UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AMERICAN OVERSIGHT, Plaintiff, v. UNITED STATES DEPARTMENT OF Civil Action No. 18-1272 (CKK) TRANSPORTATION, Defendant.
MEMORANDUM OPINION (January 11, 2022)
In this Freedom of Information Act (“FOIA”) case, Plaintiff American Oversight seeks the
unredacted disclosure of communications between Congressional and U.S. Department of
Transportation (“DOT”) staff in which Congressional staff sought agency input on draft
transportation-related legislation. In response to Plaintiff’s FOIA request for these documents,
Defendant DOT produced several documents redacted, in relevant part, pursuant to FOIA’s fifth
exemption to disclosure of agency records. That exemption protects “inter-agency or intra-agency
memorandums and letters which 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). In challenging these redactions, Plaintiff raises
two interrelated questions of law regarding the scope of Exemption 5. First, are communications
between Congressional and agency staff, in which Congressional staff exchange input on draft
legislation that the two staffs are working on together, “inter-agency or intra-agency
memorandums or letters?” Second, and if so, do these communications fall within the
“deliberative process privilege,” i.e., does an agency necessarily “rely” upon those
communications to aid in its own policy- or decision-making process? Upon consideration of the
1 pleadings, 1 the relevant legal authorities, the documents themselves, and the record as a whole, the
Court answers both questions in the affirmative. As such, the Court GRANTS Defendant’s [22]
Motion for Summary Judgment and Plaintiff’s [24] Cross-Motion for Summary Judgment is
DENIED.
I. BACKGROUND
On January 10, 2018, Plaintiff submitted a FOIA request to DOT for “[a]ll records
reflecting communications (including emails, email attachments, text messages, telephone call
logs, calendar invitations/entries, meeting notices, meeting agendas, informational material, draft
legislation, talking points, or other materials)” between anyone in DOT’s Offices of the Secretary,
the Under Secretary of Transportation for Policy, and Governmental Affairs, and “Senator Mitch
McConnell or anyone who works for Mr. McConnell.” Def.’s Ex. A, Declaration of Michael Bell,
Def.’s Mot (“Bell Decl.”), at 2. Plaintiff completed its production of responsive records on May
30, 2019. Id. As part of its production, DOT redacted several records under, in relevant part,
FOIA Exemption 5. The parties agree, and Defendant’s Vaughn index shows, that the contested
documents all reflect emails between staff for Sen. McConnell and DOT staff regarding proposed
or draft legislation. The Vaughn index indicates the identity of the individuals on each redacted
1 The Court’s consideration has focused on the following documents: • Defendant’s Memorandum of Points and Authorities in Support of Defendant’s Motion for Summary Judgment, ECF No. 22-1 (“Def.’s Mot.”); • Plaintiff’s Memorandum of Points and Authorities in Support of Plaintiff’s Cross-Motion to Summary Judgment and in Opposition to Defendant’s Motion for Summary Judgment, ECF 24-1 (“Pl.’s Cross-Mot.”); • Defendant’s Reply in Support of Defendant’s Motion for Summary Judgment and Opposition to Plaintiff’s Cross-Motion for Summary Judgment, ECF No. 26 (“Def.’s Repl.”); • Plaintiff’s Reply in Support of Plaintiff’s Cross-Motion for Summary Judgment, ECF No. 27 (“Pl.’s Repl.”); • Plaintiff’s Supplemental Memorandum, ECF No. 33 (“Pl.’s Supp. Mem.”); and • Defendant’s Supplemental Memorandum, ECF No. 34 (“Def.’s Supp. Mem.”).
2 email, the nature of the withheld content, roughly the status of each proposed legislation, and how
DOT input on that legislation furthered internal policy deliberation. The documents themselves
show as much as well. Plaintiff asserts, and Defendant does not appear to contest in its briefing,
that the documents all relate to Congressional requests for input and advice on draft legislation
from DOT staff. See Def.’s Repl. at 2.
