American Oversight v. U.S. Department of Health and Human Services

• Court: District Court, District of Columbia
• Decided: May 27, 2022
• Docket: Civil Action No. 2017-0827
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN OVERSIGHT, INC.,

Plaintiff, Civ. Action No. 17-827(EGS/DAR) v.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff American Oversight (“American Oversight” or

“Plaintiff”) has sued Defendants Department of Health and Human

Services (“HHS”) and Office of Management and Budget (“OMB”)

(collectively “Defendants”) under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552 arising out of Defendants’ withholding

of certain documents pursuant to FOIA Exemption 5. See

Complaint, ECF No. 1. 1 Subsequent to the filing of the Complaint,

the U.S. House of Representatives Committee on Ways and Means

(“CWM” or the “Committee”) intervened as a defendant. See Minute

Order (Sept. 26, 2017). On March 8, 2018, the Court referred the

case to a Magistrate Judge for a Report and Recommendation (“R.

& R.”) on the pending Cross-Motions for Summary Judgment, and

the case was randomly referred to Magistrate Judge Deborah A.

1 When citing electronic filings throughout this Opinion, the Court refers to the ECF page numbers, not the page numbers of the filed documents. 1 Robinson. See generally, Docket for Civ. Act. No. 17-287.

Thereafter, on July 24, 2018, the Court referred the Plaintiff’s

Motion for Judgment on the Pleadings to Magistrate Judge

Robinson. See generally id.

Pending before the Court are Defendants’ Motion for Summary

Judgment, see Mot. for Summ. J., ECF No. 25; the Committee on

Ways and Means’ (“CWM” or “the Committee”) Motion for Summary

Judgment, see Mot. for Summ. J. of the Comm. on Ways and Means

of the U.S. H.R. (“CWM’S MSJ”), ECF No. 27; and Plaintiff’s

Cross-Motion for Summary Judgment, see Cross-Mot. for Summ. J.

(“Pl.’s XMSJ”), ECF No. 30. Also pending before this Court is

Plaintiff’s Motion for Judgment on the Pleadings, see Mot. for

J. on the Pleadings (“Pl.’s MJP”), ECF No. 45.

Magistrate Judge Robinson issued a R. & R. recommending

that this Court deny Plaintiff’s Motion for Judgment on the

Pleadings. See R. & R., ECF No. 48 at 1. Magistrate Judge

Robinson issued a second R. & R. recommending that this Court

grant in part and deny in part Defendants’ Motion for Summary

Judgment, grant CWM’s Motion for Summary Judgment, and deny

Plaintiff’s Cross-Motion for Summary Judgment, as well as

Plaintiff’s requests for in camera review and discovery. See R.

& R., ECF No. 49 at 26.

Plaintiff raises several objections to Magistrate Judge

Robinson’s R. & R.’s. See generally Plaintiff’s Objections to

2 the Magistrate Judge’s Proposed Findings and Recommendations

(“Pl.’s J. on the Pleadings Objections”), ECF No. 50;

Plaintiff’s Objections to the Magistrate Judge’s Proposed

Findings and Recommendations (“Pl.’s MSJ Objections”), ECF No.

51. In addition, Defendants also raise objections to the R. & R.

See Defs.’ Limited Objections to Magistrate Judge’s Proposed

Findings and Recommendations (“Defs.’ MSJ Objections”), ECF No.

52.

Upon careful consideration of the R. & R.’s, the objections

of both parties and opposition thereto, the applicable law, and

the entire record herein, the Court hereby ADOPTS the R. & R. as

to the Motion for Judgment on the Pleadings, see ECF No. 48;

ADOPTS IN PART AND REJECTS IN PART Magistrate Judge Robinson’s

R. & R. as to the Motion for Summary Judgment, see ECF No. 49;

GRANTS IN PART AND DENIES IN PART Defendants’ Motion for Summary

Judgment, see ECF No. 25; GRANTS IN PART, DENIES IN PART AND

HOLDS IN ABEYANCE IN PART Plaintiff’s Motion for Summary

Judgment, see ECF No. 30; and DENIES Plaintiff’s requests for in

camera review and discovery, see id. In addition, in view of the

Court’s grant of summary judgment to Defendants, the Court FINDS

AS MOOT CWM’s Motion for Summary Judgment, see ECF No. 27.

3 I. Background 2

American Oversight is an organization that seeks to promote

transparency in government by submitting FOIA requests and

publishing the information gained from such requests to educate

the public about government activities. See Compl., ECF No. 1 ¶

6. This lawsuit was initiated in response to issues arising out

of American Oversight’s FOIA request for information regarding

health care reform legislation. See generally id.

HHS is a federal agency responsible for the regulation and

implementation of legislation concerning, among other things,

healthcare. See R. & R., ECF No. 49 at 2. In particular, HHS

played a significant role in the development of implementation

strategies for the health care reform bill that served as the

focus of Plaintiff’s FOIA request: the American Health Care Act

(“AHCA”). See Decl. of Kristin S. Skrzycki (“Skrzycki Decl.”),

ECF No. 25-5 ¶¶ 11–14, 16–18. HHS’s role also included reaching

out to congressional staff to both provide technical assistance

and to receive information on congressional happenings to

evaluate potential regulations and operational changes. Id. ¶¶

9, 14.

The Office of Management and Budget (“OMB”) is an executive

agency tasked with advising the President on proposed

2 The Background section closely tracks Magistrate Judge Robinson’s R. & R.s. See ECF Nos. 48-49, Background. 4 legislation and other matters being considered in Congress. See

Decl. of Jonathan Slemrod (“Slemrod Decl.”), ECF No. 25-3 ¶ 8.

This advisory process lasts throughout congressional discussion

of the bill and culminates with a final recommendation typically

submitted to the President after the bill is passed by Congress.

Id. ¶ 9. OMB is also tasked with the preparation of Statements

of Administration Policy (“SAPs”) to be issued before a vote is

held, the drafting of which involves a process of gathering

input from all parties interested in a given piece of

legislation. Id. ¶¶ 8, 12. That list of parties often includes

members of Congress and congressional staff who are

knowledgeable on the subject matter for guidance in crafting a

more informed statement. Id. ¶ 12. Finally, OMB has a role in

coordinating expert opinions to develop executive positions and

policies, as well as in aiding Congress in drafting legislation.

Id. ¶¶ 14, 17.

In March of 2017, Plaintiff FOIA requests to HHS and OMB

seeking disclosure of the following:

(1) All communications, meeting notices, meeting agendas, informational material, draft legislation, talking points, or other materials exchanged between HHS and any members of Congress or congressional staff relating to health care reform.

(2) All calendar entries for the Secretary, any political or SES appointees in the Secretary’s office, and the Acting Assistant Secretary for Legislation, or anyone 5 maintaining calendars on behalf of these individuals, relating to health care reform.

Compl., ECF No. 1 ¶ 11 (the request sent to OMB was

substantially the same as the request sent to HHS, quoted here).

This litigation was initiated on May 4, 2017, primarily

over a dispute regarding expedited processing for American

Oversight’s FOIA request, although Plaintiff’s complaint also

alleged that Defendants failed to conduct adequate searches, and

wrongfully withheld nonexempt records. Id. at 10-12. American

Oversight argued that it was entitled to an expedited process

because of its status as “a person primarily engaged in

disseminating information,” while the agencies argued they could

not comply with the request on such a short schedule because of

the high volume of potentially responsive documents identified

by their searches. Id. at 4; see Mot. Hearing Proceedings Tr.,

ECF No. 13 at 4. The Court set a final production due date for

September 5, 2017 for the submission of all responsive

documents, with one third of the documents to be submitted each

month on a rolling basis. See Minute Order (May 25, 2017).

The documents submitted by the agencies on July 31, 2017

(as part of the second round of production) contained several

records with redacted information, including calendar entries

and emails exchanged with Congress, which the agencies argued

were exempt from disclosure under the Exemption 5 deliberative

process privilege. See Mem. P. & A. Supp. Defs.’ Mot. Summ. J. 6 (“Defs.’ MSJ”), ECF No. 25-1 at 18. Plaintiff filed a Status

Report and Request for Hearing regarding the redacted documents,

which included primarily emails between congressional staff and

staff from OMB and HHS. See ECF No. 15 at 1–2. The Court denied

the motion for a hearing, however, after concluding that a

hearing on the redacted documents was premature. See Minute

Order (Aug. 4, 2017). Plaintiff’s claim that the emails were

improperly redacted is now at issue in the pending motion for

summary judgment.

On September 15, 2017, CWM filed a motion to intervene as a

Defendant on the ground that the original Defendants disclosed

certain redacted documents involving protected congressional

records of the Committee. See Mot. to Intervene, ECF No. 19 at

1–2. The documents in question contain communications between

staff members of the Committee and staff members in HHS and OMB,

discussing health care reform. See Decl. of Allison E. Halataei

(“Halataei Decl.”), ECF No. 27-2 ¶ 8.

The Committee alleged that HHS and OMB, in their final

round of document production, submitted documents containing

“unredacted portions of four of the Committee’s confidential

congressional records, which are not subject to FOIA and should

not have been disclosed even in part.” Mot. to Intervene, ECF

No. 19 at 7. The four documents in question are email chains,

composed of twenty-five emails in total. See Reply in Supp. of

7 Pl.’s Cross-Mot. for Summ. J. (“Pl.’s XMSJ Reply”), ECF No. 37

at 26 n.13. The Committee further alleged that the

communications in question were marked with a legend from the

Committee, expressing the Committee’s clear intent to control

the correspondence and responses thereto as congressional

records. CWM’S MSJ, ECF No. 27 at 14. The legend states the

following:

This document and any related documents, notes, draft and final legislation, recommendations, reports, or other materials generated by the Members or staff of the Committee on Ways and Means are records of the Committee, remain subject to the Committee’s control, and are entrusted to your agency only for use in handling this matter. Any such documents created or compiled by an agency in connection with any response to this Committee document or any related Committee communications, including but not limited to any replies to the Committee, are also records of the Committee and remain subject to the Committee’s control. Accordingly, the aforementioned documents are not ‘agency records’ for purposes of the Freedom of Information Act or other law.

Exhibit A, ECF No. 27-2 at 5. Of the twenty-five emails

comprising the four email chains, only six included the legend

(though it was included at least once in each chain). Pl.’s XMSJ

Reply, ECF No. 37 at 26 n.13; see Decl. & Exs., ECF No. 27-2 at

5, 49–50, 53, 55, 59. The Committee maintains that all documents

containing the legend, as well as those relating to the legend,

are not “agency records” within the meaning of FOIA and

8 therefore are not subject to disclosure. CWM’S MSJ, ECF No. 27

at 13-14.

American Oversight filed a response to the Motion to

Intervene on September 26, 2017, stating that it would not

oppose the motion at that time. See Pl.’s Resp. to Mot. for

Leave to Intervene, ECF No. 24 at 1-2. American Oversight did,

however, note that it did not intend to waive any arguments that

might be made in response to the Committee’s motion for summary

judgment, which American Oversight would address in its own

summary judgment brief. Id. at 2. In light of American

Oversight’s response, the Court granted as unopposed the

Committee’s Motion to Intervene. Minute Order (Sept. 26, 2017).

Also on September 26, 2017, Defendants HHS and OMB moved

for summary judgment, as did CWM in a separate motion. See

Defs.’ MSJ, ECF No. 25-1; CWM’S MSJ, ECF No. 27. Plaintiff

cross-moved and opposed both motions on October 17, 2017. See

Pl.’s XMSJ, ECF No. 30. CWM and Defendants replied on November

3, 2017. See Reply Mem. in Supp. of Mot. for Summ. J. of CWM of

the U.S. H.R. and in Opp’n to American Oversight’s Cross-Mot.

for Summ. J. (“CWM MSJ Reply”), ECF No. 33; Mem. of P. & A. in

Opp’n to Pl.’s Mot. for Summ. J. and in Reply in Supp. of Defs.’

