Cause of Action Institute v. U.S. Department of Veterans Affairs

• Court: District Court, District of Columbia
• Decided: April 20, 2021
• Docket: Civil Action No. 2020-0997
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CAUSE OF ACTION INSTITUTE,

Plaintiff, Civil Action No. 20-997 (BAH) v. Chief Judge Beryl A. Howell U.S. DEPARTMENT OF VETERANS AFFAIRS,

Defendant.

MEMORANDUM OPINION

Plaintiff Cause of Action Institute (“COA”), a “non-profit strategic oversight group

advocating for economic freedom and individual opportunity advanced by honest, accountable,

and limited government,” Compl. ¶ 6, ECF No. 1, challenges the response of defendant, the U.S.

Department of Veterans Affairs (“VA”), to a request submitted pursuant to the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552, for records related to pilot market assessments

created by a VA contractor in preparation for VA’s implementation of the congressionally

mandated Market Area Health System Optimization (“MAHSO”) analysis, part of a broader

national plan to improve the delivery of health care to veterans, see Compl., Ex. 1, Letter from

John E. McGlothlin, Counsel, COA, to VA FOIA Service (Jan. 16, 2019) (“FOIA Request”),

ECF No. 1-1. Specifically, plaintiff alleges in a single claim that VA unlawfully withheld

records responsive to plaintiff’s FOIA Request. Compl. ¶¶ 24–30; see also Pl.’s Mem. P. & A.

Opp’n Def.’s Mot. Summ. J. & Supp. Pl.’s Cross-Mot. Summ. J. (“Pl.’s Opp’n”) at 1, ECF No.

17-1.

Pending before the Court are the parties’ cross-motions for summary judgment. Def.’s

Mot. Summ. J. (“Def.’s Mot.”), ECF No. 16; Pl.’s Opp’n Def.’s Mot. Summ. J. & Cross-Mot.

1 Summ. J. (“Pl.’s Mot.”), ECF No. 17. For the reasons set forth below, VA’s Motion for

Summary Judgment is granted and plaintiff’s Cross-Motion for Summary Judgment is denied.

I. BACKGROUND

Pertinent background underlying plaintiff’s FOIA Request is briefly described, followed

by review of the FOIA Request and VA’s responses thereto, both before and after initiation of

this lawsuit.

A. Pertinent Background

“VA maintains a complex of medical facilities dedicated to Veteran health care that is

managed by the Veterans Health Administration (VHA),” including “approximately 140 [VA]

Medical Centers and nearly 1700 outpatient centers,” as well as Residential Treatment Facilities

and Community Living Centers. Def.’s Mot., Ex. 2, Decl. of Christine M. Stuppy, MBA

(“Stuppy Decl.”) ¶ 4, ECF No. 16-3. VA’s facilities are organized into eighteen geographic

regions, “known as Veterans Integrated Services Networks (VISNs),” that together “serve 96

geographic markets.” Id. In December 2014, Congress directed that the Secretary of VA

develop and deliver to Congress “a report including . . . a national realignment strategy that

includes a detailed description of realignment plans within each [VISN], including an updated

Long Range Capital Plan to implement realignment requirements” (the “National Realignment

Strategy”). Consolidated and Further Continuing Appropriations Act, 2015 (“2015 Act”), Pub.

L. No. 113-235, § 235, 128 Stat. 2130, 2566 (2014); see also Stuppy Decl. ¶ 5. The report was

also required to provide “an explanation of the process by which” VA developed its National

Realignment Strategy and “a cost vs. benefit analysis of each planned realignment.” 2015 Act

§ 235.

The VA MISSION Act of 2018 (“MISSION Act”), Pub. L. No. 115-182, 132 Stat. 1393

(2018), imposed additional procedural requirements on VA’s development of its realignment 2 strategy, see id. tit. II, subtit. A, § 203, 132 Stat. at 1446. This statute obligates the VA Secretary

to “publish in the Federal Register and transmit to the Committees on Veterans’ Affairs of the

Senate and the House of Representatives” the proposed and final criteria “to be used by [VA] in

assessing and making recommendations regarding the modernization or realignment of [VHA]

facilities.” Id. § 203(a)(1); see also id. § 203(a)(3). The deadline for publication of the final

criteria is May 31, 2021. Id. § 203(a)(3). By January 31, 2022, the Secretary must “publish in

the Federal Register and transmit,” id. § 203(b)(1), to Congress and the Asset and Infrastructure

Review Commission (“AIR Commission”) created by the MISSION Act, see id. § 202, “a report

detailing the recommendations regarding the modernization or realignment of facilities of the

[VHA] on the basis of the final criteria” previously submitted by the agency, id. § 203(b)(1).

The MISSION Act sets out a list of “factors” that the Secretary must consider in making

recommendations, id. § 203(b)(2), and requires the agency to “assess the capacity of each

[VISN] and medical facility . . . to furnish hospital care or medical services,” including through

“a commercial health care market assessment of designated catchment areas . . . conducted by a

non-governmental entity” and “consult[ation] with veterans service organizations and veterans,”

id. § 203(b)(3), which assessments must be submitted with the agency’s recommendations, id.

§ 203(c), but does not otherwise limit VA’s discretion to develop its recommendations.

Upon submission, the agency’s recommendations will be subject to review by the AIR

Commission, see id., which may only change the recommendations if, among other mandatory

findings, it “determines that the Secretary deviated substantially from the final criteria”

published by VA, id. § 203(c)(2)(B)(i). By the end of January 2023, the AIR Commission will

“transmit to the President a report containing [its] findings and conclusions based on a review

and analysis of the recommendations made by the Secretary, together with the Commission’s

3 recommendations.” Id. § 203(c)(2)(A). Within two weeks of receiving the report, by February

15, 2023, the President must “transmit to the Commission and to the Congress a report

containing the President’s approval or disapproval of the Commission’s recommendations,” id.

§ 203(d)(1), and VA then “shall begin to implement” the approved recommendations, id.

§ 204(a).

VA determined that, to formulate its National Realignment Strategy, a study was

necessary of all ninety-six VISN markets, known as the MAHSO analysis. Stuppy Decl. ¶ 5.

The agency entered a contract with PricewaterhouseCoopers (“PWC”), an outside consulting

firm, “to develop a uniform methodology to perform market assessments . . . on healthcare

markets within the VISNs,” with the goal of generating “a consistent method of conducting

market assessments across all 96 [VISN] markets” (the “market assessment methodology”). Id.

¶ 6. This contract (the “Pilot Study Contract”) was assigned VA Contract No. VA101F-17-C-

2843. See id.; Def.’s Mot., Ex. 1, Decl. of Barbara Swailes (“Swailes Decl.”) ¶ 15, ECF No. 16-

2. As part of the contract, PWC was to test the market assessment methodology “in three diverse

markets by conducting pilot market assessments.” Stuppy Decl. ¶ 6. PWC completed the three

pilot market assessments, which utilized an “eight-step draft methodology,” id. ¶ 8, in Spring

2017 and provided to VA “deliverables that memorialized the work,” consisting of the three pilot

market assessments and a briefing document on each assessment, id. ¶ 7; see also Swailes Decl.

¶¶ 13, 15.

B. The FOIA Request

On January 16, 2019, plaintiff submitted the FOIA Request at issue to VA. FOIA

Request at 1; Def.’s Statement of Material Facts Not in Genuine Dispute (“Def.’s SMF”) ¶ 1,

ECF No. 16-4; Pl.’s Statement of Undisputed Material Facts (“Pl.’s SMF”) ¶ 1, ECF No. 17-2.

The Request sought “[a]ll records, including but not limited to email communications and 4 reports, relating to the results of The Pilot Study Contract (VA Contract No. VA101F-17-C-

2843).” FOIA Request at 1. The Request included in its scope “any information produced by

the Department of Veterans Affairs or provided by the contractor conducting the pilot studies,

which were designed to define processes and outputs for an ‘ideal healthcare delivery system,’”

from “December 6, 2016 to the present.” Id. VA received the FOIA Request that same day and

assigned it a tracking number. Swailes Decl. ¶ 5; Def.’s SMF ¶ 1.

C. Processing of the Request and Procedural History

The FOIA Request was initially referred to the VA Office of Procurement Policy

Services’ FOIA Office for processing, Swailes Decl. ¶ 5, and in February 2019, that office

informed plaintiff that it had forwarded the FOIA Request to the VA Construction Facility and

Management (“CFM”) FOIA Office “for file search and direct response” to plaintiff,” id. ¶ 6; see

also id., Ex. B, Email from Patricia Litewski, FOIA Officer, Procurement Policy Services, VA,

to John McGlothlin, Counsel, COA (Feb. 15, 2019, 9:54 AM), ECF No. 16-2; Pl.’s SMF ¶ 6;

Def.’s Resp. Pl.’s Statement of Undisputed Material Facts (“Def.’s Resp. SMF”) ¶ 6, ECF No.

19-1. The CFM FOIA Office soon determined that the Pilot Study Contract had been handled by

VHA rather than CFM, and thus transferred the FOIA Request to the VHA Central Office FOIA

Office (“VHA FOIA Office”) for further processing. Swailes Decl. ¶ 7. Plaintiff was informed

of the transfer in March 2019. Id. ¶¶ 8, 9; see also id., Ex. C, Letter from Michael B. Sarich,

Director, VHA FOIA Off., to John McGlothlin, Counsel, COA (Mar. 8, 2019), ECF No. 16-2;

id., Ex. D, Letter from Michael B. Sarich, Director, VHA FOIA Off., to John McGlothlin,

Counsel, COA (Mar. 15, 2019), ECF No. 16-2.

At the time of the transfer, the VHA FOIA Officer sent record search inquiries to VHA’s

Office of Policy and Planning (“OPP”), Office of Healthcare Transformation (“OHT”), and

Office of Capital Asset Management, Engineering, and Support (“OCAMES”). Swailes Decl. 5 ¶ 10. OHT “responded by indicating that” the Pilot Study Contract “was not an OHT contract,”

and OCAMES “request[ed] that the record search be directed to OPP due to OPP’s involvement

with the market assessment project.” Id. As of June 2019, the FOIA Officer had not received

any response from OPP. Id. Nearly a year later, on April 14, 2020, having received no

communications from VA since March 2019, plaintiff requested a status update on the

processing of the FOIA Request. Id. ¶ 11. The VHA FOIA Officer responded to plaintiff on the

same day and “provided the end of the calendar year 2020 as an estimated date of completion.”

