Reinhard v. DHS, No. 18-1449, 2019 WL 3037827 (D.D.C. July 11, 2019) (Boasberg, J.)

Reinhard v. DHS, No. 18-1449, 2019 WL 3037827 (D.D.C. July 11, 2019) (Boasberg, J.)

Re:  Requests for records concerning plaintiff's termination

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

• Exemption 5, Deliberative Process Privilege:  The court holds that defendant largely prevails on its deliberative process withholdings.  First, "[t]he Court has little trouble concluding that all withheld information qualifies as predecisional."  "[B]oth investigative reports at issue – one concerning Plaintiff's alleged retaliation and the other probing the command climate – concern and predate the Coast Guard's ultimate action."  "Defendant has identified the relevant decisionmaking process at issue:  the manner in which the Coast Guard determined to respond to the issues and allegations that spurred the investigations."  Two email chains at issue also "clearly predate[] Plaintiff's actual administrative separation."  Second, regarding the deliberative portions of the investigative reports, "the Court concludes that the Government has met its burden as to some, but not all, of the material contained in and appended to the reports."  While likely largely deliberative, regarding the factual portions of the report, "the Court does not rule out the possibility that information like this could be deliberative or otherwise protected by another FOIA exemption."  "The point here is that the Government has not made an argument appropriately tailored to these statements to permit the Court to reach that determination."  "[I]t is DHS's burden to separate the wheat from the chaff."  "The Court will not do Defendant's job."  Regarding the deliberative nature of the two email chains, "[the court] has little trouble concluding that these documents reflect deliberation."  "[B]oth are internal Coast Guard threads discussing allegations of improper behavior by Plaintiff."  Third, the court rejects plaintiff's adoption argument and holds that "[a] recommendation memo laying out the bases for a possible decision and emails discussing how to respond to a situation do not lose their status as deliberative simply because the decisionmaker followed the recommendation."
   
• Exemption 5, Attorney-Client Privilege:  The court holds that defendant largely prevails on its attorney-client withholdings.  The court finds that "every withheld record reveals a communication between a member of a Coast Guard unit and a Coast Guard attorney."  "In these cases, the Coast Guard unit . . . serves as the client, and the Coast Guard attorney serves as that unit's lawyer."  "For each record, Defendant lists the subject matter of the communication."  "It then attests that, for each relevant email, the client – i.e., a member of the Coast Guard unit – either seeks legal advice from the attorney on that subject, or the attorney offers legal advice on it."  "Finally, the Coast Guard affirms that each email is 'confidential' and has been 'circulated no further than among those members of the Coast Guard authorized to speak or act for the Coast Guard in relation to the subject matter of this email.'"  However, regarding one email between two non-attorneys, where an attorney was carbon copied, the court finds that "the fact that the attorneys are not the direct recipients thus gives the Court some doubt about its legal purpose."  The court finds that "the Government has not met its burden as to these documents."  Also, regarding "the inclusion of several individuals – who are not members of the Bar – on [certain] email chains," "[t]he Court agrees that the Government should provide some form of this information."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that defendant has satisfied its segregability requirements because "[b]oth the Coast Guard's Vaughn Index and accompanying affidavits explain that all segregable information has been turned over to Plaintiff."