Citizens for Responsibility and Ethics in Washington v. General Services Administration

• Court: District Court, District of Columbia
• Decided: February 26, 2021
• Docket: Civil Action No. 2018-2071
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff Civil Action No. 18-2071 (CKK) v. GENERAL SERVICES ADMINISTRATION, Defendant

MEMORANDUM OPINION (February 26, 2021)

This lawsuit arises from a Freedom of Information Act (“FOIA”) request made by Plaintiff

Citizens for Responsibility and Ethics in Washington (“CREW”) to Defendant General Services

Administration (“GSA”). CREW requested all communications from January 20, 2017 to July 30,

2018 between GSA and the White House concerning the renovation of the Federal Bureau of

Investigation (“FBI”) headquarters. Pending before the Court are [45] Defendant’s Motion for

Summary Judgment (“Def.’s Mot.”) and [46] Plaintiff’s Cross-Motion for Summary Judgment

(“Pl.’s Mot.”).

For the reasons below, the Court finds that in camera review of certain documents withheld

by Defendant under FOIA Exemptions 5 and 7(E) is necessary to make a responsible de novo

determination on the claims of exemption. In addition, the Court finds that the inadequacy of

Defendant’s Vaughn Index and affidavit with respect certain categories of withheld material

prevent the Court from evaluating whether Defendant’s claimed exemptions are proper.

Accordingly, the Court shall GRANT that portion of Plaintiff’s Cross-Motion for Summary

Judgment seeking in camera review with respect to certain categories of material withheld

pursuant to FOIA Exemptions 5 and 7(E) and shall HOLD IN ABEYANCE the remainder of that

motion and Defendant’s Motion for Summary Judgment. The Court shall ORDER Defendant to

1 submit to the Court for in camera review unredacted versions of the documents withheld pursuant

to Exemption 5 included in Defendant’s Categories 2, 3, 4, 5, and 6 1 (Vaughn Index at 5-9) and

the page redacted pursuant to Exemption 7(E) (id. at 4). In addition, the Court shall ORDER

Defendant to file a supplemental Vaughn Index providing additional information with respect to

Defendant’s Categories 2, 3, and 6 (Vaughn Index at 5, 6, 9).

DISCUSSION

On July 30, 2018, CREW submitted a FOIA request to GSA, seeking to acquire “copies of

all communications from January 20, 2017 to [July 30, 2018] between GSA and the White House

concerning the renovation of the FBI headquarters.” Def.’s Mot. Ex. 1 (July 30, 2018 FOIA

Request), ECF No. 45-3. At issue in the parties’ cross-motions are Defendant’s withholding of

documents based on FOIA Exemptions 5 and 7(E). Plaintiffs have disputed these withholdings.

The Court does not intend to resolve all disputes through this Memorandum Opinion. Instead, the

Court has determined that it shall require Defendant to submit certain documents for in camera

review and shall also require Defendant to supplement its Vaughn Index with respect to some of

these same documents to allow the Court to make a de novo determination on certain claims of

exemption under FOIA Exemptions 5 and 7(E).

A. The Court Shall Order Defendant to Produce for In Camera Review Certain Documents Withheld by Defendant.

“FOIA provides district courts the option to conduct in camera review, 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)). In camera review is

appropriate when such review is necessary for a district court “to make a responsible de novo

1 The “categories” referenced throughout this Memorandum Opinion correspond to the categories demarcated by Defendant in its Motion for Summary Judgment. See Def.’s Mot. at 8-9. 2 determination on the claims of exemption.” Juarez, 518 F.3d at 60 (internal quotation marks

omitted). “When the agency meets its burden by means of affidavits, in camera review is neither

necessary nor appropriate.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1387

(D.C. Cir. 1979). But “affidavits will not suffice if the agency’s claims are conclusory, merely

reciting statutory standards, or if they are too vague or sweeping.” Id. “[D]istrict courts possess

broad discretion regarding whether to conduct in camera review.” Larson, 565 F.3d at 870. In this

case, making a responsible de novo determination of many of Defendant’s FOIA exemption claims

requires in camera review of the withheld information because Defendants have failed to “provide

specific information sufficient to place the documents within the exemption category.” ACLU v.

Dep’t of Def., 628 F.3d 612, 626 (D.C. Cir. 2011) (internal quotation marks omitted).

