Protect Democracy Project v. HHS, No. 17-792, 2021 WL 4148312 (D.D.C. Sept. 13, 2021) (Moss, J.)

Protect Democracy Project v. HHS, No. 17-792, 2021 WL 4148312 (D.D.C. Sept. 13, 2021) (Moss, J.)

Re:  Request for records concerning discontinuation of advertising for healthcare.gov, the federal health insurance marketplace, during the final weeks of the 2016–2017 open enrollment period

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying without prejudice plaintiff's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court relates that "[i]n its renewed cross-motion and opposition, [plaintiff] does not maintain that all the Department's redactions to the 13 records at issue are unlawful."  "Instead, its argument is a narrower one:  in [plaintiff's] view, the Vaughn index and the unredacted po[r]tions of the 13 records suggest that some of the withheld material includes 'segregable factual and post-decisional material that HHS must disclose.'"  "The redactions [plaintiff] disputes fall largely into three categories:  (1) records that appear to contain factual information about outreach activities that had been planned by the Obama Administration; (2) internal clarifications and interpretations of final agency decisions; and (3) a sample talking point and certain 'background information' that a Department official provided to a White House staffer."
  
  Regarding the first category of documents, "[t]he Court need not pause long over [plaintiff's] first argument – that '[t]he final decisions made by the [Obama] Administration cannot retroactively be characterized as deliberative merely by virtue of the [Trump] Administration's desire to revisit them' . . . ."  The court finds that "[b]ecause the Department's invocation of Exemption 5 is not premised on a claim that the Obama administration's once-final deliberations regarding an outreach plan 'retroactively' became 'deliberative' when the Trump administration decided to revisit that plan, [plaintiff's] first argument is non-responsive."  The court finds that "[plaintiff's] second argument, however, is both responsive and more convincing."  The court finds that "[a]pplying these principles in this context requires a detailed, document-by-document assessment, informed by the Department's declarations and Vaughn index and by the snippets of materials left unredacted in the documents at issue."  "To the extent the available information is '[in]sufficiently detailed' to assess the agency's 'claims of exemption,' in camera inspection may be appropriate."  Regarding a particular email chain, the court finds that defendant's description is "unambiguous and leaves no doubt that any factual content is incidental to, and inextricably intertwined with, 'recommendations' made 'by an agency employee' regarding 'which options he [thought] should be pursued.'"  "Material of that type lies at the core of the deliberative process privilege, and nothing that [plaintiff] argues suggests otherwise."  Regarding "'summar[ies] and discussion[s] of the financial implications of certain options regarding outreach activities,'" the court finds that "the Department is not entitled to prevail merely because certain versions of the financial summary were 'drafts.'"  "[A]n agency 'cannot withhold' factual material 'merely by stating that it is in a draft document' . . . ."  The court relates that plaintiff "presses for disclosure of the financial data that formed the basis of the participants' deliberations, which are factual in nature."  "The problem here is that the Court cannot discern whether the factual material included in the summaries is likely to reveal anything about the Department's pre-decisional deliberations regarding the termination of planned outreach activities."  Therefore, "the Court will now order that the Department submit unredacted copies of [certain documents] to the Court for ex parte, in camera review."  Additionally, "[a]s with [the above described documents], the Court cannot discern from the existing record whether the admittedly factual material contained in . . . a list of 'planned outreach activities from the [Obama] administration,' . . .  – is purely deliberative or not readily segregable."  "Once again, it is possible that the compilation of the list 'reflects an "exercise of discretion and judgment calls,'" or a process of 'selection or organization' that was 'part of [the] agency's deliberative process.'"  "But the introductory clause suggests otherwise, merely characterizing the redacted material as 'a list of Open Enrollment activities planned for the next two weeks,' excluding 'social media, email marketing, ads, etc.'"  "In any event, the Court certainly cannot conclude that the list is itself deliberative based on the sparse description contained in the Vaughn index."  "Nor is the Court persuaded, at least on the present record, by the Department's equally unilluminating contention that the list is protected under Exemption 5 because it formed 'the "foundation" for the agency's "discussion" of its options.'"  "For these reasons, the Court is skeptical that the redacted list of planned Open Enrollment activities is protected by Exemption 5."  "But because the Court will already conduct an in camera inspection of [other documents], and because adding a single, further paragraph to that inspection will neither materially increase the burden on judicial resources nor hinder the prompt resolution of this case, the Court will order the Department to submit unredacted copies of [these documents] to the Court for ex parte, in camera review."
  
  Regarding the second category of documents, the court finds that "[i]t is far from clear . . . whether the emails at issue concern (1) a final agency policy; (2) a policy on the verge of finalization; or (3) post-decision deliberations about matters that were not resolved by an earlier, final decision."  "Although the timeline for these emails suggests that the redacted materials relate to discussions occurring just before a final decision was reached, that inference is too speculative to carry the day, particularly given the Court's need to review other records in camera."  "Three obstacles, in particular, prevent the Court from granting summary judgment for either party at this time."  "First, the Department's Vaughn index does not clarify whether the answers . . . sought [in the email] had already been considered and settled upon by the agency or whether they, instead, informed the decision-making process."  "Second, the Vaughn index does not clarify the 'nature of the decisionmaking authority vested in the . . . author[s] and recipient[s]' of the redacted material."  "Finally, there is at least some evidence that a final decision of some sort was made before [the] . . . questions [were posed] and the related email communications were sent."  "The Court will, accordingly, require the Department to submit [certain documents] to the Court for ex parte, in camera review."  "In addition, because the unredacted documents may themselves fail to reveal the needed context to permit the Court to resolve the cross-motions for summary judgment, the Court will also require the Department to submit a supplemental declaration addressing the questions the Court has raised."
  
  Regarding the third category of documents, the court finds that "[t]he Department has carried its burden of demonstrating that the sample talking point that ["the White House liaison for the Department"] provided to the White House is protected under Exemption 5."  "The Vaughn index explains that it was offered as a 'sample . . . to inform' White House 'decisionmaking on how to present the Administration's position.'"  "As such, the talking point was not final; it did not come from decisionmakers but, rather, was offered to decisionmakers to 'inform' the 'decisionmaking' process."  "In short, the talking point was sent to advise the White House on its public messaging."  "That is a quintessentially deliberative communication."  "The fact that ["the White House liaison for the Department"] sent the 'final version' of the email does not mean that the email constituted the Trump administration's final decision on messaging."  "To the contrary, much of the advice provided to inform internal, government deliberations comes in the form of an email or memorandum that was preceded by prior drafts."  "An email may become 'final' – as opposed to a 'draft' – when the author hits send."  "But that does not mean that the advice contained in the email becomes the final views of the agency when the author stops editing and sends it to her supervisor or colleagues."  "The 'background information' contained in the email, however, presents a closer question, which the Court cannot resolve on the present record."  "The problem is that the email is redacted in its entirety . . . leaving the Court with no clues about the nature of the 'background information,' and the Vaughn index is equally opaque, merely asserting that the email contained 'background information,' . . . ."  "Without any evidence regarding the nature of the 'background information,' the Court cannot assess whether it consists of unadorned, publicly available facts; a description of the Department's internal deliberations; ["the White House liaison for the Department['s]"] assessment of the political landscape; or information '"culled" . . . from a much larger universe of facts' thereby reflecting ["the White House liaison for the Department['s]"] 'judgment calls' about the key points to inform the White House's communications strategy."  "The Court will, accordingly, require the Department to submit [this one document] to the Court for ex parte, in camera review."