Mot. for Summ. J. (“Defs.’ MSJ Reply”), ECF No. 34. Plaintiff

filed its own reply on November 10, 2017. See Pl.’s XMSJ Reply,

ECF No. 37. On March 8, 2018, pursuant to Local Rule 72.2, Judge

9 Sullivan referred the case to a Magistrate Judge for a R. & R.

on the pending Cross-Motions for Summary Judgment, and the case

was randomly referred to Magistrate Judge Deborah A. Robinson.

See generally, Docket for Civ. Act. No. 17-287.

Thereafter, on July 23, 2018, Plaintiff further moved for

Judgment on the Pleadings with respect to CWM. See Pl.’s MJP,

ECF No. 45. CWM opposed, see Opp’n of CWM to Pl.’s Mot. for J.

on the Pleadings (“CWM MJP Opp’n”), ECF No. 46; and Plaintiff

replied, see Reply in Supp. of Pl.’s Mot. for J. on the

Pleadings as to Defendant-Intervenor (“Pl.’s MJP Reply”), ECF

No. 47. On July 24, 2018, the Court referred the Plaintiff’s

Pleadings. See R. & R. (“MJP R. & R.”), ECF No. 48 at 1.

Magistrate Judge Robinson issued a second R. & R. recommending

that the Court grant in part and deny in part Defendants’ Motion

for Summary Judgment, grant CWM’s Motion for Summary Judgment,

and deny Plaintiff’s Cross-Motion for Summary Judgment, along

with Plaintiff’s requests for in camera review and discovery.

See R. & R. (“MSJ R. & R.”), ECF No. 49 at 26.

Plaintiff raised several objections to Magistrate Judge

Robinson’s R. & R.’s. See generally Pl.’s MJP Objs., ECF No. 50;

10 Pl.’s MSJ Objections, ECF No. 51. Defendants also raised

objections to the R & R. See Defs.’ MSJ Objections, ECF No. 52.

CWM responded to both sets of Plaintiff’s objections. See Resp.

of CWM to Pl.’s Objs. to the Magistrate Judge’s Proposed

Findings and Recommendations (“CWM Opp’n MJP Objs.”), ECF No.

53; Resp. of CWM to Pl.’s Objs. to the Magistrate Judge’s

Proposed Findings and Recommendations (“CWM Opp’n MSJ Objs.”),

ECF No. 56. Plaintiff also responded to Defendants’ objections.

See Pl.’s Opp’n to Defs.’ Ltd. Objs. to the Magistrate Judge’s

Proposed Findings and Recommendations (“Pl.’s Opp’n. MSJ

Objections”), ECF No. 54.

Plaintiff then filed a reply to CWM’s response to

Plaintiff’s objections to the R. & R. addressing Plaintiff’s

Motion for Judgment on the Pleadings. See Reply in Supp. of

Objs. to the Magistrate Judge’s Proposed Findings and

Recommendations (“Pl.’s Reply MJP Objs.”), ECF No. 55.

Defendants filed their own reply to Plaintiff’s opposition to

their objections, and simultaneously responded to Plaintiff’s

objections, see Defs.’ Resp. to Pl.’s Objs. to the Magistrate

Judge’s Proposed Findings and Recommendations and Reply in

Further Supp. of Defs.’ Ltd. Objs. (“Defs.’ Reply MSJ Objs.”),

ECF No. 57. Finally, Plaintiff submitted a reply. See Reply in

Supp. of Pl.’s Objs. to the Magistrate Judge’s Proposed Findings

and Recommendations (“Pl.’s Reply MSJ Objs.”), ECF No. 59.

11 A series of Notices of Supplemental Authority (“NSAs”)

followed. First, on September 17, 2018, Plaintiff filed a NSA

relevant to its challenge, in its Motion for Summary Judgment,

to OMB’s use of Exemption 5 to redact calendar entries. See NSA,

ECF No. 60. Defendants responded differentiating the authority.

See Defs.’ Resp. to Pl.’s NSA, ECF No. 61. A few months later,

on March 31, 2019, Plaintiff filed a NSA also addressing the

issue of the application of Exemption 5. See Pl.’s NSA, ECF No.

67. Defendants then filed a NSA as to Exemption 5 on July 27,

2020, see NSA, ECF No. 74; which Plaintiff attempted to

distinguish, see Resp. to NSA, ECF No. 75. Defendants submitted

a second NSA related to Exemption 5 on January 18, 2022, see

NSA, ECF No. 78, to which Plaintiff responded, see Resp. to NSA,

ECF No. 79. The motions are fully briefed and ready for

adjudication.

II. Legal Standard

A. Objections to a Magistrate Judge's Report and Recommendation

Pursuant to Federal Rule of Civil Procedure 72(b), a party

may file specific written objections once a magistrate judge has

entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).

A district court “may accept, reject or modify the recommended

disposition.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §

636(b)(1) (“A judge of the court may accept, reject, or modify,

in whole or in part, the findings or recommendations made by the 12 magistrate judge.”). A district court “must determine de novo

any part of the magistrate judge's disposition that has been

properly objected to.” Fed. R. Civ. P. 72(b)(3). “If, however,

the party makes only conclusory or general objections, or simply

reiterates his original arguments, the Court reviews the [R. &

R.] only for clear error.” Houlahan v. Brown, 979 F. Supp. 2d

86, 88 (D.D.C. 2013) (citation omitted). “Under the clearly

erroneous standard, the magistrate judge's decision is entitled

to great deference” and “is clearly erroneous only if on the

entire evidence the court is left with the definite and firm

conviction that a mistake has been committed.” Buie v. D.C., No.

CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C. Sept. 12, 2019)

(citing Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C. 2009))

(internal quotation marks omitted).

Objections must “specifically identify the portions of the

proposed findings and recommendations to which objection is made

and the basis for objection.” LCvR 72.3(b). “[O]bjections which

merely rehash an argument presented to and considered by the

magistrate judge are not ‘properly objected to’ and are

therefore not entitled to de novo review.” Shurtleff v. EPA, 991

F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, No.

08-2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)).

13 B. Summary Judgment

Federal Rule of Civil Procedure 56 provides that summary

judgment motions must be granted if “there is no genuine dispute

as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party

bears the initial burden “of informing the district court of the

basis for its motion, and identifying those portions of ‘the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be

discharged by ‘showing’ . . . that there is an absence of

evidence to support the nonmoving party’s case.” Celotex, 477

U.S. at 325.

In evaluating a summary judgment motion, “[t]he evidence of

the non-movant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255

(quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59

(1970)). Summary judgment turns on “whether the evidence

presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law.” Id. at 251-52. “[I]f the evidence is such

14 that a reasonable jury could return a verdict for the nonmoving

party”–and thus a “genuine” dispute over a material fact exists–

then summary judgment is not available. Id. at 248.

For purposes of summary judgment, materiality is determined

by the substantive law of the action. Id. Accordingly, the

substantive law identifies “which facts are critical and which

facts are irrelevant,” and “[o]nly disputes over facts that

might affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment.” Id.

Similarly, the applicable substantive evidentiary standards of

the action guide “whether a given factual dispute requires

submission to a jury.” Id. at 255. The Court’s role at the

summary judgment stage “is not . . . to weigh the evidence and

determine the truth of the matter but to determine whether there

is a genuine issue for trial.” Id. at 249.

C. FOIA

FOIA is based on the recognition that an informed citizenry

is “vital to the functioning of a democratic society, needed to

check against corruption and to hold the governors accountable

to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S.

214, 242 (1978). It was enacted to “pierce the veil of

administrative secrecy and to open agency action to the light of

public scrutiny,” and it favors “full agency disclosure.” Dep’t

of the Air Force v. Rose, 425 U.S. 352, 360–61 (1976) (quoting

15 Rose v. Dep’t of the Air Force, 495 F.2d 261, 263 (2d Cir.

1974)). FOIA cases are usually resolved on motions for summary

judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d

521, 527 (D.C. Cir. 2011). The agency has the burden of

justifying its response to the FOIA request it received, and the

court reviews its response de novo. 5 U.S.C. § 552(a)(4)(B).

D. Adequate Search

To prevail on summary judgment in a FOIA case, the agency

must show that it conducted an adequate search for records

responsive to the plaintiff’s FOIA request. See Morley v. CIA,

508 F.3d 1108, 1114 (D.C. Cir. 2007). To make a prima facie

showing of adequacy, the agency must demonstrate that it made a

good-faith effort to search for responsive records “using

methods which can be reasonably expected to produce the

information requested.” Reporters Comm. for Freedom of Press v.

FBI, 877 F.3d 399, 402 (D.C. Cir. 2017) (quoting Oglesby v. U.S.

Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see Iturralde

v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)

(adequacy depends on the “appropriateness of the methods used”

rather than the “fruits of the search”).

It may do so by submitting “[a] reasonably detailed

affidavit, setting forth the search terms and the type of search

performed, and averring that all files likely to contain

responsive materials (if such records exist) were searched.”

16 Reporters Comm., 877 F.3d at 402 (quoting Oglesby, 920 F.2d at

68). Such affidavits “are accorded a presumption of good faith,

which cannot be rebutted by ‘purely speculative claims about the

existence and discoverability of other documents.’” SafeCard

Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)

(quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771

(D.C. Cir. 1981)). However, “[a]t a bare minimum, the agency’s

affidavits need to specify ‘what records were searched, by whom,

and through what process.’” Rodriguez v. DOD, 236 F. Supp. 3d

26, 38 (D.D.C. 2017) (quoting Steinberg v. DOJ, 23 F.3d 548, 552

(D.C. Cir. 1994)).

“The agency fails to meet this burden such that summary

judgment is inappropriate when the agency fails to set forth the

search terms and the type of search performed with specificity

or otherwise provides ‘no information about the search

strategies of the [agency] components charged with responding to

[a] FOIA request’ and ‘no indication of what each [component’s]

search specifically yielded.’” Otero v. DOJ, 292 F. Supp. 3d

245, 251 (D.D.C. 2018) (quoting Reporters Comm., 877 F.3d at

402).

E. Discovery

“It is well established that discovery is rare in FOIA

cases.” Cole, 285 F. Supp. 3d at 76; see Thomas v. FDA, 587 F.

Supp. 2d 114, 115 n.2 (D.D.C. 2008) (noting that “discovery is

17 an extraordinary procedure in a FOIA action”). “Where an

agency’s declarations are insufficient to support a finding that

its search was adequate, courts ‘generally will request that an

agency supplement its supporting declarations rather than order

discovery.’” Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175,

183 (D.D.C. 2013) (quoting Wolf v. CIA, 569 F. Supp. 2d 1, 10

(D.D.C. 2008)). “However, discovery may be granted when [a]

plaintiff has made a sufficient showing that the agency acted in

bad faith, has raised a sufficient question as to the agency’s

good faith, or when a factual dispute exists and the plaintiff

has called the affidavits submitted by the government into

question.” Citizens for Responsibility and Ethics in Wash. v.

DOJ, No. Civ. 05- 2078 (EGS), 2006 WL 1518964, at *3 (D.D.C.

June 1, 2006) [Plaintiff hereinafter “CREW”] (internal citations

omitted).