The parties disagree over the significance of Congressional staff requesting information
from an agency. Defendant’s central argument is that Congressional staff played the role of
“consultant” in these communications. In other words, Defendant argues, they fall within the
“consultant corollary” doctrine of Exemption 5 that permits an agency to redact “communications
between an agency and a non-agency that aided the agency’s decision-making process.” See
Judicial Watch v. U.S. Dep’t of Transp., 950 F. Supp. 2d 213, 218-19 (D.D.C. 2013). Plaintiff, on
the other hand, argues that communications between Congressional and agency staff, particularly
where it is Congressional staff who ask for assistance with their own proposed legislation, cannot
be inter- or intra-agency communications. See Pl.’s Mot. at 3. Concerned that Plaintiff might
mean to suggest that inquiries from Congress to agencies are not “agency records” within the
meaning of FOIA at all, the Court directed the parties to submit supplemental briefing on that
subject. The Court further ordered Defendant to provide the Court copies of the communications
at issue for examination in camera. Having reviewed the documents and the parties’ briefing, the
Court now turns to the motions’ resolution.
II. DISCUSSION
A. Summary Judgment Standard
The FOIA authorizes a district court only “to enjoin [a federal] agency from withholding
agency records or to order the production of any agency records improperly withheld from the
3 complainant.” 5 U.S.C. § 552(a)(4)(B). This case, like a “vast majority” of FOIA cases, can be
decided on summary judgment. See Brayton v. Office of U.S. Trade Representative, 641 F.3d 521,
527 (D.C. Cir. 2011).
Summary judgment is appropriate upon a showing that 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).
In a FOIA case, the Court may award summary judgment to an agency solely on the information
provided in affidavits or declarations when they describe “the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary evidence in the record nor by
evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981);
accord Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011); see
also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Such
affidavits or declarations 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. & Exch. Comm’n, 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)). Rather, a plaintiff “must point to
evidence sufficient to put the agency's good faith into doubt.” Ground Saucer, 692 F.2d at 771.
Otherwise, “‘uncontradicted, plausible affidavits showing reasonable specificity and a logical
relation to the exemption are likely to prevail.’” Schoenman v. FBI, 841 F. Supp. 2d 69, 80 (D.D.C.
2012) (quoting Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir.
2011) (alteration omitted)).
On summary judgment, the district court must conduct a “de novo” review of the record,
5 U.S.C. § 552(a)(4)(B), “to ascertain whether the agency has sustained its burden of
4 demonstrating that the documents requested . . . are exempt from disclosure.” Assassination
Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (citation and internal quotation
marks omitted). “Consistent with the purpose of the Act, the burden is on the agency to justify
withholding requested documents.” Beck v. Dep’t of Just., 997 F.2d 1489, 1491 (D.C. Cir. 1993).
Only after an agency has proven that “it has fully discharged its disclosure obligations” is summary
judgment appropriate. Weisberg v. Dep’t of Just., 705 F.2d 1344, 1350 (D.C. Cir. 1983).
B. Exemption 5
Exemption 5 of FOIA protects “inter-agency or intra-agency memorandums or letters
which 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). To fall within Exemption 5, “a document must meet two conditions: ‘its
source must be a Government agency, and it must fall within the ambit of a privilege against
discovery under judicial standards that would govern litigation against the agency that holds it.’”
Stolt-Nielsen Transp. Grp. v. United States, 534 F.3d 728, 733 (D.C. Cir. 2008) (quoting Dep’t of
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001)). In essence, Exemption
5 provides grounds for withholding documents that would fall under a variety of recognized
privileges available to Government agencies in civil litigation including, of relevance to this case,
the deliberative process privilege. Recently, Plaintiff has aggressively litigated Exemption 5
within the congressional context, and the Court is not the first in this jurisdiction to confront the
question. E.g., Am. Oversight v. U.S. Dep’t of Health and Human Servs., 380 F. Supp. 3d 45
(D.D.C. 2019) (ABJ) (“Am. Oversight v. HHS”) (granting summary judgment in favor of plaintiff);
Am. Oversight v. U.S. Dep’t of the Treas., 474 F. Supp. 3d 251 (D.D.C. 2020) (RBW) (“Am.