Id. Two days later, on April 16, 2020, plaintiff initiated this litigation. See Compl.; Pl.’s SMF

¶ 8; Def.’s Resp. SMF ¶ 8.

Two weeks after the filing of the instant Complaint, OPP informed the FOIA Officer that

it had produced some potentially responsive documents in response to a previous FOIA request

for the pilot market assessments. Swailes Decl. ¶ 10. The FOIA Officer tracked down “the

responsive documents” identified pursuant to that request, consisting of “seven documents,

totaling four hundred and eighty-nine . . . pages, [B]ates numbered 1-489.” Id. The seven

documents included the three pilot market assessments, with one of the three studies split into

two files, and three related briefing documents, all prepared by PWC in consultation with VA

employees pursuant to the Pilot Study Contract. See id.; id., Ex. F, Vaughn Index FOIA Request

19-05023-F (“Vaughn Index”) at 1–24, ECF No. 16-2.

On May 11, 2020, the VHA FOIA Officer issued VA’s first Initial Agency Decision (the

“First IAD”), addressing these seven documents, to plaintiff. Id. ¶ 13; id., Ex. E, Letter from

Barbara Swailes, VHA FOIA Officer, VHA FOIA Off., to John E. McGlothlin, Counsel, COA

(May 11, 2020) (“First IAD”) at 2, ECF No. 16-2; Def.’s SMF ¶ 3(a); Pl.’s Resp. SMF ¶ 3; Pl.’s

SMF ¶¶ 10–11; Def.’s Resp. SMF ¶¶ 10–11. All 489 pages were withheld in full pursuant to the

6 deliberative process privilege of FOIA Exemption 5, with certain overlapping withholdings

under FOIA Exemption 6. First IAD at 2–7; see also Swailes Decl. ¶ 13; Def.’s SMF ¶ 3(a);

Pl.’s Resp. SMF ¶ 3; Pl.’s SMF ¶¶ 11–12; Def.’s Resp. SMF ¶¶ 11–12. As reflected in the

parties’ first Joint Status Report to the Court, VA agreed to produce a Vaughn Index

corresponding to the First IAD to plaintiff, see Joint Status Report (June 3, 2020) at 1, ECF No.

10, and did so in June 2020, Swailes Decl. ¶ 24.1

Between June 2020 and September 2020, the VHA FOIA Officer searched for additional

materials responsive to the FOIA Request. Swailes Decl. ¶ 25; see also Joint Status Report

(Aug. 3, 2020) at 1–2, ECF No. 11. The FOIA Officer issued two further IADs during this

period, in August and September. Swailes Decl. ¶ 25; Pl.’s SMF ¶¶ 15–16; Def.’s Resp. SMF

¶¶ 15–16; Joint Status Report (Sept. 4, 2020) (“Sept. 4 JSR”) at 1, ECF No. 12. After realizing

that these two IADs addressed duplicate documents, Swailes Decl. ¶ 25, the parties “agreed to

narrow the scope of summary judgment to those responsive records identified in” the First IAD,

Pl.’s SMF ¶ 17; see also Def.’s Resp. SMF ¶ 17. Their next status report advised the Court that

“[p]laintiff d[id] not contest the adequacy of the search but intend[ed] to challenge [VA]’s

withholding of certain pilot studies and related records under Exemptions 5 and 6,” and that the

parties therefore “believe[d] that briefing on summary judgment [was] necessary.” Joint Status

Report (Sept. 25, 2020) (“Sept. 25 JSR”) at 1, ECF No. 13. A schedule for dispositive motions

was accordingly set. See Min. Order (Sept. 28, 2020); Min. Order (Dec. 8, 2020).

On December 14, 2020, less than a month before its Motion for Summary Judgment was

due, see Min. Order (Dec. 8, 2020), VA “issued a notification letter” to plaintiff “as a follow-up”

to the First IAD. Swailes Decl. ¶ 26; see also Pl.’s SMF ¶ 18; Def.’s SMF ¶ 18. This letter

1 “A Vaughn index describes the documents withheld or redacted [by the agency] and the FOIA exemptions invoked, and explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C. Cir. 2015).

7 advised that the agency “had determined that the eight-step methodology” used in the three pilot

market assessments “could be released.” Swailes Decl. ¶ 26. The VHA FOIA Officer

accordingly “re-reviewed” the 489 pages that had been withheld in the First IAD “and released

the five pages containing the methodology in full,” as well as “additional pages that repeated

methodology information.” Id. She further “determined that [the agency] could release several

pages that had essentially no substantive content and release of which would not harm the

agency.” Id. As a result of this second review of the First IAD, “[a] total of thirty-eight . . .

pages” previously withheld “were released in full or in part,” id., but VA continued to withhold

in full the remaining 451 pages. The agency also produced to plaintiff a revised Vaughn Index.

Id.; see also Vaughn Index. The parties’ briefing continued on the basis of the revised First IAD,

and the pending cross-motions for summary judgment became ripe for resolution on March 26,

2021. See Pl.’s Reply Br. Supp. Pl.’s Cross-Mot. Summ. J. (“Pl.’s Reply”), ECF No. 21.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, “‘[a] party is entitled to summary judgment

only if there is no genuine issue of material fact and judgment in the movant’s favor is proper as

a matter of law.’” Soundboard Ass’n v. FTC, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (quoting

Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006));

see also Fed. R. Civ. P. 56(a). “‘In FOIA cases, summary judgment may be granted on the basis

of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory

statements, and if they are not called into question by contradictory evidence in the record or by

evidence of agency bad faith.’” Aguiar v. DEA, 865 F.3d 730, 734–35 (D.C. Cir. 2017) (quoting

Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013)); see also Students

Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (“[A]n agency is entitled

8 to summary judgment if no material facts are in dispute and if it demonstrates ‘that each

document that falls within the class requested either has been produced . . . or is wholly exempt

from the Act’s inspection requirements.’” (omission in original) (quoting Goland v. CIA, 607

F.2d 339, 352 (D.C. Cir. 1978))). Most FOIA cases “can be resolved on summary judgment.”

Brayton v. Off. of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

FOIA was enacted “to promote the ‘broad disclosure of Government records’ by

generally requiring federal agencies to make their records available to the public on request.”

DiBacco v. U.S. Army (“DiBacco I”), 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting Dep’t of

Justice v. Julian, 486 U.S. 1, 8 (1988)). Agencies are therefore statutorily mandated to

“make . . records promptly available to any person” who submits a request that “reasonably

describe such records” and “is made in accordance with [the agency’s] published rules.” 5

U.S.C. § 552(a)(3)(A). To balance the public’s interest in governmental transparency and

“‘legitimate governmental and private interests [that] could be harmed by release of certain types

of information,’” Judicial Watch, Inc. v. U.S. Dep’t of Def., 913 F.3d 1106, 1108 (D.C. Cir.

2019) (quoting FBI v. Abramson, 456 U.S. 615, 621 (1982)), FOIA contains nine exemptions, set

forth in 5 U.S.C. § 552(b), which “are ‘explicitly made exclusive’ and must be ‘narrowly

construed,’” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (first quoting EPA v. Mink, 410

U.S. 73, 79 (1979); and then quoting Abramson, 456 U.S. at 630); see also Murphy v. Exec. Off.

for U.S. Att’ys, 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Resp. & Ethics in Wash. v. U.S.

Dep’t of Justice (“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014). “[T]hese limited exemptions

do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the

Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).

9 FOIA authorizes federal courts “to enjoin the agency from withholding agency records

and to order the production of any agency records improperly withheld from the complainant.” 5

U.S.C. § 552(a)(4)(B). When an agency invokes an exemption to disclosure, district courts must

“determine de novo whether non-disclosure was permissible.” Elec. Priv. Info. Ctr. v. U.S. Dep’t

of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015). The statute “places the burden ‘on the

agency to sustain its action,’ and the agency therefore bears the burden of proving that it has not

‘improperly’ withheld the requested records.” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t

of Justice, 922 F.3d 480, 487 (D.C. Cir. 2019) (first quoting 5 U.S.C. § 552(a)(4)(B); and then

quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)); see also U.S. Dep’t

of Justice v. Landano, 508 U.S. 165, 171 (1993) (“The Government bears the burden of

establishing that the exemption applies.”); DiBacco v. U.S. Dep’t of Army (“DiBacco II”), 926

F.3d 827, 834 (D.C. Cir. 2019) (“‘An agency withholding responsive documents from a FOIA

release bears the burden of proving the applicability of clamed exemptions,’ typically through

affidavit or declaration.” (quoting DiBacco I, 795 F.3d at 195)). This burden does not shift even

when the requester files a cross-motion for summary judgment because the agency ultimately

“bears the burden to establish the applicability of a claimed exemption to any records or portions

of records it seeks to withhold,” Am. Immigr. Laws. Ass’n v. Exec. Off. for Immigr. Rev., 830

F.3d 667, 673 (D.C. Cir. 2016), while “[t]he burden upon the requester is merely ‘to establish the

absence of material factual issues before a summary disposition of the case could permissibly

occur,’” Pub. Citizen Health Rsch. Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999) (quoting

Nat’l Ass’n of Gov’t Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).

10 III. DISCUSSION

Plaintiff contests VA’s invocation of Exemptions 5 and 6 to justify withholding of all but

thirty-eight pages of the seven documents identified in the First IAD and its redactions from

twenty-two of the thirty-eight produced pages. See Pl.’s Opp’n at 6–18; Pl.’s Reply at 5–13.

Additionally, plaintiff disputes VA’s foreseeable harm and segregability analyses with respect to

its withholdings. See Pl.’s Opp’n at 18–23; Pl.’s Reply at 13–17.2 These topics are addressed

seriatim.3

A. Application of FOIA Exemptions

FOIA “requires government agencies to make information available upon request, unless

the information is protected by one of” FOIA’s nine exemptions. Judicial Watch, Inc. v. U.S.