F. Judgment on the Pleadings

A motion for judgment on the pleadings may be made at any

time “[a]fter the pleadings are closed—but early enough not to

delay trial.” Fed. R. Civ. P. 12(c). “Pleadings include any

‘copy of a written instrument that is an exhibit to a pleading,’

Fed. R. Civ. P. 10(c), such as relevant and authentic documents

attached to the complaint. Dist. No. 1, Pac. Coast Dist., Marine

Engineers Beneficial Ass'n, AFL-CIO v. Liberty Mar. Corp., 933

F.3d 751, 760 (D.C. Cir. 2019) (citation omitted). A motion

18 pursuant to Rule 12(c) is appropriately granted when, at the

close of the pleadings, “no material issue of fact remains to be

resolved, and [the movant] is clearly entitled to judgment as a

matter of law.” Montanans for Multiple Use v. Barbouletos, 542

F.Supp.2d 9, 13 (D.D.C. 2008) (citations omitted), aff'd 568

F.3d 225 (D.C. Cir. 2009). When evaluating a motion

for judgment on the pleadings under Federal Rule of Civil

Procedure 12(c), courts employ the same standard that governs

a Rule 12(b)(6) motion to dismiss. Jung v. Ass'n of Am. Med.

Colls., 339 F. Supp. 2d 26, 35–36 (D.D.C. 2004). A court must

treat the complaint's factual allegations as true, “even if

doubtful in fact,” Twombly, 550 U.S. at 555, but it need not

accept as true legal conclusions set forth in a

complaint. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937,

1948 (2009). Accordingly, a court must accept the plaintiff's

well-pleaded factual allegations to the extent that “they

plausibly give rise to an entitlement to relief,” id. at

1950, and “may thus only grant judgment on the pleadings if it

appears, even accepting as true all inferences from the

complaint's factual allegations, that the plaintiff cannot prove

any set of facts entitling him to relief.” Lans v. Adduci

Mastriani & Schaumberg L.L.P., 786 F. Supp. 2d 240, 265 (D.D.C.

2011). Because Rule 12(c) provides judicial resolution at an

early stage of a case, the party seeking judgment on

19 the pleadings shoulders a heavy burden of justification. Liberty

Mar. Corp., 933 F.3d at 760.

III. Analysis

A. Motion for Judgment on the Pleadings

American Oversight argues that it should be granted

judgment on the pleadings as to CWM’s request that the Court

enjoin Plaintiff from receiving certain records because it has

“intervened in this action but failed to identify a cause of

action entitling it to do so or to state any claim upon which

relief can be granted.” Pl.’s MJP, ECF No. 45 at 6. Plaintiff

adds that because CWM seeks relief that does not exist under

FOIA, “its purported Affirmative Defense [asking the Court to

enjoin Plaintiff from receiving the Contested Records pursuant

to FOIA] must be dismissed for lack of federal subject matter

jurisdiction, or alternatively, for failure to state a claim.”

Id. at 7.

CWM responds that because it intervened as a defendant,

rather than a plaintiff, it is not obligated to assert a cause

of action in this matter. CWM’s MJP Opp’n, ECF No. 46 at 10. It

asserts that “it is well-established that where, as here, a

third party has an interest in the documents sought by a FOIA

requester, that party can intervene as a defendant to assert

defenses against the requester’s attempt to compel the

production of the documents.” Id. CWM further argues that it has

20 no need to file a “reverse FOIA” action against Defendants

because it has not sought to enjoin Defendants from producing

documents to Plaintiff, since the reason the congressional

records are at issue is Plaintiff’s FOIA case, and Defendants

would not need to be enjoined if they are awarded summary

judgment as to the documents at issue for CWM. Id. at 14-15.

Plaintiff replies that CWM’s actions are unlike those CWM cites

because it did not “buttress a position taken by the party

defendant in the case.” Pl.’s MJP Reply, ECF No. 47 at 6.

Instead, Plaintiff argues that CWM is asking the Court to

“overturn an informal administrative determination that the

defendant agencies have already made that the Contested Records

are agency records.” Id. at 6-7.

Magistrate Judge Robinson finds that CWM “was properly

admitted to this action as Defendant-Intervenor, having

satisfied all the requirements therefor,” and is consequently

“permitted to bring the same affirmative defense that either of

the named defendants might have brought, including the

‘congressional records’ defense at issue here.” MJP R. & R., ECF

No. 48 at 6-7. Magistrate Judge Robinson also finds that because

CWM properly entered this litigation as a Defendant-Intervenor,

this Court “has subject-matter jurisdiction over this action and

all claims made therein.” Id. at 8. As a result, Magistrate

21 Judge Robinson recommends that this Court deny the Motion for

Judgment on the Pleadings. Id. at 9.

Plaintiff objects to Magistrate Judge Robinson’s R. & R.,

arguing that: (1) CWM cannot challenge an adverse agency

determination as a defendant in a FOIA action; and (2) CWM’s

claim is inadequate and the Court lacks subject-matter

jurisdiction because the positions of CWM and Defendants are not

aligned. See Pl.’s MJP Objs., ECF No. 50 at 11. The Court

discusses each of these in turn. The Court does not discuss the

parts of Magistrate Robinson’s R. & R. to which no objection is

raised.

1. The Committee Is Properly Acting as a Defendant in a FOIA Action

Plaintiff argues that “the Committee’s claim amounts to a

direct challenge to the executive branch’s treatment of the

Contested Records” since “the defendant agencies have evinced

their informal administrative determination that the Contested

Records are agency records subject to FOIA” whereas CWM “claims

that the Contested Records are, instead, congressional records

not subject to FOIA.” Pl.’s MJP Objs., ECF No. 50 at 7-8.

Plaintiff argues that this alleged misalignment in positions

makes this case different from the cases cited by CWM, in which

the intervenor joined the action to support the agency’s

determinations regarding the records at issue, “not to challenge

an adverse determination made by the agency.” Id. at 9. CWM 22 responds that “Defendants have vigorously resisted disclosure of

the redacted contents of the congressional communications at

issue, asserting that those communications were intended to be

confidential; the Committee’s affirmative defense provides an

additional ground for rejecting Plaintiff’s attempts to compel

disclosure of those documents, and therefore supplements the

defenses being asserted by Defendants.” CWM Opp’n MJP Objs., ECF

No. 53 at 15. The Court agrees with CWM.

As a threshold matter, the Court reviews Magistrate Judge

Robinson’s R. & R. only for clear error. Pursuant to Federal

Rule of Civil Procedure 72(b), once a magistrate judge has

entered a recommended disposition, a party may file specific

written objections. The district court “must determine de novo

any part of the magistrate judge’s disposition that has been

properly objected to,” and “may accept, reject or modify the

recommended disposition.” Fed. R. Civ. P. 72(b)(3). Proper

objections “shall specifically identify the portions of the

proposed findings and recommendations to which objection is made

and the basis for objection.” Local R. Civ. P. 72.3(b); see also

Means v. District of Columbia, 999 F. Supp. 2d 128, 132 (D.D.C.

2013).

“If, however, the party makes only conclusory or general

objections, or simply reiterates his original arguments, the

Court reviews the [R. & R.] only for clear error.” Houlahan, 979

23 F. Supp. 2d at 88 (internal citation omitted). “Under the

clearly erroneous standard, the magistrate judge's decision is

entitled to great deference” and “is clearly erroneous only if

on the entire evidence the court is left with the definite and

firm conviction that a mistake has been committed.” Buie, No. CV

16-1920 (CKK), 2019 WL 4345712, at *3.

Here, Plaintiff’s objection as to the adversity of CWM and

Defendants’ positions is repeated from their filings on the

Motion for Judgment on the Pleadings. See Pl.’s MJP Reply, ECF

No. 47 at 8, 9, 14, 16. Further, Magistrate Judge Robinson

specifically addressed this argument in her R. & R. See MJP R. &

R., ECF No. 48 at 5 (stating that “[t]he fact that the agencies

failed to raise the specific ‘congressional records’ defense and

instead simply redacted the information from the documents

pursuant to FOIA’s Exemption 5 does not provide a significant

enough discrepancy to label the two approaches ‘directly

adverse,’ or even ‘inapposite’”) (citation omitted). The Court

therefore only reviews the R. & R. for clear error and does not

find any here.

First and foremost, the Court is unpersuaded that

Defendants and CWM have adverse positions. As Magistrate Judge

Robinson points out, “[b]oth Defendants and the Committee have

sought, from the time this issue arose, to preserve the

confidentiality of the contested documents.” MJP R. & R., ECF

24 No. 48 at 5 (citations omitted). That CWM and Defendants present

different defenses for why the records should not be disclosed

does not mean their positions are adverse. CWM is not, as

Plaintiff suggests, appealing the agencies’ decision, but rather

attempting to “prevent any further disclosure.” MJP R. & R., ECF

No. 48 at 5. For this reason, it is irrelevant if CWM “surely

intends this potential finding to bind Defendants with respect

to their treatment of the Contested Records in the future,

including when responding to other future FOIA requests.” Pl.’s

MJP Objs., ECF No. 50 at 10.

Plaintiff describes the case law cited by CWM as a “laundry

list of inapposite citations,” and attempts to distinguish the

authorities, Pl.’s Reply MJP Objs., ECF No. 55 at 6; but as CWM

points out, Plaintiff “offers no explanation or argument as to

why it would make any difference [for the purpose of this

lawsuit] if the Committee’s defense were adverse to Defendants’

position.” CWM Opp’n MJP Objs., ECF No. 53 at 16. Simply put,

Plaintiff presents no case law as to why an adverse position,

were it to exist, would impact the decision here.

Plaintiff does suggest that “were the Committee to prevail

in arguing that the Contested Records are, in fact,

‘congressional records,’ Defendants would be severely limited in

how they could use the Contested Records and related documents

going forward.” Pl.’s MJP Objs., ECF No. 50 at 9. However, as

25 CWM points out, Defendants’ internal use of the documents is

irrelevant to CWM’s argument, and Plaintiff’s own argument is

unsupported by precedent. See ACLU v. CIA, 823 F.3d 655, 665,

667 (D.C. Cir. 2016) (upholding congressional-record status of

document even though agency had “discretion to use the

[document] for internal purposes” and to disseminate within the

executive branch “as broadly as appropriate,” and holding that

“[i]t does not matter that the [document] was neither stored on

the CIA’s segregated network drive nor kept in the CIA’s Reading

Room”). For these reasons, the Court concludes that Magistrate

Judge Robinson did not err in concluding that CWM is a proper

defendant in this action.

2. The Court Has Subject Matter Jurisdiction Over this Action

Plaintiff next argues that CWM has failed to state a claim

and that the Court lacks subject matter jurisdiction over the

claim if CWM did succeed in stating one, on the same ground that

the positions of CWM and Defendants are adverse. See Pl.’s MJP

Objs., ECF No. 50 at 11. Plaintiff essentially repackages its

earlier arguments on adversity, arguing that “the Committee’s

claim for relief, while purportedly directed [as an affirmative

defense] at Plaintiff, is in reality a claim for relief against

the defendant agencies,” in the form of enjoining Plaintiff’s

access to the Contested Records. Id. at 13. Plaintiff concludes

that “[b]ecause the relief the Committee seeks is only available 26 under the APA [as a reverse FOIA lawsuit], and not through FOIA,

the Committee has failed to state a claim upon which relief can

be granted.” Pl.’s MJP Objs., ECF No. 50 at 14. 3

CWM responds that “Plaintiff offers no authority for its

counter-intuitive theory that the Committee was somehow

precluded from asserting an affirmative defense against

Plaintiff’s efforts to compel disclosure and was instead

obligated to file a separate action against Defendants to enjoin

them from doing something that they have evidenced no

inclination to do in the absence of legal compulsion under

FOIA.” CWM Opp’n MJP Objs., ECF No. 53 at 20. Plaintiff replies

that CWM is refusing to acknowledge that it is in fact seeking

an injunction, which is unsupported by FOIA. Pl.’s MJP Reply,

ECF No. 55 at 3-4. The Court reviews Magistrate Judge Robinson’s

R. & R. only for clear error since American Oversight’s

arguments are repeated from their Motion filings. See Pl.’s MJP,

ECF No. 45 at 11-14; see also Houlahan, 979 F. Supp. 2d at 88.

