S. Envtl Law Ctr. v. Mulvaney, No. 18-00037, 2019 WL 4674497 (W.D. Va. Sept. 25, 2019) (Conrad, S. J.)

S. Envtl Law Ctr. v. Mulvaney, No. 18-00037, 2019 WL 4674497 (W.D. Va. Sept. 25, 2019) (Conrad, S. J.)

Re:  Request for "'records in the custody or control of OMB submitted in connection with Executive Order 13781 by any agency responsible for the management of federal public lands'"

Disposition:  Denying plaintiff's motion for summary judgment; denying defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he court concludes that genuine factual disputes and unanswered factual questions preclude the entry of summary judgment on this issue."  "Based on the current record, the court is unable to conclude that OMB fulfilled its obligation to perform a search reasonably calculated to uncover all relevant documents."  First, the court finds that "[a]s the plaintiff emphasizes in its reply brief, [defendant's] declaration fails to explain why the defendant’s initial search for documents responsive to the plaintiff's FOIA request did not include potential custodians who were involved at other stages of the government-wide reorganization efforts."  "Nor does it address why the search for responsive documents was not immediately broadened after the OPPM custodian only identified two documents."  Second, the court relates that "[defendant's] declaration also indicates that staff members in OMB's Office of General Counsel became aware of three additional responsive documents 'in the course of preparing [the] declaration and consulting with other OMB components.'"  "The court recognizes that the fact '[t]hat some documents were not discovered until a second, more exhaustive, search' does not necessarily render the entire search inadequate."  "However, the existing declarations provide little to no explanation as to why the additional documents were not discovered earlier."  "Finally, the current record, when viewed in the plaintiffs favor, contains 'positive indications of [other] overlooked materials.'"  "According to the plaintiff, OMB staff members have previously acknowledged being aware of responsive documents that are not listed on the Vaughn index filed by OMB."   "Although the defendant strongly disputes this assertion, it is not 'without . . . factual support.'"
   
• Exemption 5, Deliberative Process Privilege:  "[T]he court is unable to conclude from the present record that OMB is entitled to fully withhold all of the challenged documents pursuant to the deliberative process privilege."  "Although portions of the requested documents may ultimately be held to fall within this privilege, OMB has failed to meet its burden of demonstrating that the documents are exempt from disclosure in their entirety."  "In reaching this decision, the court recognizes that the Executive Order and the subsequent OMB Memorandum directed agencies to produce documents that would appear on the surface to fall within the deliberative process privilege, including 'proposed' reorganization plans, 'recommendations,' and 'draft' documents."  "However, the OMB Memorandum and other statements by the Executive Office support the plaintiff's position that the draft and final versions of the Agency Reform Plans may contain information that is not predecisional, and therefore not protected by the deliberative process privilege."  The court relates that "[plaintiff] persuasively argues that if an Agency Reform Plan listed in the Vaughn index merely explains actions or reforms that an agency has already implemented or adopted, such information is not predecisional for purposes of the deliberative process privilege."  "Unfortunately, the Vaughn index and declarations submitted by OMB do not adequately address the plaintiff's challenges to the application of the deliberative process privilege, or otherwise provide enough information for the court to conduct a proper de novo review."  "The Vaughn index simply states, in wholly conclusory terms, that each of the five identified documents is 'withheld in [f]ull' because '[r]elease of the document[s] would expose predecisional internal deliberations of Executive Branch Agencies and risk stifling frank discussions.'"  "Additionally, even if certain documents were predecisional at the time they were drafted, OMB's declarations fail to adequately address 'whether these drafts were (1) "adopted formally or informally, as the agency position on an issue;" or (2) "used by the agency in its dealings with the public."'"