Dep’t of Def., 847 F.3d 735, 738 (D.C. Cir. 2017). An agency must prove the applicability of

claimed exceptions, and can do so through a Vaughn index, and supporting affidavits or

declarations, that “describe[] the justifications for withholding the information with specific

2 VA discusses at length the adequacy of its search for records responsive to the FOIA Request, see Def.’s Mem. P. & A. Supp. Def.’s Mot. Summ. J. (“Def.’s Mem.”) at 5–8, ECF No. 16-1; Def.’s Reply Mem. Supp. Def.’s Mot. Summ. J. & Resp. Opp’n Pl.’s Mot. Summ. J. (“Def.’s Reply”) at 1–2, ECF No. 19, even though, as explained supra Part I.C, the parties agreed to restrict the scope of summary judgment to the propriety of VA’s withholdings under Exemptions 5 and 6, see Sept. 25 JSR at 1, and plaintiff maintains, consistent with the parties’ previous representation to the Court, that “the sufficiency of [VA]’s search” for responsive records “is not in dispute,” Pl.’s Opp’n at 7 n.3; see also Pl.’s Reply at 1–2. Indeed, plaintiff’s Complaint nowhere alleges that VA’s search was inadequate. See Compl. Accordingly, the adequacy of VA’s search is not contested and will not be addressed any further. See, e.g., Niskanen Ctr. v. FERC, 436 F. Supp. 3d 206, 212–13 (D.D.C. 2020); Tipograph v. Dep’t of Justice, 83 F. Supp. 3d 234, 238 (D.D.C. 2015); Showing Animals Respect & Kindness v. U.S. Dep’t of Interior, 730 F. Supp. 2d 180, 190 (D.D.C. 2010). 3 Plaintiff requests that the Court “order [VA] to submit unredacted versions of the records at issue” for in camera review, Pl.’s Opp’n at 25, arguing that such review is warranted “[b]ased on . . . [VA’s] improper use of Exemptions 5 and 6, as well as [the agency’s] questionable efforts to segregate non-exempt portions of records for release,” id. at 24; see also id. at 23–25; Pl.’s Reply at 17. FOIA provides that a district court “may examine the contents of . . . agency records in camera” at its discretion, 5 U.S.C. § 552(a)(4)(B), “but ‘it by no means compels the exercise of that option,’” Larson v. Dep’t of State, 565 F.3d 857, 869 (D.C. Cir. 2009) (quoting Juarez v. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008)). “‘If the agency's affidavits provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents.’” Mobley v. CIA, 806 F.3d 568, 588 (D.C. Cir. 2015) (quoting ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 626 (D.C. Cir. 2011)). As explained below, the first two of these requirements are satisfied in the instant case, and plaintiff raises no allegations of agency bad faith. In camera review therefore will not be ordered.

11 detail, demonstrate[] that the information withheld logically falls within the claimed exemption,

and [are] not contradicted by contrary evidence in the record or by evidence of the agency’s bad

faith.” DiBacco II, 926 F.3d at 834 (internal quotation marks and citation omitted); see also,

e.g., CREW, 746 F.3d at 1088; Poitras v. Dep’t of Homeland Sec., 303 F. Supp. 3d 136, 150

(D.D.C. 2018) (“An agency may carry its burden of showing an exemption was properly invoked

by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld

documents, or both, to demonstrate that the government has analyzed carefully any material

withheld and provided sufficient information as to the applicability of an exemption to enable the

adversary system to operate.”). “‘Ultimately, an agency’s justification for invoking a FOIA

exemption is sufficient if it appears logical or plausible.’” Judicial Watch, Inc. v. U.S. Dep’t of

Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (per curiam) (quoting ACLU, 628 F.3d at 619).

Plaintiff disputes VA’s assertion of Exemption 5’s deliberative process privilege as to the

agency’s withholding of 451 full pages of the pilot market assessments and related briefing

documents discussed in the First IAD and redactions from an additional twenty-two pages of

these seven documents. See Vaughn Index at 1–24; Pl.’s Opp’n at 8–11; Pl.’s Reply at 5–8. It

further contests VA’s overlapping claim that Exemption 6 shields from disclosure thirty-five

pieces of potentially personally identifying information, for which the agency also cites

Exemption 5. See Vaughn Index at 1, 4–5, 7–9, 11–13, 14–16, 17–18, 21–23; Pl.’s Opp’n at 11–

18; Pl.’s Reply at 8–13. To justify its withholdings from the seven documents, VA need only

show that one exemption applies to each withholding. See Judicial Watch, Inc., 715 F.3d at 940;

Ctr. for Nat’l Sec. Stud. v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (noting that

a court “need not address [any] other exemptions invoked” for a withholding justified by one

exemption); Cause of Action Inst. v. Exp.-Imp. Bank of U.S., Civ. A. No. 19-1915 (JEB), 2021

12 WL 706612, at *3 (D.D.C. Feb. 23, 2021). As explained below, VA has properly relied on

Exemption 5 to withhold or redact information from the three pilot market assessments and the

three related briefing documents, and the applicability of Exemption 6 therefore need not be

considered.

1. Legal Standards Governing Application of Exemption 5

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). “‘Among th[e] privileges protected by Exemption 5 is the . . .

deliberative process privilege.’” Judicial Watch, Inc., 847 F.3d at 739 (alteration and omission

in original) (quoting Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257 (D.C. Cir. 1982)); see

also Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015). “To protect

agencies from being ‘forced to operate in a fishbowl,’ the deliberative process privilege shields

from disclosure ‘documents reflecting advisory opinions, recommendations and deliberations

comprising part of a process by which governmental decisions and policies are formulated.’”

U.S. Fish & Wildlife Serv. v. Sierra Club, Inc. (“Sierra Club”), 141 S. Ct. 777, 785 (2021) (first

quoting Mink, 410 U.S. at 87; and then quoting NLRB v. Sears, Roebuck & Co. (“Sears”), 421

U.S. 132, 150 (1975)). It “is rooted in ‘the obvious realization that officials will not

communicate candidly among themselves if each remark is a potential item of discovery and

front page news.’” Id. (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532

U.S. 1, 8–9 (2001)); see also Judicial Watch, Inc., 847 F.3d at 739 (noting that the deliberative

process privilege is predicated on the theory that “agencies craft better rules when their

employees can spell out in writing the pitfalls as well as the strengths of policy options, coupled

with the understanding that employees would be chilled from such rigorous deliberation if they

feared it might become public”). The privilege is intended “[t]o encourage candor, which 13 improves agency decisionmaking,” by “blunt[ing] the chilling effect that accompanies the

prospect of disclosure.” Sierra Club, 141 S. Ct. at 785; see also Machado Amadis v. U.S. Dep’t

of State, 971 F.3d 364, 371 (D.C. Cir. 2020) (finding the deliberative process privilege intended

to “protect[] ‘debate and candid consideration of alternatives within an agency,’ thus improving

agency decisionmaking”) (quoting Jordan v. Dep’t of Justice, 591 F.2d 753, 772 (D.C. Cir.

1978) (en banc))).

“To qualify for the deliberative process privilege, an intra-agency memorandum must be

both pre-decisional and deliberative.” Abtew, 808 F.3d at 898 (citing Coastal States Gas Corp.

v. Dep’t of Energy (“Coastal States”), 617 F.2d 854, 866 (D.C. Cir. 1980)); see also Hall &

Assocs. v. EPA, 956 F.3d 621, 624 (D.C. Cir. 2020).4 The Supreme Court recently clarified the

contours of these requirements in U.S. Fish and Wildlife Service v. Sierra Club, Inc. (“Sierra

Club”), 141 S. Ct. 777 (2021), finding that “[t]he privilege . . . distinguishes between

predecisional, deliberative documents, which are exempt from disclosure, and documents

reflecting a final agency decision and the reasons supporting it, which are not,” id. at 785–86.

“Documents are ‘predecisional’ if they were generated before the agency’s final decision on the

4 At the outset, an agency can claim the deliberative process privilege only with respect to “inter-agency or intra-agency memorandums or letters.” 5 U.S.C. § 552(b)(5). The D.C. Circuit “has . . . interpreted the phrase ‘intra-agency’ in Exemption 5 to go beyond the text and include U.S. agency records authored by non-agency entities if those records were solicited by a U.S. agency in the course of its deliberative process” and were created by “an outside consultant” who “did not have its own interests in mind.” Pub. Emps. for Env’tl Resp. v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 201–02 (D.C. Cir. 2014) (citing McKinley v. Bd. of Governors of the Fed. Reserve Sys., 647 F.3d 331, 336–37 (D.C. Cir. 2011)); see also Nat’l Inst. of Mil. Justice v. U.S. Dep’t of Def., 512 F.3d 677, 679–80 (D.C. Cir. 2008); Buzzfeed, Inc. v. FBI, Civ. A. No. 18-cv-2567 (BAH), 2020 WL 2219246, at *6 (D.D.C. May 7, 2020). This interpretation, known as the “consultant corollary” to Exemption 5, brings agency “communications to or from non-governmental parties, including contractors,” within the scope of the exemption as intra-agency documents, so long as “‘the consultant does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it.’” Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 185 (D.D.C. 2017) (quoting Elec. Priv. Info. Ctr. v. Dep’t of Homeland Sec., 892 F. Supp. 2d 28, 45 (D.D.C. 2012)). Though plaintiff “objects to the foundational confusion and lack of textual support undergirding the D.C. Circuit’s prevailing precedent, and the obvious inconsistency of the consultant corollary with the plain meaning of Exemption 5’s unambiguous language,” it does not contest that, under this Circuit’s binding precedent upholding and applying the consultant corollary, VA “has technically satisfied Exemption 5’s threshold requirement” that a record be an inter-agency or intra-agency communication. Pl.’s Opp’n at 8 n.3. The parties therefore do not dispute that the contested records qualify as “intra-agency” documents. See Def.’s Mem. at 9; Pl.’s Opp’n at 8 n.3.

14 matter, and they are ‘deliberative’ if they were prepared to help the agency formulate its

position.” Id. at 786 (citing Sears, 421 U.S. at 150–52; Renegot. Bd. v. Grumman Aircraft Eng’g

Corp., 421 U.S. 168, 184–86, 190 (1975)); see also Judicial Watch, Inc., 847 F.3d at 739

(“Documents are ‘predecisional’ if they are ‘generated before the adoption of an agency policy,’

and ‘deliberative’ if they ‘reflect[] the give-and-take of the consultative process.’” (alteration in

original) (quoting Pub. Citizen, Inc. v. Off. of Mgmt. & Budget, 598 F.3d 865, 874 (D.C. Cir.

2010))). “There is considerable overlap between these two prongs because a document cannot

be deliberative unless it is predecisional.” Sierra Club, 141 S. Ct. at 786.