3 American Oversight relatedly argues that “the Magistrate Judge’s conclusion that the Court has subject matter jurisdiction over the Committee’s ‘Affirmative Defense’ also rests on the mistaken conclusion that the Committee’s position is aligned with the position of the defendant agencies such that intervening as a defendant in this FOIA action was proper.” Pl.’s MJP Objs., ECF No. 50 at 14. The Court does not reach this argument, since it has already determined that the positions are not adverse.

27 The Court concludes that Magistrate Judge Robinson did not err

in her recommendation.

As Magistrate Judge Robinson states, “FOIA does not provide

an independent cause of action for a party to bar an executive

agency’s willing disclosure of documents, but it is another

matter entirely to argue that defendants in a FOIA case may not

mount any defense against a plaintiff’s attempt to use the

statute to compel disclosure, as Plaintiff argues here.” MJP

R. & R., ECF No. 48 at 6. Here, the relief CWM seeks supplements

Defendants’ defense, since the “goal of both defenses—Exemption

5 and congressional records—is to prevent the disclosure of the

documents for the purpose of preserving their confidential

nature.” Id. at 5. Plaintiff points to no authority that

defenses are required to be consistent with each other.

Nor is the Court persuaded by Plaintiff’s misleading

characterization that CWM is seeking an injunction against

Defendants. As a practical matter, it is correct that if

Plaintiff prevails in this suit against Defendants, CWM’s

intervention, if successful, would result in Defendants having

to withhold documents. However, CWM’s lawsuit is directed at

preventing a release that is being compelled by Plaintiff, while

Defendants have resisted disclosure and explained that they “had

an expectation that [their] communications [with Congress] would

be kept confidential.” Slemrod Decl., ECF No. 25-3 ¶ 19;

28 Skrzycki Decl., ECF No. 25-5 ¶ 11 (“I expected that

communications between HHS and Congress would be kept

confidential.”). Defendants and CWM are aligned in their goal of

preventing further disclosure, and their defenses thus serve to

supplement each other, as Magistrate Judge Robinson found. See

MJP R. & R., ECF No. 48 at 5.

Finding no clear error in Magistrate Judge Robinson’s R. &

R., the Court hereby ADOPTS the R. & R., see ECF No. 48, and

DENIES the Motion for Judgment on the Pleadings, see ECF No. 45.

B. Motion for Summary Judgment

Defendants OMB and HHS move for summary judgment, arguing

that they properly withheld information from disclosure pursuant

to FOIA Exemption 5. See generally Defs.’ MSJ, ECF No. 25-1.

Defendant-Intervenor CWM also moves for summary judgment with

respect to its affirmative defense on the ground that four

documents at issue in this case are congressional records and

therefore not subject FOIA. See CWM’S MSJ, ECF No. 27 at 1.

Plaintiff American Oversight cross-moves for summary judgment,

arguing that Defendants improperly withheld information under

Exemption 5, and that Defendant-Intervenor CWM incorrectly

claims that four of the records produced by Defendants are not

subject to FOIA. See Pl.’s XMSJ, ECF No. 30 at 1. Plaintiff also

requests an in camera review of the documents so that the Court

may ascertain whether the exemption is applicable, id. at 39;

29 and asks the Court to grant discovery in the event the Court

denies its motions for summary judgment, id. at 53.

Magistrate Judge Robinson finds that: (1) the search

conducted by HHS was reasonably designed to turn up the

documents responsive to the request; (2) the legended documents

sought to be retained by CWM should have been withheld as

congressional documents and are not subject to disclosure under

FOIA; (3) the redacted documents can be appropriately withheld

under Exemption 5’s consultant corollary, but only with regard

to communications directly related to the agencies’ solicitation

for advice and the responses thereto and which are sufficiently

described by affidavit as being related to an agency

deliberation; (4) in camera review of the redacted documents is

neither necessary nor appropriate under these circumstances; and

(5) discovery is unnecessary to decide the case on summary

judgment. MSJ R. & R., ECF No. 49 at 2.

Plaintiff American Oversight objects: that (1) HHS’s search

was not adequate; (2) the redacted documents were not properly

withheld; (3) Defendants did not meet their burden of showing

that some of the challenged records are protected under the

deliberative process privilege; (4) Magistrate Judge Robinson

did not address Plaintiff’s arguments as to Defendants’

redactions in calendar entries and attachments; (5) the

contested records are not congressional records outside the

30 scope of FOIA; and (6) Plaintiff’s request for in camera review

should have been granted. Pl.’s MSJ Objs., ECF No. 51 at 3-4.

Defendants, in turn, object to the “Report and Recommendation’s

suggestion that the agencies’ affidavits and Vaughn indexes fail

to sufficiently identify a specific agency deliberative process

for some of the redacted communications.” Defs.’ MSJ Objs., ECF

No. 52 at 6. The Court discusses each of these objections in

turn, along with the appropriate standard of review for the

objections before. The Court does not discuss the parts of

Magistrate Robinson’s R. & R. to which no objection is raised.

1. HHS Conducted a Reasonably Adequate Search

An agency is entitled to summary judgment in a FOIA case with

respect to the adequacy of its search if the agency shows “that

it made a good faith effort to conduct a search for the

requested records, using methods which can be reasonably

expected to produce the information requested.” Oglesby v. Dep’t

of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (citations omitted),

superseded by statute on other grounds by Electronic FOIA

Amendments 1996, Pub. L. No. 104– 231, 110 Stat. 3048. “[T]he

issue to be resolved is not whether there might exist any other

documents possibly responsive to the request, but rather whether

the search for those documents was adequate.” Weisberg v. DOJ,

745 F.2d 1476, 1485 (D.C. Cir. 1984) (citation omitted). An

agency can establish the reasonableness of its search by

31 “reasonably detailed, nonconclusory affidavits describing its

efforts.” Baker & Hostetler LLP v. Dep’t of Commerce, 473 F.3d

312, 318 (D.C. Cir. 2006). “Agency affidavits are accorded a

presumption of good faith, which cannot be rebutted by ‘purely

speculative claims about the existence and discoverability of

other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,

1200 (D.C. Cir. 1991) (citation omitted). Here, Magistrate Judge

Robinson finds that HHS conducted a reasonably adequate search,

because it “conducted its searches using what it perceived to be

a reasonable set of search terms (the most commonly used

references) that would turn up the requested documents,” and

which covered the entire scope of the request. See MSJ R. & R.,

ECF No. 49 at 9. In response to this, Plaintiff first objects

that Magistrate Judge Robinson failed to consider “Plaintiff’s

argument that it was unreasonable for HHS to select search terms

based only on the terms most often used within HHS, when the

communications sought by Plaintiff’s FOIA request expressly

involved entities outside HHS.” Pl.’s MSJ Objs., ECF No. 51 at

9. Second, Plaintiff objects that “the Magistrate Judge failed

to give adequate weight to HHS’s concession that other terms

may, in fact, have been used by agency personnel.” Id. at 10.

Third, Plaintiff objects that “the Magistrate Judge did not

properly consider the available evidence showing that other

32 terms were, in fact, used by both agency personnel and members

of Congress.” Id. at 11.

Defendants respond that American Oversight’s arguments do

not “meaningfully engage with whether HHS appropriately

exercised its discretion to determine what constitutes a

reasonable search.” Defs.’ Opp’n MSJ Objs., ECF No. 57 at 28.

The Court agrees, and reviews Magistrate Judge Robinson’s R. &

R. only for clear error since Plaintiff essentially argues that

Magistrate Judge Robinson did not draw the right conclusions

based on the arguments in Plaintiff’s brief, which are

acknowledged in the R. & R. See MSJ R. & R., ECF No. 49 at 8.

“When a plaintiff questions the adequacy of the search an

agency made in order to satisfy its FOIA request, the factual

question it raises is whether the search was reasonably

calculated to discover the requested documents, not whether it

actually uncovered every document extant.” SafeCard Servs.,

Inc., 926 F.2d at 1201. Here, as Defendants point out, “[t]he

question is not whether it would be reasonable to expect that a

responsive record might contain the word ‘Obamacare’; rather,

the question is whether it would be reasonable to expect a

responsive record to contain none of the three terms HHS used.”

Id.; see also Weisberg, 745 F.2d at 1485. Even if, as Plaintiff

argues, “political interlocutors with whom HHS was

communicating” used different terminology than internal HHS

33 employees, see Pl.’s MSJ Objs., ECF No. 51 at 10; given that

they were interlocutors with whom HHS was communicating as part

of its operations, this Court concludes there is nothing

unreasonable in HHS choosing to search the most common forms of

reference “used in the day-to-day operations of the Department”:

the acronyms “ACA” and “AHCA”, see Defs.’ MSJ, ECF No. 25-4 at

6. As Magistrate Judge Robinson observed, “[a]ny document that

contained both an included term and an excluded term would still

have been responsive to the search.” MSJ R. & R., ECF No. 49 at

9. Contrary to Plaintiff’s assertion, HHS is not required to

“assert that other terms were not also used, or even that all of

the other proposed terms were used less frequently.” Pl.’s MSJ

Objs., ECF No. 51 at 10.

Nor is it true that Magistrate Judge Robinson “did not

terms were, in fact, used by both agency personnel and members

of Congress.” Id. at 11. Plaintiff itself states two sentences

before this assertion that Magistrate Judge Robinson “noted

HHS’s concession that congressional and HHS staffers—including

HHS Secretary Tom Price—occasionally referred to the law as

“Obamacare,” but nevertheless deemed the search adequate.” Id.

The reason Magistrate Judge Robinson was unpersuaded by the

evidence was a lack of “significant evidence to suggest that

other documents could be found that do not contain one of the

34 search terms used.” MSJ R. & R., ECF No. 49 at 9. This is in

keeping with the legal standard, which holds that “purely

speculative claims about the existence and discoverability of

other documents,” cannot rebut reasonably detailed agency

affidavits related to the adequacy of the search, such as those

provided in this case. SafeCard Servs., Inc., 926 F.2d at 1200;

see also Decl. of Michael Bell (“Bell Decl.”), ECF No. 25-4 ¶ 7;

Decl. of Thomas Hitter (“Hitter Decl.”), ECF No. 25-2 ¶ 6.

The Court concludes that Magistrate Judge Robinson did not

err in her R. & R., ADOPTS this portion of the R. & R., and

GRANTS Defendants’ Motion for Summary Judgment regarding the

adequacy of HHS’s search, see ECF No. 25.

2. The Redacted Documents Were Appropriately Withheld Under the Consultant Corollary

Exemption 5 protects from disclosure “inter-agency or

intra-agency memorandums or letters that would not be available

by law to a party other than an agency in litigation with the

agency.” 5 U.S.C. § 552(b)(5). The exemption ensures that

members of the public cannot obtain through FOIA records that

would be “normally privileged in the civil discovery context.”

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Thus, in

order to qualify for Exemption 5 privilege, the agency must: (1)

meet the threshold requirement that the disputed documents be

“intra-agency or interagency,” and (2) establish that they are

covered by a common law or statutory privilege that would exempt 35 them from civil discovery. Dow Jones & Co. v. Dep’t of Justice,

917 F.2d 571, 573–74 (D.C. Cir. 1990).

Under the “consultant corollary,” however, agencies retain

the ability to seek advice from bodies outside the executive,

where for the purpose of providing that advice, they are treated

as agency employees and thus satisfy the threshold requirement.