Oversight v. Treasury”) (granting summary judgment in favor of defendant).
5 1. Agency Solicitation or Indicia of a Consultant Relationship
Plaintiff first argues that DOT’s communications cannot be inter-agency communication
because, in part, “the statute explicitly excludes Congress from its definition of the term ‘agency.’”
Pl.’s Cross-Mot. at 5. Both judges in Am. Oversight v. Treasury and Am. Oversight v. HHS rejected
this very same argument. 474 F. Supp. 3d at 262; 380 F. Supp. 3d at 52. As those courts noted,
such a holding is contrary to the law of our Circuit. See, e.g., Pub. Empls. For Envtl. Responsibility
v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 201 (D.C. 2014)
(Kavanaugh, J.). It also fails for a more fundamental reason. If communications with Congress
are not “agency” records within the meaning of Exemption 5, then they are not records within the
meaning of FOIA. In other words, they are not subject to disclosure at all. See 5 U.S.C. §
552(1)(A); Cause of Action v. Nat’l Archives & Records, 753 F.3d 210, 212 (D.C. Cir. 2014)
(explaining that “FOIA does not cover congressional documents, or documents of legislative
branch agencies” (cleaned up)). In that regard, Plaintiff’s reading would risk creating a
fundamental conflict within FOIA. See Am. Lung Assoc. v. EPA, 985 F.3d 914, 986 (D.C. Cir.
2021) (“The judicial duty is to read statutory text as a harmonized whole, not to foment
irreconcilability.”).
In any event, Plaintiff appears to concede in its Supplemental Briefing that the records here
are agency records. As Plaintiff explains in its supplemental briefing, “agency records are not
limited to records ‘generated internally’ by the agency, reasoning that such a limitation ‘would
frustrate Congress’ desire to put within public reach the information available to an agency in its
decision-making process.” Pl.’s Supp. Br. At 3 (quoting U.S. Dep’t of Just. V. Tax Analysts, 392
U.S. 136, 144-45 (1989)). Contradicting its Cross-Motion for Summary Judgment, Plaintiff
further appears to concede, by quoting liberally from DOT’s supporting affidavits, “that DOT
6 ‘solicited’ the information within the contested communications, ‘relied on’ or ‘used’ it for agency
purposes, and the information contained in the emails ‘informed DOT’s decision-making.’”
Compare id. at 4 with Pl.’s Cross-Mot. at 11-12.
Even had Plaintiff made no such concession, the Court concludes that the communications
here are “inter-agency” records. As the Court of Appeals has explained, “communications
between an agency and Congress” fall squarely within Exemption 5 so long as they are otherwise
privileged. See Rockwell Int’l Corp. v. U.S. Dep’t of Just., 235 F.3d 598, 604 (D.C. Cir. 2001)
(quoting Dow Jones & Co. v. U.S. Dep’t of Just., 914 F.2d 571, 574 (D.C. Cir. 1990)). For these
interbranch communications to be intra- or inter-agency, however, the “records exchanged” must
either have been (1) solicited by the agency or otherwise received where there is “some indicia of
a consultant relationship between” the interbranch staffs, and (2) the records must have been
“created for the purpose of aiding the agency’s deliberative process.” 2 Am. Oversight v. Treasury,
474 F. Supp. 3d at 262 (quoting Judicial Watch, Inc. v. U.S. Dep’t of State, 306 F. Supp. 3d 97,
106-07 (D.D.C. 2018)).
The Supreme Court recognized this second approach to “intra-agency” records as the
“consultant corollary doctrine” in Department of Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 2 (2001) and, in the view of some courts, dramatically narrowed the doctrine.