Sierra Club explains that “a court must evaluate the documents ‘in the context of the

administrative process which generated them’” to decide whether a document represents an

agency’s final decision. Id. (quoting Sears, 421 U.S. at 138). “[D]etermining whether an

agency’s position is final for purposes of the deliberative process privilege is a functional rather

than formal inquiry,” id. at 788, that focuses on “whether [the record] communicates a policy on

which the agency has settled,” id. at 786. To answer this question, “courts must consider

whether the agency treats the document as its final view on the matter.” Id. (citing Sears, 421

U.S. at 161). “[O]nce cited as the agency’s final view, the document reflects ‘the consummation

of the agency’s decisionmaking process’ and not a ‘merely tentative position,’” and therefore

loses the protection of Exemption 5. Id. (quoting Bennett v. Spear, 520 U.S. 154, 177–78

(1997)). On the other hand, “a document that leaves agency decisionmakers ‘free to change their

minds’ does not reflect the agency’s final decision” and is exempt from disclosure. Id. (quoting

Grumman Aircraft Eng’g Corp., 421 U.S. at 189–90 & n.26). A record’s “real operative effect”

is probative of its finality, but is assessed by reference “to the legal, not practical, consequences

that flow from an agency action.” Id. at 787 (citing Sears, 421 U.S. at 159 n.25, 160). Thus, a

15 document that reflects an agency view “that [is] subject to change,” id. at 786, may be exempt as

predecisional and deliberative even if it in fact “has the effect of changing an agency’s course,”

id. at 788.

To show that the deliberative process privilege is properly invoked, the government must

explain, for each withheld record, at a minimum “(1) ‘what deliberative process is involved,’ (2)

‘the role played by the documents in issue in the course of that process,’ and (3) ‘the nature of

the decisionmaking authority vested in the office or person issuing the disputed document[s], and

the positions in the chain of command of the parties to the documents.’” Ctr. for Biological

Diversity v. EPA, 279 F. Supp. 3d 121, 147 (D.D.C. 2017) (alteration in original) (first quoting

Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585–86 (D.C. Cir. 1987); and then quoting

Elec. Frontier Found. v. U.S. Dep’t of Justice, 826 F. Supp. 2d 157, 168 (D.D.C. 2011)); see also

Ecological Rights Found. v. EPA, Civ. A. No. 19-980 (BAH), 2021 WL 535725, at *12 (D.D.C.

Feb. 13, 2021). “The government, not the requester, must identify the deliberative process to

which any record relates.” Ctr. for Investigative Reporting v. U.S. Customs & Border Prot., 436

F. Supp. 3d 90, 101 (D.D.C. 2019) (citing 100Reporters LLC v. U.S. Dep’t of Justice, 248 F.

Supp. 3d 115, 152 (D.D.C. 2017)); see also Senate of P.R., 823 F.2d at 585 (“[T]o approve

exemption of a document as predecisional, a court must be able ‘to pinpoint an agency decision

or policy to which the document contributed.’” (quoting Paisley v. CIA, 712 F.2d 686, 698 (D.C.

Cir. 1981))).

Plaintiff argues that the three pilot market assessments and related briefing documents

discussed in the First IAD “are neither predecisional nor deliberative,” Pl.’s Opp’n at 11; see

also Pl.’s Reply at 8, and therefore contests VA’s reliance on Exemption 5’s deliberative process

privilege to justify its withholding of 451 pages of these records, see Vaughn Index at 1–24, and

16 its redactions from twenty-two of the thirty-eight pages that were produced, see Vaughn Index at

1, 7, 11, 14, 18, 21. For the reasons explained below, the challenged withholdings and

redactions involve predecisional and deliberative records and VA therefore properly asserted

Exemption 5 to withhold or redact the information at issue.

2. Description of Information Withheld Pursuant to Exemption 5

VA describes the seven disputed records as “three market assessment pilots,” one of

which “was broken into two documents, and three briefing documents,” Swailes Decl. ¶ 13,

totaling 489 pages, that “were created in part by [PWC] acting as an outside consultant on behalf

of VA as deliverables to [the Pilot Study Contract],” in consultation with VHA employees, id.

¶ 15; see also Stuppy Decl. ¶ 7; Vaughn Index at 1, 4–5, 8, 11–12, 15, 18, 21. The three pilot

studies underlying these documents were intended “to develop a uniform methodology to

perform market assessments” in all ninety-six VISN markets and to “test[]” that methodology “in

three diverse markets.” Stuppy Decl. ¶ 6. For each study, the consultant, with input from agency

employees, produced a pilot market assessment, see Vaughn Index at 7 (referring to Part 1 of the

second pilot market assessment by Bates Nos. 68–127), 11 (referring to Part 2 of the second pilot

market assessment by Bates Nos. 128–81), 14 (referring to the first pilot market assessment by

Bates Nos. 182–328), 21 (referring to the third pilot market assessment by Bates Nos. 357–489),

and a shorter briefing document, see id. at 1 (referring to the briefing document for the first pilot

market assessment by Bates Nos. 1–42), 4 (referring to the briefing document for the second

pilot market assessment by Bates Nos. 43–67), 17–18 (referring to the briefing document for the

third pilot market assessment by Bates Nos. 329–56).

Upon issuance of the revised First IAD, VA released five pages that described “the eight-

step methodology” used in the pilot studies “in full” as well as “additional pages that repeated

methodology information” and “several pages that essentially had no substantive content,” for a 17 total of thirty-eight pages. Swailes Decl. ¶ 26; see also Stuppy Decl. ¶ 8 (outlining the draft

methodology). The agency redacted certain information, including the names of facilities and

markets studied and content that would reveal the substance of the market assessments, from

twenty-two of these thirty-eight pages. See Vaughn Index at 1, 7, 11, 14, 18, 21. The remaining

451 pages were withheld in full. See id. at 1–24; supra Part I.C.

In asserting Exemption 5 to justify these withholdings, VA contends that the information

withheld from all seven documents is “part of the foundation for VA to create its National

Realignment Strategy.” Def.’s Mem. at 11; see also Vaughn Index at 2, 5, 9, 12, 16, 19, 22

(identifying “the national realignment strategy” as the overarching deliberative process to which

the challenged records relate). Each of the seven documents “contain[s] the objectives of the

market assessment project, the developed methodology, the data utilized in testing the

methodology in the selected markets, and the proposed recommendations resulting from the

application of the methodology.” Swailes Decl. ¶ 17. The withheld sections of the three pilot

market assessments “contain[] the proposed recommendations and the rationale for suggesting

those recommendations in testing the methodology in one of the pilot market assessments”

carried out by PWC, Vaughn Index at 9; see also id. at 12, 16, 22–23, while the pages withheld

from the three briefing documents are described as “a summary/briefing of the proposed

recommendations” made in their respective pilot market assessment “and the rationale for

suggesting those recommendations in testing the methodology in one of the pilot market

assessments,” id. at 2; see also id. at 6, 19. The “[p]roposed recommendations” in each

document “are based on an analysis of standard data considered by [PWC] in developing the test

methodology for the 96 pilot market assessments.” Id. at 2–3; see also id. at 6, 9, 12–13, 16, 19,

23.

18 All seven records “were used to inform VA’s needs in conducting . . . market studies” in

each of the ninety-six VISN markets, Stuppy Decl. ¶ 10, which studies “are current and ongoing”

and will identify “opportunities” for “capital investments, divestments, or shifts in services

provided” to inform VA’s National Realignment Strategy, id. ¶ 6. Specifically, VA looked to the

documents (1) “to evaluate the market assessment methodology and to determine which

deliverables might be of interest to senior leaders,” id.; (2) “to improve upon the methodology”

used to carry out the pilot studies; (3) “to test [agency leaders’] appetite” for certain types of

proposed reforms; and (4) to receive feedback on “pilot market assessments results for review by

leadership” and “the content of the pilot market assessment reports, such as formatting and what

information to include,” id. ¶ 9. VA further represents that the pilot market assessments “are not

final as they pertain to” the three markets selected for study, because they represent an early step

in the MAHSO project, which is “currently underway” and “is not considered complete until all

96 [market assessments] have been finished, as each market assessment builds/interacts with

adjacent markets.” Swailes Decl. ¶ 19; see also Stuppy Decl. ¶ 10. The agency avers that “the

recommendations contained in the documents were not fully acted upon, finalized or

operationalized.” Swailes Decl. ¶ 20; see also Stuppy Decl. ¶ 9 (“[T]he outcomes of the pilot

studies—those identified . . . ‘recommendations,’ . . . were not intended to be acted upon, but

were themselves part of the testing.”).

3. The Withheld Documents Are Predecisional and Deliberative

Based on the above description of the three pilot market assessments and three briefing

documents, VA has shown that, while thirty-eight pages describing the draft methodology used

in the studies were released, with some redactions, the deliberative process privilege properly

applies to withhold the other 451 pages of these records. The agency has adequately stated the

deliberative processes involved (i.e., VA’s deliberations about how to conduct market 19 assessments in each of its ninety-six VISN markets and, in turn, how to develop its National

Realignment Strategy); the role the withheld sections of the documents played (i.e., evaluating

the success and application of the draft methodology, considering how to present results of the

market assessments to leadership, Congress, and the public, and identifying options for

recommendations to be included in the National Realignment Strategy); and the nature of the

decisionmaking authority of the author of the documents (i.e., an outside consultant contracted to

provide advice to the agency about how to carry out uniform market assessments). The

conclusions reached in the documents offer options for the presentation, development, and types

of recommendations that the agency might choose to pursue in the course of the ninety-six VISN

market assessments and the formation of the National Realignment Strategy. PWC’s suggestions

on these topics remain under agency consideration. Similarly, the assessment of and

recommendations specific to the three pilot markets studied are not the agency’s final evaluation

of those markets. VA’s redactions from twenty-two of the thirty-eight released pages of the

names of facilities and markets studied, and content revealing the substance of the pilot market

assessments are likewise supported by these factors.

Plaintiff nonetheless challenges that the seven documents are neither predecisional nor

deliberative in nature. Each of these contentions is addressed in turn.

(a) Pilot Market Assessments and Briefing Documents Are Predecisional

Plaintiff first contends that “the pilot studies [and briefing documents] cannot be

predecisional because they only reflect the consummation of the design of the uniform

methodology” to be used by VA in completing assessments of all ninety-six VISN markets and

therefore represent the agency’s “final” view as to that methodology. Pl.’s Opp’n at 9 (emphasis

omitted); see also Pl.’s Reply at 3 (“The pilot studies only reflect finalization of the uniform

20 methodology used for the nationwide ninety-six market assessments.”). Thus, plaintiff proffers,

VA’s deliberations about the methodology at the center of the pilot market assessments have

ended and “[a]ny supposed distinction between the pilot studies being ‘complete’ but not ‘final’

is mere sleight of hand.” Pl.’s Opp’n at 10.