McKinley v. Bd. of Governors of the Fed. Reserve Sys., 647 F.3d

331, 336 (D.C. Cir. 2011). For an outside party to fall within

the consultant corollary exception to the Exemption 5 threshold

requirement, there are two pivotal conditions: (1) the outside

party cannot provide self- interested advice to the agency, and

(2) the agency must have solicited the advice from the party.

See Dep’t of Interior v. Klamath Water Users Protective Ass’n,

532 U.S. 1, 10–11 (2001); Nat’l Inst. Military Justice v. U.S.

Dep’t of Defense (“NIMJ”), 512 F.3d 677, 680 (D.C. Cir. 2008).

In particular, “communication that aids the agency’s

deliberative process [may] be protected as ‘intra-agency’” under

Exemption 5. Judicial Watch, Inc. v. DOT, 950 F. Supp. 2d 213,

218 (D.D.C. 2013); see also NIMJ, 512 F.3d at 681. Although the

Court of Appeals for the District of Columbia Circuit (“D.C.

Circuit”) has held that Congress is not an “agency” within the

meaning of FOIA, Dow Jones & Co, Inc., 917 F.2d at 574;

“communications between an agency and Congress [sh]ould receive

protection as intra-agency memoranda if they were ‘part and

36 parcel of the agency’s deliberative process.’” Rockwell Int’l

Corp. v. DOJ, 235 F.3d 598, 604 (D.C. Cir. 2001) (quoting Dow

Jones, 917 F.2d at 573–75).

a. The Documents Are Intra-Agency Records

i. Congress was Not Acting in Its Self-Interest

Magistrate Judge Robinson finds that in this Court, “the

relevant inquiry is not whether the party was simply self-

interested, but whether the advice provided by the consultant

conflicts with the agency’s ability to advance its own

interests.” MSJ R. & R., ECF No. 49 at 16. She concludes that

Congress’ members’ interests in the documents at issue are not

“adverse to the interests of the government, they are the

interests of the government” since Congress was providing advice

“in the interest of the American people” rather than its own

self-interest. Id. Plaintiff objects that Magistrate Judge

Robinson’s approach, which it perceives as “requiring a FOIA

requester to demonstrate that an outside consultant was acting

‘adverse to its competitors’ or ‘adverse to the government,’”

uses an inappropriately high bar for what constitutes an

“independent interest” sufficient to defeat the application of

the consultant corollary. Pl.’s MSJ Objs., ECF No. 51 at 15.

Plaintiff instead interprets the caselaw as focusing on “whether

or not the outside consultant had an ‘independent interest’ in

the outcome of the agency’s decisionmaking process.” Id. at 16.

37 Defendants respond that American Oversight is attempting to

broaden the reach of Klamath, and that an “an ‘independent

interest,’ standing alone, is not enough to defeat the

application of Exemption 5.” Defs.’ Opp’n MSJ Objs., ECF No. 57

at 15. The Court reviews Plaintiff’s objection de novo.

The legal standard for self-interest under the consultant

corollary is hotly debated. Klamath has spawned much discussion

as to whether an independent interest on the part of the

consultant is now disqualifying. See Am. Oversight v. U.S. Dep't

of Health & Hum. Servs., 380 F. Supp. 3d 45, 55 (D.D.C. 2019)

[defendant hereinafter “HHS”]. There remains substantial

uncertainty on the degree to which the D.C. Circuit has narrowed

the scope of the consultant corollary. See Am. Oversight v.

United States Dep't of Transp., Civ. Act. No. 18-1272 (CKK),

2022 WL 103306, at *3 (D.D.C. Jan. 11, 2022) (collecting cases).

One line of cases points out that the D.C. Circuit “has

recognized that, under some circumstances, a consultant and an

agency may share common goals such that, even if the consultant

appears to be acting to foster its own interests, its actions

might also be construed as aiding an agency process.” Judicial

Watch, Inc. v. U.S. Dep’t of State, 306 F. Supp. 3d 97, 111

(D.D.C. 2018) (citing Formaldehyde Inst. v. HHS, 889 F.2d 1118,

1124-25 (D.C. Cir. 1989)); see also Am. Oversight v. United

States Dep't of the Treasury, 474 F. Supp. 3d 251, 265 (D.D.C.

38 2020). Contrasting authority within this District, however,

observes that “since Klamath, the [ ] Circuit has consistently

reiterated the principle that the outside consultant must be a

neutral party who is not representing its own interests” and

that “it appears that the law in this Circuit does require that

outside consultants lack an independent interest.” Am. Oversight

v. HHS, 380 F. Supp. 3d at 54 (citation and quotation marks

If a non-agency interlocutor must bring no divergent

interest to bear, then the records at issue would lose their

Exemption 5 protection. The Am. Oversight v. HHS court advocated

for such an approach, while the Am. Oversight v. Dep’t of

Treasury and the Am. Oversight v. Dep’t of Transp. courts

rejected it. In line with the latter two cases, this Court

declines to read Klamath as preventing Exemption 5 protection in

this case. First, the Am. Oversight v. HHS court ultimately

“put[] aside the narrow legal question of whether the mere

existence of some independent interest in the topic on the part

of the outsider is disqualifying” and instead found that “the

record does not support a finding that the communications with

Congress played essentially the same part in an agency’s process

of deliberation as documents prepared by agency personnel.” Id.

(citation and quotation marks omitted). This fact alone renders

the reasoning of American Oversight “unauthoritative dictum—

39 unnecessary to its holding and nonbinding upon this court.” Nat.

Res. Def. Council, Inc. v. Nuclear Regul. Comm’n, 216 F.3d 1180,

1188 (D.C. Cir. 2000).

Second, “when discussing draft legislation, members of the

two political branches may share the exact same goals and desire

to further the exact same piece of legislation.” Am. Oversight

v. Dep’t of Transp., 2022 WL 103306, at *5. To that end, the

record in this case reflects that the “redacted emails involve

members of Congress and congressional staff of the Republican

Party who shared an interest with agencies in the current

Republican administration in working to repeal the ACA and

replace it with the health care reform legislation that was

under consideration.” Slemrod Decl., ECF No. 25-3 ¶ 7. This

common interest “stands in stark contrast to the parochial

interests that troubled the Am. Oversight v. HHS court.” Am.

Oversight v. United States Dep't of Transp., 2022 WL 103306, at

*5.

Further, even if there were parts of the legislation where

the interests of members were not “necessarily aligned,” Pl.’s

MSJ Objs., ECF No. 51 at 18; the consultant corollary would only

be inapplicable if the interests were: (1) necessarily adverse;

and (2) the members were competitors. Klamath, 532 U.S. at 14.

The mere fact that “members of Congress are themselves people,

with personal, professional, and political motivations,” Pl.’s

40 MSJ Objs., ECF No. 51 at 18; is far from convincing since it

would apply to any and every consultant who provides advice to

an agency. While Klamath provides support for consultants not

being “necessarily adverse” to each other, the Court is unaware

of, and Plaintiff does not point to, any case law that requires

the advice of different consultants [here members of Congress]

to be aligned with each other. See generally id. Nor is there a

requirement that consultants must “align with what would be best

for the American people writ large.” Id. at 18. Finally, the

Court is unpersuaded that even if “HHS and OMB’s congressional

interlocutors all had interests in advancing the approach that

best served their constituents,” Pl.’s MSJ Objs., ECF No. 51 at

20; they were acting as “self-advocates at the expense of others

seeking benefits inadequate to satisfy everyone.” Klamath, 532

U.S. at 12. As Defendants point out, “it makes sense that

representatives of a co-equal branch of government, who swore an

oath to ‘defend the Constitution of the United States’ and to

‘well and faithfully discharge the duties of the[ir] office,’

would not have the kind of adverse interests that were at issue

in Klamath. Defs.’ Opp’n MSJ Objs., ECF No. 57 at 16. To reach

the conclusion American Oversight is advocating for is to ignore

that members of Congress may be solicited for advice by agencies

precisely because they will advocate for their constituencies in

the process of working with the Executive Branch on the common

41 goal of passing legislation, and thereby aid the agency’s

process. See Judicial Watch, 306 F. Supp. 3d at 111. It also

bears noting that while certain healthcare policies may better

suit specific constituencies, the adoption thereof is not a

zero-sum game of the sort at play in the water allocation rights

in Klamath. 532 U.S. at 13.

In addition, the Court is unable to see the point or

relevance of American Oversight’s separation-of-powers argument.

American Oversight appears to suggest that because the three

branches of government are meant to serve as a check and balance

on each other, Magistrate Judge Robinson erred in ostensibly

believing that “almost by definition [] [Congress] shares

interests and has a confidential consulting relationship with

the executive branch agencies that would justify applying

Exemption 5’s protections to their discussions.” Pl.’s MSJ

Objs., ECF No. 51 at 19. The Court agrees that Magistrate Judge

Robinson appears to represent both the interest of Congress and

the Executive as “the interests of the government,” MSJ R. & R.,

ECF No. 49 at 16-17; but sees no practical import from this for

a separation of powers concern in the present scenario. As

Defendants point out, “American Oversight has not identified a

single congressional or executive power that would be usurped by

holding that certain deliberative communications between the

branches fall within Exemption 5,” and instead seems to assume

42 that “because there are structural incentives for the branches

to check each other, their interests can never be aligned when

they choose to work within that structure to accomplish shared

goals.” Defs.’ Opp’n MSJ Objs., ECF No. 57 at 18. Moreover, the

Court is not adopting a reading, nor does Magistrate Judge

Robinson conclude, that “the interests of Congress and the

defendant agencies are sufficiently aligned to justify

protecting their communications under the consultant corollary

simply by virtue of the fact that they are both governmental

entities.” Pl.’s MSJ Objs., ECF No. 51 at 24. Magistrate Judge

Robinson’s conclusion, and this Court’s finding that the

threshold requirement has been met, is based on the fact that

“Congress members were not providing advice in their own self-

interest.” MSJ R. & R., ECF No. 49 at 16.

ii. Defendants Solicited The Advice From Congress

The second factor of the consultant corollary requires that

the documents submitted by outside consultants (and sought to be

exempted from disclosure) are actually solicited by the agency

in question. McKinley, 647 F.3d 331 at 338; see NIMJ, 512 F.3d

at 680–81 (finding that Exemption 5 applies to documents

“submitted by non-agency parties in response to an agency’s

request for advice”); Ryan v. Dep’t of Justice, 617 F.2d 781,

790–91 (D.C. Cir. 1980) (holding that Senators’ responses to a

43 questionnaire from the DOJ were “intra-agency” records for

purposes of Exemption 5).

Magistrate Judge Robinson’s findings as to which of the

communications at issue were solicited by Defendants are

somewhat unclear. She finds that both OMB and HHS solicited

information from Congress, see MSJ R. & R., ECF No. 49 at 17;

but then also states that “communications between Defendants and

Congress that do not directly relate to the requests for advice

and the relevant responses thereto are not covered by the

consultant corollary and are subject to disclosure,” id. at 18.

