Watkins Law & Advocacy, PLLC v. Dep't of Veterans Affairs, No. 17-1974, 2019 WL 4860846 (D.D.C. Sept. 30, 2019) (Jackson, J.)

Watkins Law & Advocacy, PLLC v. Dep't of Veterans Affairs, No. 17-1974, 2019 WL 4860846 (D.D.C. Sept. 30, 2019) (Jackson, J.)

Re:  Requests for records concerning "'inter-agency agreements related to allegedly financially incompetent veterans . . . [who] are reported to DOJ, FBI, and ATF'"

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

• Procedural Requirements, Searching for Responsive Records:  Regarding responsiveness, "[t]he Court agrees with plaintiff" that "[t]he plain language of the request does not purport to limit the dates of the documents; it limits the procedures to which the documents pertain."  "To the extent records that pre-date 2013 'set out or reflect' procedures that were in effect in 2013, they fall within the request."  "So to the extent the 1998 MOU 'set[s] out' and 'reflect[s]' agency decisionmaking procedures that were re-approved in 2013, those records should be produced."  "This conclusion is further bolstered by the fact that the VA itself initially deemed these records responsive."
   
• Exemption 5, Attorney-Client Privilege: The court "finds that the agency met its burden and that the withholdings are appropriate under FOIA Exemption 5."  The court finds that "the VA's Vaughn Index contains detailed descriptions that 1) identify the documents as communications originating from the VA OGC, thus meeting the threshold requirement that the record come from a government agency, . . . and 2) support the notion that those communications were made for the purpose of providing legal advice."
   
• Exemption 5, Deliberative Process Privilege:  Regarding the VA's action, the court finds that "[t]he VA's Vaughn Index indicates that these documents are a 'direct part of the deliberative process in that [they] make recommendations or express[ ] opinions on legal or policy matters.'"  "As such, the VA properly withheld [certain] documents pursuant to FOIA Exemption 5."  The court explains that, based on defendant's declarations, "[t]he Court is satisfied that the records concern pre-decisional discussions related to the 1998 and 2012 MOUs between the VA and the FBI and the 2007 Brady Act amendments."  "Moreover, the Court is satisfied that the records at issue are deliberative[]" because "[a]s evident in the previous examples, the Vaughn Index entries 'reflect[ ] advisory opinions, recommendations and deliberations' that could compromise the VA's decisionmaking process."
  
  Regarding the FBI's action, "[t]he Court finds that the FBI has met this burden through the detailed justifications provided in the Second Hardy Declaration."  "The declarant avers that the agency withheld several drafts of the MOU between the FBI and the VA in full under FOIA Exemption 5 because the documents consist of interagency recommendations and opinions that are deliberative and predecisional."
  
  Regarding ATF's action, "[t]he Court agrees that the internal talking points fall within the scope of the deliberative process privilege and FOIA Exemption 5."  "'The creation of a "talking points" document itself suggests that a public statement was anticipated at the time of its creation, and given that that no official statement has yet been made, the talking points remain ripe recommendations that are ready for adoption or rejection by the Department.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  Regarding the VA's action, the court holds that "the VA has met its burden of demonstrating that no reasonable segregable materials exists in the withheld documents."  "First, as discussed above, the VA produced a Vaughn Index that described each withheld document with sufficient particularity."  "Second, the VA's declarant avers that:  a line by line review was conducted of each record to determine whether any segregable portion could be released."
  
  Regarding ATF's action, "[b]ased on its in camera review, the Court finds that the factual information contained in the document was 'inextricably intertwined with exempt portions.'"
   
• Exemptions 6 & 7(C):  The court finds that "the [FBI's] declarant justified its partial withholding of personal information under FOIA Exemption 6 and 7(c)."  "The declarant avers that '[f]urther description of the information withheld, beyond what is provided in [the] declaration, could identify the actual exemption information the FBI has protected.'"  "Because the agency's declaration describes the documents and why they are exempt in enough detail, and the declaration is 'not controverted by either contrary evidence in the record nor by evidence of agency bad faith,' . . . the Court finds that withholdings were proper."
   
• Litigation Considerations, Adequacy of Search:  Regarding the VA's action, the court finds that "the FBI has met [its] burden."  "The FBI's declarations explain in detail the agency's system of records and why it searched certain databases, as well as the methods employed in conducting the FOIA searches."  "The fact that the search did not turn up additional documents does not rebut the presumption of good faith accorded to the agency."
  
  Regarding the FBI's action, "[b]ased on these detailed representations, the Court is satisfied that the FBI has met it segregability requirement."  The court relates that "the agency declarant avers that '[e]very effort was made to provide [p]laintiff with . . . all reasonably segregable, non-exempt information in the responsive records.'"  "'No reasonably segregable, nonexempt portions have been withheld from [p]laintiff.'"
   
• Procedural Requirements, Searching for Responsive Records:  The court finds that "[OIP's] four search terms are deficient because they exclude obvious topics such as mental health, which goes to very heart of plaintiff's FOIA request, and commonly used abbreviations."  "Accordingly, the Court finds that DOJ's search was not 'reasonably calculated to uncover all relevant documents . . . .'"