At the outset, the agency’s declarations, which state that “VHA uncovered ways to

improve upon” the draft methodology used in the pilot market assessments, Stuppy Decl. ¶ 9,

undermine plaintiff’s view that the pilot studies represent VA’s final methodology for

conducting the market assessments. Cf. Goodrich Corp. v. EPA, 593 F. Supp. 2d 184, 189

(D.D.C. 2009) (finding a draft groundwater flow model exempt because “evolving iterations of

the Model’s inputs and calibration . . . may not represent [the agency]’s ultimate opinions”

related to the model (internal quotation marks omitted)). More importantly, examination of the

function of the pilot market assessments in the “administrative context” of the VA reform

process outlined by the 2015 Act and the MISSION Act forecloses this argument. Sierra Club,

141 S. Ct. at 786.

In support of its claim that the pilot market assessments and briefing documents are

“final” and therefore not exempt, plaintiff argues that the documents are “entirely divorced from

[VA]’s broader [and continuing] effort to design a national realignment strategy and criteria for

future recommendations” pursuant to the 2015 Act and the MISSION Act, Pl.’s Opp’n at 9,

pointing specifically to the MISSION Act’s requirements that the AIR Commission and the

President give final approval to VA’s recommendations for realignment before they are

implemented, see id. at 9–10; Pl.’s Reply at 2–3; supra Part I.A. Plaintiff correctly notes that the

MISSION Act requires the AIR Commission to approve VA’s recommendations, see MISSION

Act § 203(c), and confers final decisionmaking authority with respect to VA reform on the

21 President, see id. §§ 203(d), 204(a). Before that final decisionmaking authority comes into play,

however, VA must carry out market assessments of each VISN, see id. § 203(b)(3), and publish

in the Federal Register and submit to Congress the criteria to be used by the agency in

developing the recommendations that will comprise its National Realignment Strategy, see id.

§ 203(a)(1), (3); and the Secretary of VA must transmit to Congress and the AIR Commission a

report on the agency’s findings and recommendations for realignment within each VISN for

approval first by the AIR Commission and then by the President, see id. §§ 203(b)(1), (3). The

Secretary’s recommendations must substantially conform to the published final criteria, see id.

§ 203(c), and account for certain factors enumerated in the MISSION Act, see id. § 203(b)(2),

but the agency is otherwise free to decide which criteria and recommendations to submit, as

plaintiff concedes, see Pl.’s Reply at 3.

Thus, as the agency rightly notes, VA retains “ultimate responsibility for developing the

criteria to be used in modernization and realignment efforts” and exercises “control over the

process leading to [its] recommendations” until those final criteria and recommendations are

published in the Federal Register or submitted to Congress and the AIR Commission, as the

MISSION Act requires. Def.’s Reply at 3; see also MISSION Act § 203(a), (b). The deadlines

for VA to do so have not yet passed. See supra Part I.A. Until they do, VA has substantial

discretion to determine which inputs are relevant to its decisionmaking process and, crucially, to

change those inputs and its resulting views on the National Realignment Strategy. The criteria,

report, and recommendations actually submitted to Congress will carry legal consequences, as

they will cabin VA’s discretion at the later stages in the formation of the National Realignment

Strategy and trigger a statutory process for review, revision, and finalization of a plan for reform

22 of VA’s health services by other actors, see MISSION Act §§ 203, 204, but VA’s preliminary

efforts to create those deliverables do not.

The place of the pilot market assessments and briefing documents within this larger

statutory process for development of the National Realignment Strategy makes clear that they are

not final, as Sierra Club understands that term. See Sierra Club, 141 S. Ct. at 786. As a first

step in the statutory process for VA reform set forth in the 2015 Act and the MISSION Act, VA

determined that the MAHSO analysis was key to complying with its obligations under those laws

and informing its choice of recommendations for each VISN. To carry out that analysis, it

entered into the Pilot Study Contract with PWC to develop a methodology for its ninety-six

VISN market assessments. The deliverables created pursuant to that Contract, the contested

records here, represent an early effort by VA to design the MAHSO analysis. They may

themselves be “complete,” insofar as VA has no immediate plans to revise them further, but they

represent just one of many steps that VA must take before the MAHSO analysis, and in turn, the

National Realignment Strategy, are “final.” At any point during this process that precedes the

submission of the agency’s findings and recommendations, so long as it remains faithful to the

final criteria that will be published in the Federal Register by May 31, 2021 and to the MISSION

Act’s guidelines for the market assessments, VA is free to change its approach to the assessments

without any consultation or review with outside actors. Even if plaintiff is correct, in practical

terms, in contending that “[t]he pilot studies only reflect finalization of the uniform methodology

used for the nationwide ninety-six market assessments,” Pl.’s Reply at 3, the use (or

abandonment) of this methodology by the agency has no legal consequences that support a

finding of finality. See Sierra Club, 141 S. Ct. at 787 (emphasizing “the legal, not practical,

consequences that flow from an agency’s action” in assessing finality).

23 Relatedly, the continuing “possibility of changes” to both the methodology and the

specific assessments and recommendations as to each of the three pilot markets set forth in the

pilot market assessments counsels against concluding that these documents are final. Id.; see

also Am. Soc’y for Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv.,

19 Civ. 3112 (NRB), 2021 WL 1163627, at *12 (S.D.N.Y. Mar. 25, 2021) (finding exempt under

Sierra Club information that “would reveal the Agencies’ interim thoughts on courses of action

that are contingent and subject to change”). Until its final report to Congress is submitted, VA

could abandon the pilot market assessments altogether, modify the methodology set forth therein,

or determine that it does not wish to pursue the types of recommendations included in the seven

deliverables, and the agency in fact states that the methodology has been and may continue to be

revised. Stuppy Decl. ¶ 9; see also Def.’s Mem. at 12 (“[T]he pilot market assessments are a part

of VA’s ongoing deliberative process to develop a final market assessment methodology[.]”

(emphasis omitted)). Moreover, VA explicitly declares that the pilot market assessments “are

not final as they pertain to” the evaluation of or recommendations concerning the three pilot

markets because “each market assessment builds/interacts with adjacent markets” and therefore

will evolve over the course of the MAHSO project. Swailes Decl. ¶ 19 (“[T]he geographic areas

covered in the pilot market assessments are being re-done in the larger 96-market assessment

project.”); see also id. ¶ 20; Stuppy Decl. ¶¶ 9–10. In the face of these clear disclaimers of

finality, the record does not support a conclusion that VA “treats” the pilot market assessments

and briefing documents “as its final view” on either the methodology for the market assessments

as a whole or the assessment of the three pilot markets in particular. Sierra Club, 141 S. Ct. at

786.

24 Recycling arguments already addressed, plaintiff attempts to distinguish Sierra Club on

the grounds that the pilot market assessments “‘reflect the consummation of the design of the

uniform methodology,’” Pl.’s Reply at 6 (quoting Pl.’s Opp’n at 9), in contrast to the draft

biological opinions at issue in Sierra Club, which were “more like ‘drafts of draft[s]’ as the

defendant agencies never held them out to be ‘final’ and considered them ‘subject to change,’”

id. at 5 (quoting Sierra Club, 141 S. Ct. at 788). Plaintiff accurately recites the teaching of

Sierra Club, but misapplies it to these records. As explained above, like the draft biological

opinions disputed in that case, the pilot market assessments and briefing documents are regarded

by VA as subject to revision as to both the methodology they propose and their specific findings

about the three pilot markets. Further, VA has not held these documents out as final in any way.

It notes in its Vaughn Index that each document is “labeled as a draft,” Vaughn Index at 2, 5, 9,

12, 16, 19, 22; see Sierra Club, 141 S. Ct. at 788 (“[A] draft document will typically be

predecisional because . . . calling something a draft communicates that it is not yet final[.]”), and

describes in its declarations the role of the documents as a first step in its larger MAHSO project,

which will culminate with the presentation of findings and recommendations to Congress and the

AIR Commission, see Stuppy Decl. ¶¶ 6–10; Swailes Decl. ¶¶ 19–20.

Plaintiff next cautions that finding these records to be predecisional “because what

matters is the ‘VA’s final decision’ in the realignment process . . . is a serious misreading of

Sierra Club” and “would require treating everything even remotely related to VA reform efforts

as privileged.” Pl.’s Reply at 5.5 The Sierra Club Court rejected a similar argument posited by

5 Plaintiff argues that “[t]he agency’s behavior in the instant proceeding . . . shows that this cannot be the right result,” pointing to VA’s “second and third productions” of responsive records, “totaling nearly 1,500 pages.” Pl.’s Reply at 5 (citing Pl.’s SMF ¶¶ 15–16). Closer scrutiny of the record discredits this claim. Although VA identified nearly 1,500 pages of responsive records in its second and third IADs, see Swailes Decl. ¶ 25; Pl.’s SMF ¶¶ 15–16; Def.’s Resp. SMF ¶¶ 15–16, the agency appears to have withheld a substantial portion of these documents pursuant to Exemptions 5 and 6. For example, VA’s August 2020 IAD identified 676 pages of responsive records and five responsive Excel sheets, Swailes Decl. ¶ 25; Pl.’s SMF ¶ 15; Def.’s Resp. SMF ¶ 15, but the parties

25 the plaintiff in that case, that allowing agencies to withhold documents based on the theoretical

possibility of changes to them, regardless of the practical consequences, “would permit [an

agency] to stamp every document ‘draft,’ thereby protecting even final agency decisions and

creating ‘secret [agency] law.’” 141 S. Ct. at 788 (second alteration in original) (quoting Sears,

421 U.S. at 153). The Court regarded this threat as minimal because “determining whether an

agency’s position is final . . . is a functional rather than formal inquiry,” noting that “[i]f the

evidence establishes that an agency has hidden a functionally final decision in draft form, the

deliberative process privilege will not apply,” but the defendant agency had not “engage[d] in

such a charade.” Id. Nor has VA. To the contrary, the record shows that VA continues to refine

its methodology as the nationwide market assessments progress and will revisit its evaluation of

the pilot markets as more information emerges.

Nor does the common-sense conclusion that these seven documents are not final in either

function or form indicate, as plaintiff suggests, see Pl.’s Reply at 5, that all records related to the

National Realignment Strategy are necessarily exempt from disclosure. Each withheld document

that relates to the National Realignment Strategy must be assessed in the “administrative

context” that produced it and in light of its function within the agency’s decisionmaking process.