Plaintiff points out that “the Magistrate Judge’s recommendation

provides little guidance regarding which of the challenged

communications she determined ‘directly relate to the requests

for advice,’ and which do not.” Pl.’s MSJ Objs., ECF No. 51 at

22. Plaintiff also argues that Magistrate Judge Robinson: (1)

“appears to improperly credit generic and conclusory assertions

in Defendants’ declarations that lack the specificity required

to determine whether any particular communication is a covered

solicitation”; (2) “ignored the available evidence showing that

for many of the email exchanges at issue in this case, it was

Congress who was seeking advice or input from the agencies, and

not the opposite”; and (3) “erroneously ignored the broader

context of these communications, which establishes that the

communications primarily relate to a legislative deliberation

44 regarding the passage of a bill, and not internal executive

branch deliberations.” Id. CWM responds that “soliciting” input

from an outsider does not require a formal, one-way request;

rather, it can encompass a range of contexts, and Magistrate

Judge Robinson’s discussion of “agency solicitation” therefore

accurately synthesizes the case law in this Circuit. Defs.’

Opp’n MSJ Objs., ECF No. 57 at 20. While the first and third of

American Oversight’s three objections are adequately specific,

the second is reiterated from Plaintiff’s earlier pleadings. See

Pl.’s XMSJ, ECF No. 30 at 20. Thus, the Court considers the

first and third objection de novo, and the second for clear

error.

Here, as Magistrate Judge Robinson notes, the consultations

with Congress, in the case of the OMB, began when “OMB solicited

information from Congressional personnel regarding the status of

the AHCA throughout the drafting and debate process.” Slemrod

Decl., ECF No. 25-3 ¶ 13. HHS’s correspondence with Congress

began when HHS “sought feedback from Congress on legislative and

administrative options for” health care reform, which Congress

was considering at the time. Skrzycki Decl., ECF No. 25-5 ¶ 9.

It is therefore not that case that these statements do not

“establish that HHS and OMB specifically solicited advice,

recommendations, or opinions from their congressional

correspondents under an express understanding that the

45 communications were for the purpose of informing an internal

executive branch decisionmaking process.” Pl.’s MSJ Objs., ECF

No. 51 at 22. Plaintiff argues that these “conclusory

statements” “do not apply with equal force to every record in

Defendants’ productions,” id.; but they are not required to,

because so long as advice has been solicited, back-and-forth

communications are part of a “fluid process.” Judicial Watch,

Inc., 306 F. Supp. 3d at 113. The agency affidavits in this

case, which are accorded a presumption of good faith, are far

from conclusory and detail the role and purpose of the

communications at issue, which both agencies establish they

solicited. See Slemrod Decl., ECF No. 25-3 ¶¶ 8-22; Skrzycki

Decl., ECF No. 25-5 ¶¶ 8-18; Decl. of Sarah C. Arbes (“Arbes

Decl.”), ECF No. 25-6 ¶¶ 7-9. The Court concludes that

Magistrate Judge Robinson did not “improperly credit generic and

conclusory assertions in Defendants’ declarations.” Pl.’s MSJ

Objs., ECF No. 51 at 22.

Plaintiff also maintains that Magistrate Judge Robinson

“ignored the available evidence showing that for many of the

email exchanges at issue in this case, it was Congress who was

seeking advice or input from the agencies, and not the

opposite.” Pl.’s MSJ Objs., ECF No. 51 at 22; see also Decl. of

Sara Creighton (“Creighton Decl..”), ECF No. 30-3; Exhibit 9

(OMB Excerpts), ECF No. 30-3 at 61 (email chain where OMB

46 Director Mick Mulvaney writes to Representative Paul Ryan’s

Policy Director Austin Smythe, “Austin . . . help me. What are

you specifically asking us to do?”); id. at 73 (email from

Representative Steve Scalise staffer Matt Bravo to OMB asking if

“it’s possible to get Mr. Mulvaney to make some calls today?”);

id. at 129 (staffer for Senator John Thune thanking OMB staffer

for his help); Creighton Decl. Ex. 10 (HHS Excerpts), ECF No.

30-3 at 280 (email in which Representative Kevin McCarthy’s

Chief of Staff tells HHS employees that they “have been

incredibly helpful to us in this process”); Ex. B (HHS-Sept

2017-01621–23), ECF No. 27-2 at 51 (email in which congressional

staffer asked HHS for information and thanked them for their

help); Slemrod Decl., ECF No. 25-3 ¶ 17 (referring to technical

assistance “to assist Congress in drafting legislation”).

However, Magistrate Judge Robinson specifically stated that

“[i]t is irrelevant whether Congress received help in return or

even initiated the contact between itself and the agencies; the

relevant question for this factor is whether the agency

established a consultant relationship with Congress by

soliciting their advice.” MSJ R. & R., ECF No. 49 at 18 (citing

McKinley, 647 F.3d 331 at 338; NIMJ, 512 F.3d at 680–81).

Admittedly, while Magistrate Judge Robinson seemed to establish

that some communications are unprotected by the consultant

corollary because they do not relate to requests for advice, she

47 did not establish which communications are not covered.

Plaintiff disagrees that any communications are protected and

argues that Magistrate Judge Robinson “erroneously ignored the

broader context of these communications,” Pl.’s MSJ Objs., ECF

No. 51 at 22. The Court agrees with Plaintiff’s statement but

comes to the opposite conclusion as to coverage. The affidavits

provided by Defendants establish that HHS “engaged in

discussions and sought feedback from Congress on legislative and

administrative options for” health care reform. Skrzycki Decl.,

ECF No. 25-5 ¶ 9. This included daily staff meetings to

determine the agency’s next steps for congressional outreach.

Id. ¶ 10. Further, “HHS had robust internal deliberations and

communicated with Congress about potential proposals and

strategy as Congress worked through draft legislations.” Id. ¶

14. The feedback received through those discussions “contributed

to HHS’ process for evaluating the potential rulemaking and

operational changes that might be necessary if a bill passed.”

Id. ¶ 13. In addition, “HHS engaged with Congress to monitor and

build support for the AHCA.” Id. ¶ 15. The communications

“included policy proposals and strategic discussions that

informed the agency’s process in deciding between administrative

options and adjusting technical assistance provided to

Congress.” Id. ¶ 20. In light of this detailed explanation, it

is clear that “Executive Branch decision-making about health

48 care reform was intertwined with congressional decision-making,”

Defs.’ Opp’n MSJ Objs., ECF No. 57 at 21; and that the

communications at issue were “part and parcel of the agency’s

deliberative process,” Dow Jones, 917 F.2d at 575. See also

Judicial Watch, 950 F. Supp. 2d at 219 n.4 (“The fact that both

agency and non- agency may have mutually ‘solicited’ each

other’s assistance . . . does not obscure the fact that agency

solicitation nevertheless occurred.”). This conclusion in no way

has the effect of “encompassing nearly all intergovernmental

communications as purportedly ‘intra-agency’ communications.”

MSJ R. & R., ECF No. 49 at 23. The legal standard is clear: only

communications that “are part and parcel of the agency’s

deliberative process . . . remain intra-agency documents” for

purposes of Exemption 5. Dow Jones, 917 F.2d at 575. Defendants

have satisfactorily met their burden of showing that here.

b. The Deliberative Process Privilege Prevents Disclosure in This Case, Except for Factual Information

The Exemption 5 deliberative process privilege exempts

certain intra-agency communications from being disclosed in

response to FOIA requests. The purpose of the deliberative

process privilege is to allow agency employees to “communicate

candidly among themselves,” which would be impossible in a

scenario where every agency interaction could be subject to

surveillance. Klamath, 532 U.S. at 9. There are two requirements

49 for the deliberative process privilege to apply: (1) the

document must be predecisional; and (2) the document must be

deliberative. McKinley, 647 F.3d 331 at 339 (quoting NIMJ, 512

F.3d at 680 n.4).

i. The Documents Are Predecisional

Documents are predecisional if they are generated for use

prior to a final agency decision on the matter. See Coastal

States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C.

Cir. 1980) (refusing to characterize documents as

“‘predecisional’ simply because they play into an ongoing audit

process”); 100Reporters LLC v. U.S. Department of Justice, 248

F. Supp. 3d 115, 151 (D.D.C. 2017)(“[A]n agency must show that

the document was ‘generated as part of a definable decision-

making process.’” (quoting Gold Anti- Trust Action Comm., Inc.

v. Bd. Of Governors of the Fed. Reserve Sys., 762 F. Supp. 2d

123, 135– 36 (D.D.C. 2011))). Documents can become subject to

disclosure “even if the document [was] predecisional at the time

it [was] prepared...if it is adopted, formally or informally, as

the agency position on an issue.” Coastal States, 617 F.2d at

866.

Magistrate Judge Robinson finds that the documents in

question are predecisional, because the “Vaughn Indexes drafted

by Defendants, along with the affidavits provided by the staff

members of HHS and OMB, provide sufficient information of a

50 definable decisionmaking process for the Court to ‘pinpoint an

agency decision or policy to which the document[s]

contributed.’” MSJ R. & R., ECF No. 49 at 20 (citing Paisley,

712 F.2d at 698). American Oversight objects that “the available

evidence reveals that many of the records instead relate to

Congress’s decisionmaking process.” Pl.’s MSJ Objs., ECF No. 51

at 25. Defendants respond that this argument “illustrates the

false dichotomy that American Oversight repeatedly has tried to

draw in this case: that an email must relate either to a

congressional decision or to an Executive Branch decision, never

both.” Defs.’ Opp’n MSJ Objs., ECF No. 57 at 24. The Court

agrees with Defendants. The Court has already discussed the

intertwined nature of congressional and Executive Branch

decision making. See supra. As Defendants point out, the Slemrod

declaration specifies four categories of OMB decisions about

health care reform at issue during the relevant period and

identifies the communications that contributed to those

decisions. Slemrod Decl., ECF No. 25-3 ¶¶ 8, 10, 11, 13, 16, 18;

see also, e.g., Suppl. Hitter Decl., Ex. 1 (“OMB Vaughn Index”)

at Doc. No. 13, ECF No. 34-1 (explaining that an “analysis of

draft health care legislative text provision-by-provision”

contributed to a decision as to “which health care proposals to

advocate for”). The Court concludes that Magistrate Judge

51 Robinson properly concluded the communications at issue are pre-

decisional.

ii. The Documents Are Deliberative

Documents are deliberative if they “reflect[] the give-and-

take of the consultative process.” Coastal States, 617 F.2d at

866 (explaining that this covers “recommendations, draft

documents, proposals, suggestions, and other subjective

documents which reflect the personal opinions of the writer

rather than the policy of the agency.”). The agency must

identify the specific deliberative process for which the

documents at issue were created. Coastal States, 617 F.2d at

868; see Paisley, 712 F.2d at 698 (stating that the court must

“be able to pinpoint an agency decision or policy to which [the]

documents contributed”); 100Reporters, 248 F. Supp. 3d at 152

(holding that documents submitted to DOJ for the purpose of

helping deliberate whether plaintiff had satisfied its

obligations under a plea agreement was insufficient

specificity).

Magistrate Judge Robinson finds that the “[s]tatements in

the affidavits suggesting a general deliberation on ‘potential

rulemaking and operational changes’ or the agencies’

‘legislative strategy’ are not specific enough to satisfy the

deliberative privilege standard.” MSJ R. & R., ECF No. 49 at 21.

Plaintiff objects to Magistrate Judge Robinson finding that any

52 of the documents are subject to the deliberative privilege

standard, arguing that the declarations: (1) are not adequately

specific; (2) fail to show the deliberative nature of the

information; and (3) fail to demonstrate that many of the

communications relate to internal agency deliberations at all,

rather than the manifestly congressional decisionmaking

necessary to the passage of legislation by Congress. Pl.’s MSJ

Objs., ECF No. 51 at 28. All three of these objections are

reviewed for clear error, since the first is not adequately

specific, and the latter two are repeated from Plaintiff’s

initial filing. See Pl.’s XMSJ, ECF No. 30 at 36-37. Plaintiff

also argues that “the Magistrate Judge’s recommendation fails to

clearly identify those records, if any, as to which the

Magistrate Judge believes HHS and OMB have described the role of

the redacted communications in agency deliberations with

sufficient detail to qualify for protection under the

deliberative process privilege.” MSJ R. & R., ECF No. 49 at 27.