Although the scope of Klamath is hotly debated to this day, Klamath’s holding was limited: the
corollary doctrine would not exempt records provided to an agency from a non-agency that had
“‘had their own . . . interests in mind’” and acted as “‘self-advocates at the expense of others
seeking benefits inadequate to satisfy everyone.’” Pub. Empls., 740 F.3d at 201. At the same
2 Defendant argues, and Plaintiff appears to concede in its Supplemental Briefing, that DOT solicited at least some communications from Congressional staff. See Supp. Br. at 4. Nevertheless, most of the communications were solicited by Congressional staff for DOT input on pending legislation, so the Court shall focus its analysis on the consultant corollary doctrine.
7 time, the Court, in dicta, called into question two prior D.C. Circuit cases. In the first, Ryan v.
Dep’t of Just., the Court of Appeals held that members of Congress’ input on procedures for
selecting and recommending judicial nominees was covered under Exemption 5 even though they
“unquestionably had their own views and interests.” 617 F.2d 781, 784 (1980). In the second,
Pub. Citizen v. DOJ, the Circuit held that former Presidents’ input on their records at NARA were
covered, even though there was a “potential for an adversary relationship.” 111 F.3d 168, 171
(1977). The Court characterized these two cases as “arguably extend[ing] beyond what we have
characterized as typical examples” of the consultant corollary doctrine. 532 U.S. at 12 n.4. After
that footnote, at least one Circuit has held that the entire consultant corollary doctrine cannot be
reconciled with Klamath. See Lucaj v. FBI, 852 F.3d 541, 547 (6th Cir. 2017). Others continue
to apply the consultant corollary doctrine, if sometimes only in more tailored circumstances. See,
e.g., Jobe v. NTSB, 1 F.4th 396, 404 (5th Cir. 2021) cert. petition docketed No. 21-469 (Sept. 26,
2021); Rojas v. FAA, 989 F.3d 666, 676 (9th Cir. 2021) (en banc). The Court of Appeals for the
District of Columbia Circuit continues to apply the consultant corollary doctrine, but the degree to
which the Court of Appeals has narrowed the doctrine in response to Klamath is uncertain.
In prior cases, the Court of Appeals has acknowledged Klamath and suggested that it has
had some effect on the Court of Appeals’ jurisprudence on the corollary doctrine. See McKinley
v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331, 336 (2011). This Court has previously
observed that Pub. Citizen and Ryan may be in tension with Klamath but nevertheless remain
“good law.” People for the Am. Way Found. v. U.S. Dep’t of Educ., 516 F. Supp. 2d 28, 38 (2007);
accord Am. Oversight v. Treasury, 474 F. Supp. 3d at 267. To that end, Plaintiff’s strongest
argument that the documents at issue are not covered by Exemption 5 is that the Congressional
staff represented their “Senator’s own interests and agenda, and the institutional interests of the
8 legislative branch” as opposed to common interests shared by the respective staffs. Pl.’s Cross-
Mot. at 15. If the Court of Appeals now requires that a non-agency interlocutor bring no divergent
interest to bear, then those facts would strip the instant communications of Exemption 5 protection.
The Am. Oversight v. HHS court squarely accepted that argument, and the Am. Oversight v.
Treasury court squarely rejected it.
In support of its holding, the court in Am. Oversight v. HHS suggested, in essence, that
neither Pub. Citizen nor Ryan are good law. Its analysis centered on Pub Empls.’s characterization
that, “[i]n the wake of Klamath, [the Court of Appeals] ha[s] confined the consultant corollary to
situations where an outside consultant did not have its own interests in mind.” 380 F. Supp. 3d at
54 (quoting 740 F.3d at 201-02). “Thus, it appears that the law in this Circuit does require that
outside consultants ‘lack an independent interest.’” Id. Noting that at least two of the emails at
issue featured subject lines with parochial interests (e.g., “IL Delegation letter” and “Texas 1115
Waiver”), the Court held that the Vaughn index established that the Congressional interlocutors
did not “lack” an independent interest. See id. at 53-54. As such, the Court held in favor of
Plaintiff.