Sierra Club, 141 S. Ct. at 786. As applied here, those factors indicate that the pilot market

assessment and briefing documents are not final, but that determination does not foreclose a

future finding that records related to another, distinct component of the National Realignment

Strategy, for example, VA’s development of the criteria to be published in the Federal Register,

must be disclosed.

represented to the Court that this IAD “withh[eld] 672 pages of responsive records and 5 Excel sheets in full under FOIA Exemption 5 and the deliberative process privilege, as well as FOIA Exemption 6,” while “[f]our pages were released in part,” Sept. 4 JSR at 1.

26 Plaintiff next challenges VA’s claim that the seven documents are predecisional with

respect to “each of the markets that were the subject of the three pilot market assessments.”

Def.’s Reply at 5; see Pl.’s Opp’n at 10–11; Pl.’s Reply at 6–7. As support, plaintiff argues that,

because “[t]he agency never intended to treat the pilot studies . . . as the basis for final criteria

and recommendations for the national realignment strategy,” but rather “undertook the pilot

studies to develop a uniform methodology,” the status of the pilot market assessments’ findings

as to the test markets is irrelevant. Pl.’s Reply at 7 (internal quotation marks omitted); see also

Pl.’s Opp’n at 10–11 (characterizing the pilot market assessments as “final work product,

delivered to [VA] by its contractor, which concern the methodology adopted for the nation-wide

market assessment process” (emphasis omitted)).

Even taking plaintiff’s narrow view of the role played by the pilot market assessments,

application of the draft methodology to the pilot markets was central to “allow[ing] [the agency]

to fully understand if the methodology was appropriate for use in a standardized manner,”

Stuppy Decl. ¶ 9, and these components of the reports are therefore predecisional to the final

methodology. Moreover, VA’s declarations make clear that the agency used the pilot market

assessments for purposes beyond development of the methodology, for example, to consider

which types of recommendations and reforms the agency might be interested in pursuing and

how to present its findings and recommendations in its eventual reports to Congress and the AIR

Commission. See Stuppy Decl. ¶¶ 9–10. These actual uses of the records by the agency, not

VA’s purported intentions in undertaking the pilot market assessments, are the relevant

considerations for Exemption 5 purposes. See, e.g., Sierra Club, 141 S. Ct. at 788 (looking to

documents’ “function[]” within an agency’s decisionmaking process); Ctr. for Biological

Diversity, 279 F. Supp. 3d at 147 (emphasizing “the role played by the documents at issue in the

27 course of [the deliberative process to which they relate]” in determining whether Exemption 5

was properly asserted (internal quotation marks omitted)). The findings and recommendations

made as to the pilot markets inform VA’s deliberations about its approach to the MAHSO

project and to identifying opportunities for improvement it wishes to explore further. That the

market-specific results in these seven records were not meant to act as VA’s final assessment of

those markets has no impact on their continuing role in the deliberative process.

Further, VA’s representation that “the geographic areas covered in the pilot market

assessments are being re-done in the larger 96-market assessment project,” Swailes Decl. ¶ 19,

contrary to plaintiff’s characterization, in fact supports the conclusion that the pilot market

assessments and briefing documents are predecisional as to the pilot markets. Regardless of

whether VA intended for the pilot studies to produce final evaluations of the subject markets or

not, the pilot studies reflect a preliminary effort to assess the conditions of those markets,

identify problems, and propose solutions. VA is in the process of reassessing those very

conclusions in the same markets. The pilot market assessments’ market-specific content, then, is

plainly predecisional. See, e.g., Judicial Watch, Inc., 847 F.3d at 739; Pavement Coatings Tech.

Council v. U.S. Geological Surv., 436 F. Supp. 3d 115, 127 (D.D.C. 2019) (finding documents

that “reflect[ed]” agency employees’ “thoughts regarding draft documents and preliminary

analyses of scientific studies and results” predecisional); Sack v. CIA, 49 F. Supp. 3d 15, 22–23

(D.D.C. 2014) (deeming predecisional withheld documents that “discuss[ed] progress or actions

taken on recommendations” given to an agency by an expert panel because the documents “were

part of the Agency’s ongoing process of evaluating recommendations made . . . and assessing

programmatic changes” (internal quotation marks omitted)).6

6 Plaintiff’s efforts to distinguish Stalcup v. CIA, 768 F.3d 65 (1st Cir. 2014), a case cited by VA for the proposition that “[a] decision cannot be considered final if it is subject to change,” Def.’s Reply at 5, are without

28 In short, the pilot market assessments and briefing documents about three test markets

represent a methodology for conducting uniform, nationwide market assessments, which

methodology is subject to change and indeed, has already been revised, and the assessments

themselves are currently in the process of being reexamined. The assessments will inform VA’s

determination of how to approach the ninety-six VISN market assessments, the types of

recommendations to pursue, and how to present that information to agency leadership, Congress,

and the public. They have no operative legal effect, their actual use by VA in the course of

carrying out the MAHSO analysis notwithstanding. All of these factors show that the seven

contested records are predecisional.

(b) Pilot Market Assessments and Briefing Documents Are Deliberative

Plaintiff next asserts that the seven documents “cannot be ‘deliberative’ because they do

not ‘make recommendations or express opinion on legal or policy matters’” and “do not reflect

the ‘give-and-take of the consultative process.’” Pl.’s Opp’n at 11 (first quoting Vaughn v.

Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975); then quoting Coastal States, 617 F.2d at 867). In

plaintiff’s view, “the pilot studies, and related briefing documents, do not reflect ‘internal

deliberations on the advisability of any particular course of action,’ such as finalizing

realignment criteria or other recommendations for public comment and congressional or

presidential consideration.” Id. (quoting Pub. Citizen, Inc., 598 F.3d at 875); see also Pl.’s Reply

merit. The First Circuit in Stalcup found supplemental reports prepared by the CIA in response to “new data” on a particular issue previously studied to be predecisional because, in preparing the supplements, the agency “undertook to determine whether its prior assessment was accurate or whether it needed to change its position.” Stalcup, 768 F.3d at 71–72. Unlike the requester in Stalcup, plaintiff seeks the original assessment of the pilot markets, not the revised assessments that are currently in progress. Thus, plaintiff’s claim that VA’s “reassessment of the three geographic markets chosen for the pilot studies is decidedly not an attempt to supplement or modify the outcomes of those assessments,” Pl.’s Reply at 7, is inapposite. Moreover, the court’s decision relied not, as plaintiff contends, on the agency’s “attempt to supplement or modify” its earlier report, id., but instead on the fact that the later documents were “prepared for the specific purpose of aiding the agency in its [forthcoming] determination,” 768 F.3d at 72 (internal quotation marks and citation omitted). In other words, even though the supplements revisited an earlier draft report, none of the drafts reflected the agency’s final decision on the issue discussed. The same is true of the pilot market assessments’ explication of conditions in the test markets and market-specific recommendations.

29 at 8 (challenging VA’s claim that the pilot studies are “inextricably intertwined with the draft

market assessments currently underway” (quoting Def.’s Reply at 6–7)).7

This argument construes the scope of the deliberative materials encompassed by

Exemption 5 too narrowly. The D.C. Circuit has long held that Exemption 5 “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,” Coastal

States, 617 F.2d at 866; see also Pub. Citizen, Inc., 598 F.3d at 875, and that the universe of

covered agency decisions extends “not only to official agency policies but also to agency

decisions more generally,” Pavement Coatings Tech. Council, 436 F. Supp. 3d at 127 (citing

Reliant Energy Power Generation, Inc. v. FERC, 520 F. Supp. 2d 194, 205 (D.D.C. 2007)).

Here, the pilot market assessments and briefing documents relate to VA’s choice of methodology

to carry out the market assessments, the types of improvement opportunities to pursue, and how

to present its findings to the AIR Commission, Congress, and the public. Decisions of this ilk

7 In making this argument, plaintiff points to two alleged inconsistencies in VA’s declarations, see Pl.’s Opp’n at 9–10, 10 n.5; Pl.’s Reply at 4, 8, 8 n.1, both of which are answered by examining the cherry-picked statements in context. Plaintiff first asserts that the declarations’ claim that “[t]he purpose of the pilot market assessments . . . was solely to test and refine the market assessment methodology for performing comprehensive market assessments,” Stuppy Decl. ¶ 7 (emphasis omitted); see also id. ¶ 6, stands in tension with VA’s assertion that the pilot studies are part of the deliberative processes underlying the National Realignment Strategy, see, e.g., Vaughn Index at 2. These statements, read in the context in which they appear, of describing the Pilot Study Contract, the focuses of its evaluations, and the steps taken to carry out the pilot studies, see Stuppy Decl. ¶¶ 6–7, indicate only that the pilot market assessments were designed to develop a process for performing the market assessments nationwide and reporting their outcomes rather than to generate substantive evaluations of the markets studied. They do not imply, as plaintiff suggests, that VA’s use of the deliverables would be rigidly confined to consideration of the methodology in a vacuum. The declarations’ characterization of the pilot market assessments as informing the process by which VA would undertake the balance of the MAHSO analysis is fully consistent with the agency’s representation that these records contribute to the National Realignment Strategy. Plaintiff next contends that VA’s claim that “[t]he information used and analyzed in conducting the pilot assessment is/will be used in the larger 96-market assessment project and is inextricably intertwined with the ongoing market assessments,” Swailes Decl. ¶ 18, contradicts what plaintiff portrays, without quoting the challenged portion of the cited declaration, as “testimony, which indicates the only aspect of the pilot studies imported into the subsequent nation-wide assessments is the uniform ‘methodology,’” Pl.’s Opp’n at 10 n.5 (citing Stuppy Decl. ¶¶ 6– 7); see also Pl.’s Reply at 8 n.1. Even taking plaintiff’s description of this testimony as true, no contradiction exists. Common sense dictates that, if VA has elected to use a subsequent version of the methodology tested in the pilot market assessments to conduct its final market assessments, including of the three test markets, the same data and factual information will be relevant to those studies. This reality is not inconsistent with VA’s representation that the analysis and conclusions drawn from those sources in the pilot market assessments will not be carried over into its final studies because it is in the process of reevaluating those elements.

30 are regularly held to fall within the scope of Exemption 5 even though they may not be “final” or

“official” decisions of policy or law.8 Plaintiff’s contention that the pilot market assessments

and briefing documents must have “some broader function and significance . . . in the overall

scheme of agency decisionmaking,” Pl.’s Reply at 8, is thus mistaken. VA has shown that it

continues to build on the methodology proposed in these records as it completes the MAHSO

analysis, and that these records inform its “refine[ment]” of not only the methodology, but also

the types of substantive recommendations that may be made in relation to each VISN and the

information that may be included in its market assessment reports. Stuppy Decl. ¶ 9; see also

supra Part III.A.2, 3.a. The deliberative process privilege requires nothing more.