Defendants respond that Magistrate Judge Robinson’s

conclusion “rests on a characterization of some of the redacted

emails that lacks important context provided in the agencies’

declarations.” Defs.’ Opp’n MSJ Objs., ECF No. 57 at 25.

Defendants reiterate their stance that the D.C. Circuit has

rejected a “black-and-white approach to deliberative

information,” and that the withheld documents are relevant to

53 both Congress’s drafting of legislation, as well as the

Executive Branch’s role in the policymaking process. Id. at 25-

26. Defendants add that “American Oversight overlooks that the

deliberative process privilege ‘serves to protect the

deliberative process itself, not merely documents containing

deliberative material.’” Id. at 26 (citing Mapother v. DOJ, 3

F.3d 1533, 1537 (D.C. Cir. 1993)). The Court agrees with

Defendants. As a threshold matter, the Court notes the validity

of several of Plaintiff’s objections regarding the lack of

specificity at various points in Magistrate Judge Robinson’s R.

& R. See, e.g., MSJ R. & R., ECF No. 49 at 20-21. Plaintiff

points out, for instance, that in the context of her discussion

of deliberative process privilege, Magistrate Judge Robinson

“describes the evidence put forth by the agencies, and then

offers a conditional conclusion” that does “nothing more than

describe the legal standard that an agency must meet.” Pl.’s MSJ

Objs., ECF No. 51 at 27-28. In the discussion below, the Court

specifies which information falls within the privilege and which

does not. As to Magistrate Judge Robinson’s conclusion that some

statements in the affidavits are not clear enough, the Court

finds clear error. Admittedly, some statements suggest

deliberation on “potential rulemaking and operational changes”

or the agencies’ legislative strategy. See Hitter Decl. Ex. 1 at

Doc. No. 1, ECF No. 25-2; Skrzycki Decl. ¶ 13. The Court finds

54 Formaldehyde, 889 F.2d at 1124-25 to be instructive here. In

Formaldehyde, an agency had submitted a draft report to a

medical journal for publication, and the D.C. Circuit held that

the comments of two outside referees on that report were

protected from disclosure by Exemption 5. 889 F.2d at 1120.

Although the comments of the outside referees were for their own

process in determining which articles to publish, the Court

found that “HHS personnel acting in light of the agency's

Congressional mandate must regularly rely on the comments of

expert scientists to help them evaluate the readiness of agency

work for publication.” Id. at 1125.

As Defendants argue, the same is true here. Discussion on

“potential rulemaking and operational changes,” as well as

“legislative strategy,” is “quintessentially deliberative when

an agency like OMB is ‘involved in the iterative process of

drafting legislation’ as part of its process for ‘provid[ing]

the President with analysis and recommendations’ concerning

whether to ultimately sign health care reform legislation.”

Defs.’ Opp’n MSJ Objs., ECF No. 57 at 26 (citing Slemrod Decl.,

ECF No. 25-3 ¶ 10); see also Competitive Enter. Inst. v. Office

of Sci. & Tech. Policy, 161 F. Supp. 3d 120, 128 (D.D.C. 2016)

(draft documents protected by deliberative process privilege).

These discussions, while aiding Congress in drafting

legislation, are also relevant to the Executive Branch’s own

55 decision making, including by informing their choices on “which

health care proposals to advocate for[.]” OMB Vaughn Index at

Doc. No. 13, ECF No. 34-1. A joint deliberative process does not

require that that “the interests of all of those entities were

aligned,” Pl.’s Reply MSJ Objs., ECF No. 59 at 16; nor is it

clear to the Court, contrary to Plaintiff’s assertion, that the

interests of all entities were aligned in Formaldehyde, since

the agency’s draft report still had to go through the journal’s

independent process. 889 F.2d at 1120. What is relevant for the

consultant corollary is the question of self-interest, which has

already been addressed supra. The Court concludes that the

redacted material is simply part of the “agency give-and-take of

the deliberative process.” Vaughn, 523 F.2d at 1144. 4 In

addition, the Court is cognizant that the deliberative process

privilege “serves to protect the deliberative process itself,

not merely documents containing deliberative material.” Mapother

v. DOJ, 3 F.3d 1533, 1537 (D.C. Cir. 1993) (citations omitted).

As in Formaldehyde, where the D.C. Circuit was concerned that

“release of reviewers' editorial comments would very likely have

a chilling effect on either the candor of potential reviewers of

4 In light of this finding, the Court finds as moot Defendants’ objection to the “Report and Recommendation’s suggestion that the agencies’ affidavits and Vaughn indexes fail to sufficiently identify a specific agency deliberative process for some of the redacted communications.” Defs.’ MSJ Objs., ECF No. 52 at 6.

56 government-submitted articles or on the ability of the

government to have its work considered for review at all,” 889

F.2d at 1120; this Court is similarly concerned that disclosing

the materials would reveal details of agency deliberations and

impair the process of decision-making. See Slemrod Decl., ECF

No. 25-3 ¶ 23 (disclosure of withheld materials would “limit[]

the President’s ability to rely on” OMB’s advice).

The Court’s concern, and its finding as to deliberative

process privilege, does not, however, extend to factual

information within the redacted material described below.

Defendants argue that “factual information is protected by the

deliberative process privilege when it ‘is so inextricably

intertwined with the deliberative sections of documents that its

disclosure would inevitably reveal the government’s

deliberations.’” Defs.’ Opp’n MSJ Objs., ECF No. 57 at 21

(citing Abramyan v. DHS, 6 F. Supp. 3d 57, 64 (D.D.C. 2013)

(quoting CREW v. DHS, 514 F. Supp. 2d 36, 46 (D.D.C. 2007))).

While Defendants correctly identify the relevant standard, they

have not established that the facts in question are

“inextricably intertwined with the deliberative sections of

documents,” id.; and as Plaintiff points out, the unredacted

portions of the records suggest the opposite. See, e.g.,

Creighton Decl. Ex. 9 (OMB Excerpts) at OMB-American Oversight-

000678 (email chain regarding announcement that a Republican

57 member of Congress intended to vote against the bill); Arbes

Decl. ¶ 8(b) (“Congress and HHS shared up-to-date information

regarding legislative developments.”); Slemrod Decl. ¶ 10 (OMB

relied on communications “to receive information from Congress

that was used to advise the President about health care

reform”), ¶ 13 (“OMB solicited information from Congressional

personnel regarding the status of the AHCA throughout the

drafting and debate process”), ¶ 17 (“OMB must solicit from

Congress the most current information as to both the legislative

language and the intent behind it.”). While these documents may

have been used during deliberation, they “simply reveal nothing

deliberative in nature regarding the agency’s deliberations.”

Pl.’s Reply MSJ Objs., ECF No. 59 at 16. The Court concludes

that the deliberative process privilege does not apply to such

factual information. See Cause of Action Inst. v. DOJ, No. 17-

1423 (JEB), slip op. at 19 (D.D.C. Sept. 13, 2018) (rejecting

the privilege where the redacted communications “offer no

insight into the agency’s position or anything else that clearly

involves the formulation or exercise of . . . policy-oriented

judgment or the process by which policy is formulated”)

(citations and quotation marks omitted). Accordingly, Defendants

are ordered to release any redacted information that is factual

in nature, and not “inextricably intertwined with the

58 deliberative sections of documents.” CREW, 514 F. Supp. 2d at 46

(citation omitted).

err in her analysis of the consultant corollary except for her

finding that some parts of the redacted documents did not

satisfy the deliberative process privilege. As the Court

clarified, only factual information is not protected by the

privilege. The Court hereby ADOPTS the portion of the R. & R.

addressing Exemption 5, except as to the deliberative process

privilege analysis, see MSJ R. & R., ECF No. 49 at 14-19; and

applicability of the deliberative process privilege, see ECF No.

25; except as to factual information.

3. Defendants Inappropriately Redacted Meeting Locations and Names of Attendees

American Oversight rightly points out that Magistrate Judge

Robinson’s R. & R. did not address its arguments as to certain

redactions included within the calendar entries produced by HHS

and OMB. Pl.’s XMSJ, ECF No. 30 at 28-30. The Court therefore

considers Plaintiffs arguments de novo. Specifically, Plaintiff

argues that “HHS improperly withheld talking points from

briefing materials prepared for HHS officials in advance of

meetings with members of Congress.” Id. at 37. Plaintiff also

contends that “OMB improperly redacted portions of the titles of

meetings on several calendar entries.” Id. at 38. Finally, 59 Plaintiff argues that “OMB improperly redacted meeting locations

and the names of attendees under Exemption 5.” Id. Defendants

respond that “briefing materials prepared in advance of meetings

or calls that HHS Secretary Price had with members of Congress

are subject to the deliberative process privilege.” Defs.’ MSJ

Reply, ECF No. 34 at 33. As to the redacted titles, Defendants

argue that they are subject to the deliberative process

privilege because they reveal details of agency deliberations

and could chill future government employees from engaging in

frank discussion. Id. at 34-35. Defendants add that OMB properly

redacted names of Congress members where “who attends the

meeting is itself a question of legislative strategy” and

“exposes the deliberative process of the President and / or his

advisors”. Id. at 35. The Court considers each of the three

challenges, and responses thereto, in turn. First, contrary to

Plaintiff’s assertion, HHS has plainly met its burden to

establish that the talking points were deliberative. As

Defendants point out, in both the cases American Oversight cites

on this point, the agency did nothing more than label a document

“[draft] talking points.” See Judicial Watch, Inc. v. U.S.

Postal Serv., 297 F. Supp. 2d 252, 265 (D.D.C. 2004); Elec.

Privacy Info. Ctr. [EPIC] v. DOJ, 511 F. Supp. 2d 56, 71 (D.D.C.

2007). Here, by contrast, HHS’s Vaughn Index plainly grounded

the briefing materials in its deliberative process. See Ex. 6

60 (HHS Vaughn Index), Bates No. HHS-July 2017-000002-000003, ECF

No. 25-4 at 39. However, the analysis does not end there. Even

if the records were pre-decisional and deliberative at the time

of their creation, if those materials were adopted as the agency

position or were, in fact, later used and therefore were shared

outside the agency, then the agency waived any privilege with

respect to them. See Judicial Watch, 297 F. Supp. 2d at 265–66.

This Court has specifically noted that the “likelihood of . . .

adoption is particularly high in the case of ‘talking points.’”

EPIC v. DOJ, 511 F. Supp. 2d 56, 71 (D.D.C. 2007). Here, HHS

states that there is “minimal risk that Secretary Price adopted

a public or agency-wide position in the course of a private

phone call with a member of Congress.” Defs.’ MSJ Reply, ECF No.

34 at 34. But as Plaintiff highlights, this statement does not

tell the Court whether the talking points were officially

adopted or not. See Pl.’s XMSJ Reply, ECF No. 37 at 21 n.9.