In addition to the agency’s affidavit, Defendant has submitted a Vaughn index. See Vaughn

Index, ECF No. 45-7. In its Opposition, Defendant argues that in camera review is not necessary

because Defendant’s affidavit and Vaughn Index provide sufficiently detailed information about

each document to place the withheld information within the claimed exemption category.” See

Def.’s Opp’n at 21, ECF No. 49. The Court disagrees. Agency affidavits and a Vaughn index are

sufficient to justify summary judgment when they show, with reasonable specificity, why the

redactions fall within the FOIA Exemption. “The affidavits will not suffice if the agency's claims

are conclusory, merely reciting statutory standards, or if they are too vague or sweeping.” Hall v.

CIA, 881 F. Supp. 2d 38, 74 (D.D.C. 2012) (quoting Hayden v. Nat'l Sec. Agency, 608 F.2d 1381,

1387 (D.C. Cir. 1979), cert. denied, 446 U.S. 937 (1980)). Here, the Court finds that the Vaughn

Index entries and Defendant’s affidavit are insufficiently specific with respect to the claimed

withholdings discussed here.

3 Some background on each exemption provides context for why in camera review is

warranted here. Exemption 5 applies to “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). “To qualify [for this exemption], a document must thus satisfy two

conditions: its source must be a Government agency, and it must fall within the ambit of a privilege

against discovery under judicial standards that would govern litigation against the agency that

holds it.” Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).

Over the years, it has been construed as protecting “those documents, and only those documents,

normally privileged in the civil discovery context.” Nat’l Labor Relations Bd. v. Sears, Roebuck

& Co., 421 U.S. 132, 149 (1975). As is relevant to this case, available privileges include the

attorney-client privilege, the deliberative process privilege, and the presidential communications

privilege. Judicial Watch, Inc. v. Dep’t of Defense, 913 F.3d 1106, 1109 (D.C. Cir. 2019).

The Court has determined that in camera review is appropriate for certain documents

withheld pursuant to Exemption 5. Given the low volume of records at issue, the Court shall order

Defendants to submit for in camera review the following records withheld under Exemption 5:

• Category 2 – Four pages fully withheld of “[a] draft copy of GSA’s responses to Questions for the Record from the U.S. Senate’s Committee on Environment and Public Works regarding the FBI Headquarters Project sent between White House Counsel and GSA’s Office of General Counsel.” Vaughn Index at 5.

• Category 3 – Nineteen pages fully withheld of “[a] draft copy of GSA’s Office of the Inspector General’s (IG) Draft Review of GSA’s Revised Plan for the FBI Headquarters Consolidation Project sent between White House Counsel and GSA’s Office of General Counsel.” Id. at 6.

• Category 4 – Three pages fully withheld of “[a] draft copy of correspondence from GSA’s General Counsel to GSA IG’s Counsel to the Inspector General concerning a records request for the FBI Headquarters Project.” Id. at 7.

4 • Category 5 – One page fully withheld of “[a] White House Briefing Itinerary regarding a discussion of the future of the FBI headquarters on January 24, 2018.” Id. at 8.

• Category 6 – Ninety-one pages fully withheld of “email communications between GSA officials and OMB officials” regarding four topics: (1) proposed testimony of a Congressional hearing; (2) communications plans including possible talking points and press statements; (3) the drafts of the FBI project status for relevant stakeholders on Capitol Hill and off, and (4) proposed response to Congressional Questions for the Record.” Id. at 9

The Vaughn Index and supporting affidavit do not provide the Court with sufficient context to

determine whether the privileges claimed by Defendant apply. 2 As one example, Defendant’s

description of the White House briefing itinerary (Category 5) does not provide enough

information for the Court to determine whether the record was “authored or solicited and received

by those members of an immediate White House adviser’s staff who have broad and significant

responsibility for investigating and formulating the advice to be given the President on the

particular matter to which the communications relate.” In re Sealed Case, 121 F.3d 729, 752 (D.C.

Cir. 1997) (emphasis added). “Only communications at that level are close enough to the President

to be revelatory of his deliberations or to pose a risk to the candor of his advisers.” Id. The Vaughn

Index merely recites the standard for the privilege: “[t]his document is a communication prepared

by presidential advisers who have broad and significant responsibility for investigating and

formulating advice for the President.” Vaughn Index at 8 (emphasis added). It provides no basis

for the Court to discern whether the communication was “authored or solicited” by “an immediate”

adviser of the President. Similarly, the Vaughn Index for Category 3 merely recites the standard

for claiming the attorney-client privilege, without providing enough context for the Court to

2 The Court shall provide examples of the deficiencies with respect to documents withheld under the deliberative process privilege infra Part B. Because of those deficiencies, the Court shall require Defendant to produce the documents for in camera review in addition to providing a supplemental Vaughn Index. 5 determine whether the communication “had a primary purpose of obtaining or providing legal

advice.” Am. Oversight v. