing reasonably foreseeable harm under the FOIA Improvement Act.”