The Am. Oversight v. Treasury court disagreed that this Circuit’s law required a non-
agency interlocutor to have no interest distinct from that of the agency. That court explained that
this jurisdiction has previously “‘recognized that, under some circumstances, a consultant and
agency may share common goals such that, even if the consultant appears to be acting to foster its
own interest, its actions might also be construed as aiding an agency process.’” 474 F. Supp. 3d
at 267 (quoting Judicial Watch, 306 F. Supp. 3d at 111). On the whole, the Court concludes that
the Am. Oversight v. Treasury approach better captures the law of the Circuit as it currently stands
and furthers the public’s interest in judicial economy.
9 At the outset, the Court notes that Pub. Empls.’s statement that the Court of Appeals “ha[s]
confined the consultant corollary to situations where an outside counsel did not have its own
interests in mind” is dictum. See 740 F.3d at 68-69. The Court’s holding on Exemption 5 was
limited to a tailored remand ordering the District Court to do further factfinding on the drafter of
the documents at issue. The Court also respectfully believes that the statement does not accurately
reflect the law then and now. In support of that statement, the Pub. Empls. court cited McKinley.
In that case, the Court of Appeals held that, because the non-agency “did not represent an interest
of its own” in advising the agency, Exemption 5 applied. See 647 F.3d at 339. The McKinley
court did not hold the converse––that the non-agency must never have an interest distinct from
that of the agency when discussing policymaking.
The consequences of forcing the district court, as factfinder, to determine whether the non-
agency ever had “its own interests in mind” when conversing with the agency should not be
understated. First, it would require the district court to determine the subjective mindset of an
interlocutor relying on nothing more than the communications themselves. In this context, it
would require the Court to attempt to find whether any of the Congressional staffers ever
considered an interest other than that of the agency when discussing draft legislation with agency
professionals. If their subjective view were to become dispositive in actions such as these, the
Court could envision subpoenas to Congressional staffers being necessary––even for direct trial
testimony.
More practically, and as the court in Am. Oversight v. Treasury noted, “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.” 474 F. Supp. 3d at 268. In other words,
when discussing draft legislation, members of the two political branches may share the exact same
10 goals and desire to further the exact same piece of legislation. Indeed, that was precisely the case
in Am. Oversight v. Treasury in which the record established that staffers in the Trump
Administration and staffers for Republican Congressional leadership both shared the same goals
for tax reform legislation. See id.
As a result, the Court does not find convincing Plaintiff’s attempt to assign talismanic effect
to the fact that the congressional staffers here did not “underst[and] themselves to be consultants.”
Pl.’s Cross-Mot at 12. The Court agrees with the Am. Oversight v. Treasury court that the relevant
inquiry is, and should be, whether the two staffs were “working together” to achieve a common
legislative purpose. 474 F. Supp. 3d at 266 (citing Judicial Watch, Inc v. U.S. Dep’t of Transp.,
950 F. Supp. 2d 213, 219 (D.D.C. 2013)). The record shows, and Plaintiff concedes, that the two
staffs were “working together.” Staffers for Sen. McConnell were considering several pieces of
draft legislation and sought DOT staff’s assistance in drafting and reviewing that legislation. Bell
Decl. at 6; accord Pl.’s Cross-Mot. at 10; Pl.’s Supp. Br. at 3. Moreover, Defendant avers that it:
understood the staffers in Leader McConnell’s Office to share goals broadly similar to DOT and the administration with respect to infrastructure priorities, and understood that the communications at issue here to be towards a common goal of enacting legislation consistent with the administration’s transportation priorities, rather than an attempt of anyone in Leader McConnell’s Office to gain a benefit from DOT.
Sullivan Decl. at ¶ 10. Defendant further describes the specific pieces of legislation the two staffs
discussed, including “the Fiscal Year 2018 Appropriations Bill,” the “FAA reauthorization bill,”
and the Trump Administration’s “Infrastructure Plan” that incorporated draft legislation. Id. at ¶¶
4, 9. As Plaintiff points to no evidence in the record to contest Defendant’s supporting affidavits,
the Court concludes that the two staffs here were, in fact, working together towards a common
legislative purpose. See Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980) (holding “summary
judgment may be granted on the basis of agency affidavits if they contain reasonable specificity
11 of detail . . . , and if they are not called to question by contradictory evidence in the record or by
evidence of agency bad faith”).