In sum, the pilot market assessments and briefing documents are both predecisional and

deliberative, and VA properly invoked Exemption 5’s deliberative process privilege to justify its

withholding of information from these records.

B. Foreseeable Harm

Plaintiff next contends that VA has “fail[ed] to satisfy the . . . foreseeable harm

standard,” Pl.’s Opp’n at 21, under the FOIA Improvement Act of 2016 because the agency has

not “offer[ed] factual support for the supposed harms” it claims would result from disclosure, id.

at 19 (emphasis omitted), or “specifically tie[d] the expected harms to the records at issue . . . in

a reasonable manner,” id. at 21; see also Pl.’s Reply at 13–15. The FOIA Improvement Act

provides that “[a]n agency shall withhold information . . . only if the agency reasonably foresees

that disclosure would harm an interest protected by” one of the nine FOIA exemptions. 5 U.S.C.

8 See, e.g., Ecological Rights Found., 2021 WL 535725, at *15 (“[A]n agency’s consideration of what information to present to external parties and how to present it is a [protected agency] decision in itself[.]”); Husch Blackwell LLP v. EPA, 442 F. Supp. 3d 114, 122–23 (D.D.C. 2020) (holding “materials preparing officials for congressional testimony and draft responses to Congress” exempt from disclosure under the deliberative process privilege (internal quotation marks omitted)); Urban Air Initiative, Inc. v. EPA, 271 F. Supp. 3d 241, 261 (D.D.C. 2017) (finding that agency decisions about a study preliminary to creation of “an updated emissions model” were “exactly the type of agency judgments that the deliberative process privilege protects”).

31 § 552(a)(8)(A). This provision requires agencies withholding information under an exemption to

show not only that a withheld record “falls within a FOIA exemption,” but also “that the agency

‘reasonably foresees that disclosure would harm an interest protected by [the] exemption.’”

Machado Amadis, 971 F.3d at 370 (alteration in original) (quoting 5 U.S.C. § 552(a)(8)(A)(i)(I)).

An agency successfully makes this second, “heightened” showing, Judicial Watch, Inc. v.

U.S. Dep’t of Com., 375 F. Supp. 3d 93, 100 (D.D.C. 2019), by “‘identify[ing] specific harms to

the relevant protected interests that it can reasonably foresee would actually ensue from

disclosure of the withheld materials’ and ‘connect[ing] the harms in [a] meaningful way to the

information withheld,’” Ctr. for Investigative Reporting, 436 F. Supp. 3d at 106 (third alteration

in original) (quoting Judicial Watch, Inc. v. U.S. Dep’t of Justice (“Judicial Watch II”), Civ. A.

No. 17-0832 (CKK), 2019 WL 4644029, at *5 (D.D.C. Sept. 24, 2019)); see also H.R. Rep. No.

114-391, at 9 (2016) (“An inquiry into whether an agency has reasonably foreseen a specific,

identifiable harm that would be caused by a disclosure would require the ability to articulate both

the nature of the harm and the link between the specified harm and specific information

contained in the material withheld.”). Agencies therefore “must provide more than ‘nearly

identical boilerplate statements’ and ‘generic and nebulous articulations of harm.’” Ctr. for

Investigative Reporting, 436 F. Supp. 3d at 106 (quoting Judicial Watch II, 2019 WL 4644029,

at *4–5).

“[T]he agency’s burden to demonstrate that harm would result from disclosure may shift

depending on the nature of the interests protected by the specific exemption with respect to

which a claim of foreseeable harm is made.” Ecological Rights Found., 2021 WL 535725, at

*32 (citing Rosenberg v. Dep’t of Def., 442 F. Supp. 3d 240, 259 (D.D.C. 2020); S. Rep. No.

114-4, at 8 (2015)). To demonstrate foreseeable harm with respect to exemptions under the

32 deliberative process privilege, “[t]he agency ‘cannot simply rely on generalized assertions that

disclosure could chill deliberations,’” but instead “must ‘provide context or insight into the

specific decision-making processes or deliberations at issue, and how they in particular would be

harmed by disclosure.’” Id. (first quoting Machado Amadis, 971 F.3d at 371; and then quoting

Ctr. for Investigative Reporting, 436 F. Supp. 3d at 107). Contrary to plaintiff’s characterization,

however, this requirement for an agency to describe assertions of foreseeable harm with

specificity and to contextualize the harms anticipated does not require an agency to “offer factual

support for the supposed harms,” Pl.’s Opp’n at 19 (emphasis omitted); see also Pl.’s Reply at

14, as the D.C. Circuit’s recent decision in Machado Amadis v. U.S. Department of State, 971

F.3d 364 (D.C. Cir. 2020), clearly illustrates.

The D.C. Circuit in Machado Amadis considered the adequacy of an agency’s foreseeable

harm showing under the deliberative process privilege. The agency in that case produced, in

response to the plaintiff’s FOIA request, a series of “Blitz Forms,” documents used to adjudicate

FOIA appeals, with redactions under the deliberative process privilege. 971 F.3d at 369–71. In

support of the redactions, the agency’s affidavit stated that the withheld materials revealed “line

attorneys’ evaluations, recommendations, discussions, and analysis which are prepared for

senior-level review and decisionmaking,” id. at 370 (internal quotation marks omitted), and

asserted that disclosure of this information “would discourage line attorneys from candidly

discussing their ideas, strategies, and recommendations, thus impairing the forthright internal

discussions necessary for efficient and proper adjudication of administrative appeals,” id. at 371

(alteration and internal quotation marks omitted). The D.C. Circuit deemed this showing of

foreseeable harm sufficient, without any further factual proffer by the agency, because the

agency “specifically focused on the information at issue” and properly “concluded that

33 disclosure of that information would chill future internal discussions.” Id. (internal quotation

marks omitted); see also Ecological Rights Found., 2021 WL 535725, at *32.

VA’s Vaughn Index and declarations in this case make a similarly adequate showing. As

in Machado Amadis, VA identifies the contents of the documents with sufficient particularity.

See Vaughn Index at 1–24. The agency affirmatively concludes, with respect to each of the

seven challenged records, that disclosure would harm an interest protected by the privilege. See

Sierra Club, 141 S. Ct. at 785; Machado Amadis v. Dep’t of Justice, 388 F. Supp. 3d 1, 18–19

(D.D.C. 2019) (summarizing the relevant interests of the privilege); supra Part III.A.1. VA first

states that disclosure of the withheld information “would chill future agency deliberations,

causing harm to the agency’s ability to obtain a comprehensive and thoughtful analysis that

considers all aspects of the issues affected.” Vaughn Index at 3; see also id. at 6, 9, 13, 16, 19–

20, 23; Swailes Decl. ¶ 21. It further submits that “[r]eleasing data” used in the pilot market

assessments “without knowledge of how that data is being used or linked to VA

recommendations would undermine the project as the data may be misleading or misinterpreted,

causing individuals to draw conclusions about VA action that may not be accurate,” while

releasing “recommendations in the pilot studies that ultimately may not be made or proposed” in

the National Realignment Strategy would generate confusion about VA’s plans for the continued

provision of veteran health care in certain markets. Vaughn Index at 3; see also id. at 6, 10, 13,

16–17, 20, 23. In the agency’s view, the resulting speculation by the public “could further affect

VA’s ability to negotiate for private care” by exposing vulnerabilities in VA’s existing services

and could “create concern among patients, employees, and the community generally” with

respect to the implications of the non-binding, predecisional recommendations made in the pilot

market assessments. Vaughn Index at 3–4; see also id. at 7, 10, 13–14, 17, 20, 23–24; Stuppy

34 Decl. ¶¶ 13–16; Swailes Decl. ¶ 21. Finally, VA contends that “the moment a pilot assessment is

released, interested parties may interpret the pilots and try to influence the working

recommendations or opportunities (positively or negatively) identified in the pilot market

assessment or the currently underway market assessments. Shifting the focus to individual

interests would undermine the goal of the ongoing assessments, i.e., the creation of high

performing networks that provide high-quality, readily accessible care for Veterans.” Stuppy

Decl. ¶ 12; see also Swailes Decl. ¶ 21. These predicted results of disclosure are “exactly what

the privilege seeks to prevent.” Machado Amadis, 971 F.3d at 371; see also Ecological Rights

Found., 2021 WL 535725, at *32.9

Like the declarations found sufficient in Machado Amadis, VA also links these specified

harms to “specific information contained in the material withheld.” Judicial Watch II, 2019 WL

4644029, at *4 (internal quotation marks and citation omitted). For each of the seven

documents, VA explains that disclosure “would chill future agency deliberations” by impeding

“the agency’s ability to obtain [from staff or external consultants] a comprehensive and

thoughtful analysis that considers all aspects of the issues affected” and causing VA staff

engaged in the ongoing market assessments “to be subjected to pressure” from external

stakeholders “as they evaluate the data and make recommendations,” to the detriment of the

agency’s efforts to act objectively. Swailes Decl. ¶ 21; see also Vaughn Index at 3–4, 6–7, 9–10,

13–14, 16–17, 20, 23. VA further indicates that release could lead external stakeholders to

9 Plaintiff contends that VA’s assertion of public confusion or concern as a potential harm of disclosure carries no weight because the MISSION Act “opened the realignment process to public participation.” Pl.’s Reply at 14; see also Pl.’s Opp’n at 20. While the MISSION Act subjects VA’s submission of criteria and recommendations to scrutiny by the public, the AIR Commission, Congress, and eventually the President, this feedback from external stakeholders begins only after VA finalizes its criteria and recommendations internally. See supra Part I.A. Disclosure of VA’s intra-agency deliberations preceding its final determination of the criteria and recommendations that will be submitted for public scrutiny thus continues to pose risks associated with public confusion or misinterpretation, the MISSION Act’s provision for public participation in the formation of the National Realignment Strategy notwithstanding.

35 “draw erroneous conclusions” about VA’s plans for reform in one of the test markets or on a

national scale, as compared to the recommendations VA eventually includes in its National

Realignment Strategy. Swailes Decl. ¶ 21; see also Stuppy Decl. ¶¶ 15–16; Vaughn Index at 3,

6, 9, 13, 16, 20, 23–24. This explanation “specifically connects disclosure of [the records] to a

tangible chilling effect,” here among VA staff involved in the agency’s ongoing market

assessments, and a concrete risk of generating public confusion. Judicial Watch, Inc. v. U.S.