Second, as to the calendar entries, the Court is guided by

precedent that the deliberative process privilege “serves to

protect the deliberative process itself, not merely documents

containing deliberative material.” Mapother, 3 F.3d at 1537

(citations omitted). The topic of discussion can itself disclose

sensitive issues, and contrary to Plaintiff’s argument, may

include recommendations or express opinions. But see Vaughn, 523

F.2d at 1144. To that end, as Defendants argue, where the titles

61 or body of a calendar entry would themselves disclose details of

agency deliberations, it could certainly “chill[] future

government employees from engaging in frank discussions,” Morley

v. CIA, 699 F. Supp. 2d 244, 256 (D.D.C. 2010) (emphasis

omitted), aff’d in part, vacated in part by 466 Fed. App’x 1

(D.C. Cir. 2012), both by discouraging meetings on sensitive

topics, or from describing those topics in any calendar entries

(and thereby preventing advance preparation). The Court

concludes that Defendants’ affidavits establish the

applicability of Exemption 5. Third, the Court is cognizant that

“even when the contents of meeting minutes are properly withheld

under Exemption 5, the basic information about the meeting,

including “the date and time of the meeting, the names of . . .

members present, and the names of observers” remains nonexempt

and, where reasonably segregable, must be released. Judicial

Watch v. Dep’t of the Treasury, 796 F. Supp. 2d 13, 29 (D.D.C.

2011) (emphasis added); cf. Judicial Watch v. Dep’t of State,

875 F. Supp. 2d 37, 45 (D.D.C. 2012). Defendants make a

compelling argument that revealing locations and names of

attendees “is a different matter if who attends the meeting is

itself a question of legislative strategy.” Defs.’ MSJ Reply,

ECF No. 34 at 35. However, absent any disclosure of the contents

of meetings, Defendants overreach in arguing that “revealing who

was at the meeting reveals opinions within the agency about

62 legislative strategy and thereby exposes the deliberative

process itself.” Id. (internal citation and quotation marks

omitted); see also Mem. Opinion at 1, 10–16, Property of the

People v. OMB, Civ. Act. No. 17-1677 (RC), ECF No. 20, (D.D.C.

Sept. 14, 2018) (finding that OMB could not rely on the

deliberative process privilege to redact the “names of meeting

attendees” and the “locations of meetings” contained in calendar

entries). Similarly, the Court is not persuaded that revealing

when or where “particular high-level figures in the Executive

Branch chose to wade into deliberations over health care reform

exposes the deliberative process of the President and/or his

advisors.” Id. Defendants attempt to distinguish this case on

the basis that “the analysis is different when the attendees

were ‘strategically selected’ in a manner that reveals

suggestions within the Executive Branch as to which stakeholders

were particularly important or persuadable in the health care

reform debate.” Defs.’ NSA Opp’n, ECF No. 61 at 3. But even if

American Oversight knows that “these meetings concerned the

administration’s deliberations regarding health care reform,”

id. at 2; the Defendants have not persuaded the Court that

revealing exactly who the invitees to the meetings were would

“expose an agency’s decisionmaking process in such a way as to

discourage candid discussion within the agency and thereby

undermine the agency’s ability to perform its functions.” Mem.

63 Op., Property of the People v. OMB, No. 17-cv-1677, ECF No. 20

at 10-11 (quoting Dudman Commc’ns Corp. v. Dep’t of Air Force,

815 F.2d 1565, 1568 (D.C. Cir. 1987)).

The Court concludes that Defendants are required to

disclose the names of attendees and locations of meetings, and

GRANTS Plaintiff’s Motion for Summary Judgment regarding the

disclosure of such information, see ECF No. 30 at 37; except as

to calendar entry titles and talking points.

For the talking points at issue, Defendants are directed to

submit an additional affidavit clarifying with certainty whether

or not they were adopted as the agency’s position or were later

used and shared outside the agency, such that any associated

privilege was waived. See Judicial Watch, 297 F. Supp. 2d at

265–66. 5

4. In Camera Review is Not Warranted

Courts have “‘broad discretion’ to decide whether in camera

review is necessary.” 100Reporters LLC, 248 F. Supp. 3d at 166;

see id. at 154 (stating that “the district court . . . has

5 Plaintiff objects to Magistrate Judge Robinson’s suggestion that Plaintiff’s be given further opportunity to justify their redactions. See Pl.’s MSJ Objs., ECF No. 51 at 29. Defendants also object to the need for further affidavits, although for the opposite reason: arguing that their present affidavits are sufficient to establish “with the required specificity, the applicable deliberative process for any of the redacted emails.” See Defs.’ MSJ Objs., ECF No. 52 at 3. Neither of these objections is relevant here, since the talking points were not considered by Magistrate Judge Robinson. 64 several options, including inspecting the documents in camera,

requesting further affidavits, or allowing the plaintiff

discovery” (quoting Spirko v. U.S. Postal Serv., 147 F.3d 992,

997 (D.C. Cir. 1998))). In camera review is available, but not

required, for a district court in its assessment of an agency’s

exemption claims pursuant to a FOIA request. See 5 U.S.C. §

552(a)(4)(B); Larson v. Dep’t of State, 565 F.3d 897, 869–70

(D.C. Cir. 2009). Courts review an agency’s decision to withhold

documents de novo, and the burden is placed on the agency to

demonstrate by affidavit the applicability of the exemption. See

§ 552(a)(4)(B); Hayden v. Nat’l Sec. Agency, 608 F.2d 1381, 1386

(D.C. Cir. 1979). Where: (1) the agency’s affidavits “provide

specific information sufficient to” establish the applicability

of the exemption, (2) the “information is not contradicted in

the record,” and (3) “there is no evidence of agency bad faith,

then summary judgment is appropriate without in camera review of

the documents.” Larson, 565 F.3d at 870 (quoting Hayden, 608

F.2d at 1387). Where the agency’s affidavits have satisfied the

burden of proof, “in camera review is neither necessary nor

appropriate.” Id. at 863, 870 (quoting Hayden, 608 F.2d at 1387)

(holding that the district court did not abuse its discretion by

declining to review in camera documents where the agency’s

affidavit described with “reasonably specific detail the reason

for non-disclosure”). Neither “mere allegation[s] of agency

65 misrepresentation” nor “past agency misconduct in other

unrelated cases” undermine an agency’s affidavits. Hayden, 608

F.2d at 1387. Magistrate Judge Robinson finds that the agencies

have provided “reasonably detailed and uncontradicted evidence

sufficient to establish the applicability of Exemption 5 for

most of the documents” through their Vaughn Indexes and the

accompanying affidavits, and that in camera review is therefore

unnecessary, especially given the lack of evidence as to bad

faith. MSJ R. & R., ECF No. 49 at 24. Magistrate Judge Robinson

also recommends that this Court order Defendants to provide

additional declarations regarding the communications that were

used for congressional (as opposed to agency) purposes, or that

“lack the necessary specificity.” Id. at 24–25. Plaintiff

objects that “it is not clear from the R&R which particular

records the Magistrate Judge believes are in need of

supplemental detail.” Pl.’s MSJ Objs., ECF No. 51 at 51.

Plaintiff also reiterates its argument from its summary judgment

motion, arguing that “DOJ’s willingness to defend the facially

unreasonable redactions in [] [a different] case should at least

give this Court reason to probe further before accepting the

assertions made in this case without additional scrutiny.” Id.

Defendants respond that the Magistrate Judge has already

considered Defendants’ citation to a different case and

appropriately concluded that it has “no effect on this Court’s

66 assessment of the request for in camera review of the redacted

documents.” Defs.’ Opp’n MSJ Objs., ECF No. 57 at 30. Defendants

add that additional affidavits are unnecessary given the detail

of the agencies’ existing submissions. Id. The Court agrees.

Plaintiff attempts to recast the Magistrate Judge’s

finding, stating that “Plaintiff does not claim that the

production in that case means that the agencies here necessarily

acted with similar bad faith.” Pl.’s MSJ Objs., ECF No. 51 at

51. However, by arguing that the Court should consider the

“DOJ’s willingness to defend the facially unreasonable

redactions in that case,” see id.; that is precisely what

American Oversight is doing, in clear contradiction of the

relevant standard, which states that “past agency misconduct in

other unrelated cases” does not undermine an agency’s

affidavits. Hayden, 608 F.2d at 1387. The Court finds no clear

error in Magistrate Judge Robinson’s finding and concludes in

camera review is unnecessary. The Court, however, sees no

reason for further affidavits (except as to the redacted talking

points for meetings) given its holdings supra. The Court

therefore DENIES Plaintiff’ Motion for Summary Judgment

regarding in camera review, see ECF No. 30 at 39.

67 5. Further Discovery is Not Warranted

“Discovery in FOIA is rare and should be denied where an

agency’s declarations are reasonably detailed, submitted in good

faith and the court is satisfied that no factual dispute

remains.” Schrecker v. U.S. Dep’t of Justice, 217 F. Supp. 29,

35 (D.D.C. 2002) (citing Judicial Watch, Inc. v. U.S. Dep’t of

Justice, 185 F. Supp. 54, 65 (D.D.C. 2002)). The party

requesting discovery must submit an affidavit which must meet

the following conditions: “(1) It must outline the particular

facts [Plaintiff] intends to discover and describe why those

facts are necessary to the litigation…; (2) it must explain why

[Plaintiff] could not produce the facts in opposition to the

motion ...; and (3) it must show the information is in fact

discoverable.” United States ex rel. Folliard v. Gov’t

Acquisitions, Inc., 764 F.3d 19, 26 (D.C. Cir. 2014) (quoting

Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99–100 (D.C.

Cir. 2012)). Magistrate Judge Robinson concludes that the

agencies’ declarations were “largely sufficient,” and that

Plaintiff did not describe its need for discovery in sufficient

detail, and it is therefore appropriate to decide this case on

summary judgment without discovery. MSJ R. & R., ECF No. 49 at

26. American Oversight objects that there are ambiguities and

inconsistencies in the record evidence that preclude granting

summary judgment and render discovery necessary. Pl.’s MSJ

68 Objs., ECF No. 51 at 52. The Court finds no clear error in

Magistrate Judge Robinson’s finding, since, as Defendants point

out, American Oversight’s affidavit is devoid of any explanation

as to why the facts it seeks “are necessary” to this litigation.

Defs.’ Opp’n MSJ Objs., ECF No. 57 at 31. American Oversight’s

request for discovery, see Pl.’s XMSJ, ECF No. 30 at 53; is

therefore DENIED.

IV. Conclusion

For the foregoing reasons, Magistrate Judge Robinson’s

R. & R. as to the Motion for Judgment on the Pleadings, see ECF

No. 48; is ADOPTED. In addition, Magistrate Judge Robinson’s

R. & R. as to the Motion for Summary Judgment, see ECF No. 49;

is ADOPTED IN PART and REJECTED IN PART. The portions of the

R. &. R that are rejected are: (1) Magistrate Judge Robinson’s

finding that some statements in the affidavits are not specific

enough to establish deliberative process privilege and

Magistrate Judge Robinson’s related recommendation that the

agency submit further affidavits, see R. & R., ECF No. 49 at 21;

and (2) the portions related to CWM’s Motion for Summary

Judgment, which the Court finds as moot. Plaintiff American

Oversight’s Motion for Judgment on the Pleadings, see ECF No.

45; is DENIED. Defendants HHS and OMB’s Motion for Summary

Judgment, see ECF No. 25; is GRANTED IN PART as to the adequacy

of its search and the validity of Exemption 5 for the records at

69 issue but DENIED IN PART as to the factual information in the

documents, as well as the meeting attendee names and locations

associated with redacted calendar entries. Plaintiff American

Oversight’s Cross-Motion for Summary Judgment, see ECF No. 30;

is GRANTED IN PART as to the factual information and redacted

meeting locations and attendee names, and DENIED IN PART as to

the calendar entries covered by Exemption 5, as well as the

requests for in-camera review and discovery. The Motion is HELD

IN ABEYANCE as to the talking points for which supplemental

briefing has been ordered.

The parties shall submit, by no later than June 27, 2022, a

Joint Status Report regarding the status of the disclosures and

supplemental briefing ordered by this Court.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge May 27, 2022