As to whether the records were “created in aid of the agency’s deliberative process,”
Plaintiff again concedes as much. As Plaintiff writes, quoting from DOT’s “[a]ccording to DOT’s
own declarations, DOT ‘solicited’ the information, ‘relied on’ or ‘used’ it for internal agency
purposes, and the information contained in the emails ‘informed’ DOT’s decisionmaking.” Pl.’s
Supp. Br. at 4. Nevertheless, Plaintiff insists that Congressional staffers cannot create records “in
aid of the agency’s deliberative process” because they have “outside interests.” Pl.’s Cross-Mot.
at 15. This argument is another flavor of Plaintiff’s insistence that a non-agency must have no
interest but the agency’s when communicating with the agency to benefit from Exemption 5
coverage. Here, not only does the mutual flow of advice and technical favor a finding that the two
parties were “working together” to achieve a common legislative purpose, see id. at 266, it is also
stands in stark contrast to the parochial interests that troubled the Am. Oversight v. HHS court. In
its review of the documents in camera, the Court saw no communication to or from Congress that
reflected any one member’s parochial interests. Rather, each communication discussed advancing
common priorities for national transportation legislation. Such a relationship is not the sort of
“interested party seeking a Government benefit at the expense of other applicants” that the Klamath
court held vitiated Exemption 5 coverage. See 352 U.S.1, 12 n.4.
That said, the Court agrees with Plaintiff that the consultant corollary doctrine, as applied
to Congressional communications, constructs a kind of legal fiction. It is not the case that
Congressional staff, when coordinating common legislative goals, effectively become
“employees” functioning as “just an employee would be expected to do.” See Rojas, 989 F.3d at
675. Rather, as Plaintiff takes pains to note, Congressional staff are employed for a separate, co-
12 equal branch of government. Characterizing staffers, and even members of Congress, may seem
to stretch the consultant corollary doctrine beyond its bounds, but the application of the consultant
corollary doctrine to Congress furthers FOIA’s interests even more than its application to private
organizations. Even more than private, temporary hires, interbranch staffers “will not
communicate candidly among themselves if each remark is a potential item of discovery and front
page news.” See Klamath, 532 U.S. at 8-9. Put differently, Congressional and agency staff would
not exchange full-throated discussions on common legislative goals if they knew it would be
subject to disclosure simply because a “house.gov” or “senate.gov” was cc’ed on an email. As a
result, although the doctrine may nominally be called a “consultant corollary,” communications
between Congressional staff and agency staff on draft legislation where they are working towards
common legislative priorities are still “agency” documents for the purpose of Exemption 5.
2. Deliberative Process Privilege
The second step of the consultant corollary inquiry is similar to the second part of
Exemption 5: whether the communication at issue was prepared to help the agency form a policy
position and used as such. See Am. Oversight v. Treasury, 474 F. Supp. 3d at 268-69.
The deliberative process privilege is intended to “prevent injury to the quality of agency
decisions.” Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975). More
specifically, the privilege
serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action.
13 Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). To that end, the
privilege protects “documents and other materials that would reveal advisory opinions,
recommendations, and deliberations comprising part of the process by which governmental
decisions and policies are formulated.” In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997).
For the privilege to apply, the government must establish that the material at issue is both
“predecisional” and “deliberative” in nature. U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141
S. Ct. 777, 785–86 (2021). “A document is predecisional if it was prepared in order to assist an
agency decision maker in arriving at his decision, rather than to support a decision already made.”
Petroleum Info. Corp. v. Dep’t of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (citing
Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975)). A document is
deliberative if “it reflects the give-and-take of the consultative process,” Coastal States, 617 F.2d
at 866, and if it was “prepared to help the agency formulate its position.” U.S. Fish & Wildlife
Serv., 141 S. Ct. at 786; see also Pub. Citizen, Inc. v. OMB, 598 F.3d 865, 876 (D.C. Cir. 2010)
(“To qualify under Exemption 5, a document must also be a direct part of the deliberative process
in that it makes recommendations or expresses opinions on legal or policy matters.”) (internal
quotation omitted).
