Protect Democracy Project, Inc. v. HHS, No. 17-792, 2019 WL 954810 (D.D.C. Feb. 27, 2019) (Moss, J.)

Protect Democracy Project, Inc. v. HHS, No. 17-792, 2019 WL 954810 (D.D.C. Feb. 27, 2019) (Moss, J.)

Re:  Request for records concerning advertising for healthcare.gov, federal health insurance marketplace, during the final weeks of 2016-17 open enrollment period

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

• Exemption 5, Deliberative Process Privilege:  The court holds that "although the Department does note that the deliberations at issue dealt with the subject of the FOIA request – i.e., the Department's discontinuation of ACA advertisements – its Vaughn indices and declarations are otherwise devoid of any detail about the nature of relevant deliberations."  The court further relates that "[t]he Department argues that its use of identical descriptions across entries does not mean that those descriptions are inadequate."  The court finds that "[t]hat is correct, as far as it goes."  "What is insufficient, however, is boilerplate language that might be used in any Vaughn index in any FOIA case."  "Because such boilerplate descriptions are unmoored from the specific rationale for, or the content of, the relevant redactions, they fail to provide the Court with 'a reasonable basis to evaluate the claim of privilege.'"  Additionally, the court finds that "for much the same reason, the Department fails to make an adequate showing regarding the function and significance of the withheld material to any agency deliberations."
   
• Litigation considerations, In Camera Inspection:  "At the current stage of proceedings, the Court will – with one exception – also decline [plaintiff's] alternative request that the Court conduct an in camera review of the challenged redactions on a document-by-document basis to determine whether the redacted material is, in fact, deliberative."  "Mindful of the Department's expertise and 'the proper limits of the judicial role in FOIA review,' . . . the Court will permit the Department, in the first instance, to offer a more detailed description of its bases for concluding that each of the redactions at issue was necessary to protect the deliberative process."  "The Court reaches a different conclusion, however, with respect to one document" where "[plaintiff] has made at least a prima facie showing that the redacted material was in final form."  "The Court will, accordingly, direct that the Department submit an unredacted version of the email to the Court for ex parte, in camera review."
   
• Litigation Considerations, In Camera Inspection:  "[T]he Court is persuaded that the Department lawfully withheld redacted portions of the four documents based on Exemption 5 and the attorney-client privilege."  "Although the Department has not, with one exception, identified the specific lawyer who provided the relevant legal advice, it has attested that the Department's Office of General Counsel provided legal advice to [Centers for Medicare and Medicaid Services ("CMS")]."  "It has attested that the redacted communications were 'confidential' and that they were either for the purpose 'of obtaining legal advice' or to disseminate and discuss that advice with other agency officials."  "And it has explained that the advice at issue related to 'any legal ramifications related to . . . discontinuing [the] advertisements for healthcare.gov.'"  "In short, the Department has carried its burden on showing that the communications were between a law office – the Office of the General Counsel – and a client – CMS (or was passed along to other agency officials); that those communications were 'confidential;' and that they were either for the purpose of securing or disseminating legal advice."  "Nothing more is required to maintain the privilege."