Dep’t of Justice, 487 F. Supp. 3d 38, 47 (D.D.C. 2020) (finding a similar level of detail sufficient

in light of Machado Amadis); see also Ecological Rights Found., 2021 WL 535725, at *33

(same). The standard of Machado Amadis requires nothing more.

C. Segregability

FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to

any person requesting such record after deletion of the portions which are exempt” from

disclosure. 5 U.S.C. § 552(b). Producing segregable information is essential for agencies’ FOIA

compliance, and “district courts cannot approve withholding exempt documents ‘without making

an express finding on segregability.’” Machado Amadis, 971 F.3d at 371 (quoting Morley v.

CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)); see also Stolt-Nielsen Transp. Grp. Ltd. v. United

States, 534 F.3d 728, 734 (D.C. Cir. 2008) (“[B]efore approving the application of a FOIA

exemption, the district court must make specific findings of segregability regarding the

documents to be withheld.” (internal quotation marks and citation omitted)); Sussman v. U.S.

Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (same).

In evaluating segregability, “[a]gencies are entitled to a presumption that they complied

with the obligation to disclose reasonably segregable material.” Sussman, 494 F.3d at 1117.

Even under that presumption, “the agency must provide a ‘detailed justification’ for [the exempt

material’s] non-segregability,” but need not “provide so much detail that the exempt material 36 would be effectively disclosed.” Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776 (D.C.

Cir. 2002) (quoting Mead Data Ctr., Inc. v. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir.

1977)). Affidavits attesting to the agency’s “line-by-line review of each document withheld in

full” and the agency’s determination “that no documents contained releasable information which

could be reasonably segregated from the nonreleasable portions,” in conjunction with a Vaughn

index describing the withheld record, suffice. Id. (internal quotation marks omitted); see also

Loving v. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008) (stating that “the description of the

document set forth in the Vaughn index and the agency’s declaration that it released all

segregable material” are “sufficient for [the segregability] determination”).10

To this end, VA has averred that, upon revision of the First IAD, it “re-reviewed the four

hundred and eighty-nine pages” of the seven challenged records and “released the five pages

containing the [pilot market assessment] methodology in full” as well as “additional pages that

repeated methodology information” and “several pages that essentially had no substantive

content and release of which would not harm the agency,” with redactions to twenty-two of these

pages. Swailes Decl. ¶ 26; see Vaughn Index at 1–24. As to the pages withheld in full, the

agency represents that, when issuing the First IAD, it “determin[ed] the content” of the pages,

“including factual information,” and “determined that [it] was unable to reasonably segregate

any non-exempt material as the remaining portion would have minimal or no informative or

substantive content, so as to render the document essentially meaningless.” Swailes Decl. ¶ 23.

10 The FOIA Improvement Act of 2016 added another provision concerning segregability: An agency shall “(I) consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible; and (II) take reasonable steps necessary to segregate and release nonexempt information.” 5 U.S.C. § 552(a)(8)(A)(ii). The D.C. Circuit has interpreted subsection (b) of FOIA to be satisfied by affidavits attesting to the agency’s “line-by-line review of each document withheld in full” and the agency’s determination “that no documents contained releasable information which could be reasonably segregated from the nonreleasable portions.” Johnson, 310 F.3d at 776 (internal quotation marks omitted). The FOIA Improvement Act’s new provision on segregability “appears to require no more than that.” Ctr. for Investigative Reporting, 436 F. Supp. 3d at 115.

37 It states, for each of the contested documents, that any potentially non-exempt factual

information and data is “inextricably intertwined” with privileged information, “as it contributes

to the rationale for making the proposed recommendations and methodology used in the pilots,”

Vaughn Index at 4; see also id. at 6, 9, 13, 16, 19, 23, and that “[t]he information used and

analyzed in conducting the pilot assessments is/will be used in the larger 96-market assessment

project” and thus “is inextricably intertwined with the ongoing market assessments,” Swailes

Decl. ¶ 18; see also Vaughn Index at 2, 5, 8, 12, 15, 18, 22. VA’s declarations and Vaughn

Index are therefore sufficient to establish non-segregability of the disputed exempt records.

Plaintiff raises three challenges to this conclusion. First, plaintiff disputes VA’s claim

that factual information within the documents is exempt, contending that VA has failed to

“explain in detail why factual and deliberative material are inextricably intertwined.” Pl.’s Reply

at 15 (internal quotation marks omitted); see also Pl.’s Opp’n at 22. “[W]ell-established law in

this Circuit [provides] that the deliberative process privilege operates to shield from disclosure

agency decision-making reflecting the collection, culling and assessment of factual information

or . . . data.” Ctr. for Biological Diversity v. EPA, 369 F. Supp. 3d 1, 20 (D.D.C. 2019)

(collecting cases); see also Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504,

513 (D.C. Cir. 2011) (holding exempt factual information “culled . . . from the much larger

universe of facts” available because this “reflect[ed] an exercise of judgment as to what issues

are most relevant to the pre-decisional findings and recommendations” (internal quotation marks

omitted)); Pavement Coatings Tech. Council, 436 F. Supp. 3d at 129 (similar); Goodrich Corp.,

593 F. Supp. 2d at 189 (“[E]ven if the data plugged into the model is itself purely factual, the

selection and calibration of data is part of the deliberative process to which Exemption 5

applies[.]”); Reliant Energy Power Generation, Inc., 520 F. Supp. 2d at 205–06 (finding

38 “spreadsheets and tables that analyze raw data” exempt from disclosure (alteration and internal

quotation marks omitted)). The data and facts chosen by VA, or its consultant, to test the pilot

market assessment methodology are therefore properly withheld under Exemption 5 independent

of their relationship to the remainder of the seven documents. Moreover, courts in this Circuit

routinely find “inextricably intertwined” language of a similar specificity to that proffered by VA

to be sufficient for segregability purposes. See, e.g., Elec. Frontier Found. v. Dep’t of Justice,

739 F.3d 1, 12–13 (D.C. Cir. 2014); Ecological Rights Found., 2021 WL 535725, at *34 (relying

on similar “inextricably intertwined” language in agency’s declarations); Ctr. for Biological

Diversity, 369 F. Supp. 3d at 26 (same).

Second, plaintiff contends that VA’s revision of the First IAD demonstrates that the

agency “has already once overredacted records and thus failed to conduct the necessary line-by-

line review for non-exempt material.” Pl.’s Opp’n at 22–23; see also Pl.’s Reply at 16. An

agency’s revision of its previous segregability determination does not, as plaintiff suggests, raise

an inference that the agency has failed to comply with its obligation to release all reasonably

segregable, non-exempt information. To the contrary, supplemental releases of information

“evidence[] a good-faith effort on the [agency’s] part to segregate nonexempt information where

possible.” Schoenman v. FBI, 575 F. Supp. 2d 136, 161 (D.D.C. 2008); see also Ecological

Rights Found., 2021 WL 535725, at *34 (finding the agency’s representation that it “provided

supplemental releases of information where possible” to support the conclusion that it had

released all reasonably segregable information (internal quotation marks omitted)). Nor does

VA’s revisiting of its earlier determination rebut the presumption that the agency has fulfilled its

segregability obligations. See Sussman, 494 F.3d at 1117.

39 Finally, plaintiff asserts that VA “is mistaken that it need not disclose segregable material

that it finds ‘meaningless’ or of ‘minimal or no informative or substantive content.’” Pl.’s Opp’n

at 23 (quoting Swailes Decl. ¶ 23); see also Pl.’s Reply at 16–17. As plaintiff accurately recites,

however, an agency need not release otherwise-segregable information “if it can demonstrate

that disclosure of the non-exempt portion of the document would result in the release of ‘only

incomplete, fragmented, unintelligible sentences composed of isolated meaningless words.’”

Cause of Action Inst. v. U.S. Dep’t of Com., Civ. A. No. 1:19-cv-778 (CJN), 2021 WL 148386, at

*11 (D.D.C. Jan. 14, 2021) (quoting Brown v. Dep’t of Justice, 734 F. Supp. 2d 99, 111 (D.D.C.

2010)). Plaintiff misinterprets both the burden placed on an agency by this standard and the

import of VA’s assertion that the non-exempt, segregable portions of the seven contested

records, if released independent of the exempt material, would be “essentially meaningless.”

Swailes Decl. ¶ 23. To carry its initial burden to demonstrate that it has complied with its

segregability obligations, “the agency need only show with ‘reasonable specificity’ that the

information withheld cannot be further segregated,” triggering the presumption that it has

complied with its segregability obligations. Cause of Action Inst., 2021 WL 148386, at *11

(quoting Armstrong v. Exec. Off. of President, 97 F.3d 575, 580 (D.C. Cir. 1996)). As explained

above, VA has met this requirement. The agency’s statement that any disclosure of non-exempt,

segregable information would result in release only of an “essentially meaningless” document

with “minimal or no informative or substantive content,” Swailes Decl. ¶ 23, suffices to show

that the withheld information could not be further segregated, see Cause of Action Inst., 2021

WL 148386, at *11 (finding an agency’s declaration that release of non-exempt information

“would have resulted in disclosure of ‘a meaningless set of words or phrases which have no or

minimal information content’” sufficient). The burden then shifts to plaintiff to “produce a

40 ‘quantum of evidence’ to rebut th[e] presumption.” Am. Ctr. for L. & Justice v. U.S. Dep’t of

State, 330 F. Supp. 3d 293, 306 (D.D.C. 2018) (quoting Sussman, 494 F.3d at 1117). Plaintiff

states that “the records at issue likely contain factual information that will remain both

meaningful and informative, even if heavily redacted,” Pl.’s Reply at 23 (emphasis omitted), but

offers nothing beyond this speculation that might rebut the presumption. VA has thus

demonstrated that it complied with its segregability obligations, and the disputed records are

properly withheld.

IV. CONCLUSION

For the foregoing reasons, VA’s Motion for Summary Judgment is granted and plaintiff’s

Cross-Motion for Summary Judgment is denied. VA has justified its withholdings of 451 full

pages of the seven contested records and redactions from twenty-two of the thirty-eight released

pages under Exemption 5’s deliberative process privilege, shown that foreseeable harm would

result from further disclosures, and complied with its segregability obligations.

An order consistent with this Memorandum Opinion will be entered contemporaneously.

Date: April 20, 2021 __________________________ BERYL A. HOWELL Chief Judge