Again, by approvingly quoting from Defendant’s supporting affidavits in its Supplemental
Briefing, Plaintiff effectively concedes the point. See Pl.’s Supp. Br. at 4 (“DOT . . . read or relied
upon the emails in connection with the performance of agency functions” and the communications
“‘informed’ DOT’s decisionmaking” (quoting Sullivan Decl. at ¶¶ 6-9)). In any event, the Court
shall address each requirement.
First, the Court concludes that the documents at issue were predecisional. Defendant states
that the communications with Congressional staff helped DOT “evaluate[] and consider[]
14 transportation initiatives.” Sullivan Decl. at ¶ 4. The information exchanged, Defendant avers,
was used to “develop a strategy for advancing the Administration’s priorities in the Congress,
make recommendations for the Administration’s position on particular legislative proposals, and
develop policy recommendations.” Id. at ¶ 6. As a result, the interbranch communications were
prepared in order to “assist” DOT in determining what legislative details it would support in draft
legislation and, ultimately, whether it would support the legislation itself. These communications
are quite similar to the communications in Am. Oversight v. Treasury that determined and preceded
the legislative details Department of Treasury officials would ultimately support in tax reform
packages. See 474 F. Supp. 3d at 270. Having reviewed the documents themselves in camera,
and seeing no contrary evidentiary material from Plaintiff, the Court concludes that the documents
at issue here are predecisional.
The Court next addresses whether the documents qualify as deliberative. To do so, the
Court must determine:
[1] the roles of the document drafters and recipients in the chain of command, [2] the nature of the withheld content, [3] the stage within the broader deliberative process in which the withheld material operates; and [4] the way in which the withheld material facilitated deliberation.
Judicial Watch, Inc. v. U.S. Dep’t of Just., --- F.4th ---, 2021 WL 585618, at *4 (D.C. Cir. 2021)
(Tatel, J.) (cleaned up). Having review the documents in camera, the Court can conclude that the
drafters and recipients were high level legislative staffers within the Office of the Majority Leader
and agency staffers within the three DOT offices that are the subject of Plaintiff’s FOIA request.
As the parties agree, the content of the discussions between congressional and agency staffs on
pending and proposed legislation. The proposed legislation included the Fiscal Year 2018
Appropriations Bill,” the “FAA reauthorization bill,” and the Trump Administration’s
“Infrastructure Plan” that incorporated draft legislation. Sullivan Decl. at ¶¶ 4, 9. Upon review
15 of the communications themselves, each draft legislation inhabited a different stage of the process.
Some bills were about to proceed to markup, some were still being drafted, and some had yet to
be drafted prior to the two staffs discussing their shared legislative priorities in more detail. See
id. at ¶ 9; Ex. A, Bell Decl. Finally, from the documents themselves and Defendant’s supporting
affidavits, the Court can determine how the communications facilitated deliberation. Across all
these different legislative proposals, the communications “enabled candid and thoughtful
discussions about transportation policy issues” both in general and as applied to the draft bills. See
Sullivan Decl. at ¶ 11. These conversations, like tax-related legislative discussions in Am.
Oversight v. Treasury, “‘reflect[] the give-and-take of the consultative process.’” See 474 F. Supp.
3d at 269 (quoting Coastal States, 617 F.2d at 866).
Plaintiff’s argument to the contrary is unavailing. Plaintiff insists that documents that
“precede and inform legislative, [and] not administrative actions” cannot further agency
deliberation. Pl.’s Cross-Mot. at 26. In support of this argument, Plaintiff cites Elec. Frontier
Found. v. Office of the Dir. Of Nat’l Intelligence, No. 1023, 2009 WL 3061975 (N.D. Cal. Sept.
24, 2009) vacated in relevant part 539 F.3d 876, 891 (9th Cir. 2010). In that case, the district
court held that:
[t]o the extent the withheld materials reflect communications between [the Office of the Director of National Intelligence and DOJ] and members of Congress in an effort to facilitate Congress’ own deliberative process to craft legislation to reform FIA, these communications do not fall under the exemption as there is no evidence that they were used in an effort to aid any agency in its own deliberative process.
Id. at *5. Putting aside whether this case accurately reflects the law of this Circuit or the Ninth
Circuit, there is ample evidence in this case that the communications on draft legislation did aid
DOT in its own deliberative process. As Plaintiff notes, Defendant’s affidavits maintain that DOT
relied on these communications to “‘advise the Secretary and the White House and others in the
16 Executive Branch about how DOT’s programs might be affected by legislation’ and to consider
agency policy options.’” Pl.’s Cross-Mot. at 28 (quoting Sullivan Decl. ¶ 7). As noted above,
both the agency affidavits and the documents themselves identify specific pieces of legislation,
specific agency programs, and specific effects that draft legislation would have on those agency
programs. As Plaintiff can point to no material in the record that contradicts Defendant’s
affidavits, the Court concludes that the communications at issue informed and furthered the
agency’s own policy deliberations.
“Moreover, the disclosure of the information at issue ‘would discourage candid discussion
within the agency’ and therefore undermine the purpose underlying the deliberative process
privilege.’” Id. at 270 (quoting Pub. Empls. for Envtl. Responsibility v. EPA, 213 F. Supp. 3d 1,
11 (D.D.C. 2016)). DOT maintains that “[a]bsent an expectation of confidentiality, DOT would
not have been able to effectively deliberate about those issues internally or engage with Leader
McConnell’s Office to shape legislation to advance DOT’s priorities.” Sullivan Decl. at ¶ 11.
DOT further avers that “public dissemination of these confidential communications between DOT
and Leader McConnell’s Office regarding transportation policy would reveal internal Executive
Branch deliberations about important transportation policy issues related to [particular]
infrastructure funding [bills] and FAA reauthorization.” Id. at ¶ 12. Therefore, and absent any
evidentiary material in the record contravening this account, the Court adopts that conclusion.
It is the prerogative of both political branches to unveil draft legislation at the time they
choose. Congress made that policy choice by enacting the provisions of FOIA that exempt
legislative negotiations between the Office of the President, cf. Kissinger v. Reporters Comm. For
Freedom of the Press, 455 U.S. 136, 156 (1980) (in case involving foreign affairs advice to
President, Office of President exempt from FOIA), and Congress, Cause of Action v. Nat’l
17 Archives & Records Admin., 753 F.3d 210, 212 (D.C. Cir. 2014), from disclosure. Via Exemption
5, the consultant corollary doctrine as applied to Congress is simply a natural extension of FOIA
in that regard.
Plaintiff describes one last dire consequence of this conclusion. “DOT’s approach here,”
Plaintiff says, “would extend the consultant corollary doctrine not only to communications with
Congress, but also with Exxon Mobil, the Sierra Club, and the U.S. Chamber of Commerce.” Pl.’s
Cross-Mot. at 32. Yet this case involves only interbranch communications, and the Court’s holding
is explicitly limited to communications between Congressional staff and agency staff on proposed
and draft legislation. As the Court has taken pains to explain above, interbranch discussions such
as these are somewhat sui generis within the consultant corollary doctrine. That they be somewhat
different from other types of communications protected by the consultant corollary doctrine is no
matter; their redaction complies with and furthers the spirit of Exemption 5.
III. CONCLUSION
In sum, the Court holds that communications between agency and Congressional staff are
exempt from disclosure under FOIA Exemption 5 where (1) the staffers shared a common
legislative purpose and (2) the communications furthered the agency’s consideration of the
particulars of that common legislative purpose. As such, the Court GRANTS Defendant’s Motion
for Summary Judgment and DENIES Plaintiff’s Cross-Motion for Summary Judgment. An
appropriate Order follows this Memorandum Opinion
Dated: January 11, 2022 /s/ ______ COLLEEN KOLLAR-KOTELLY United States District Judge.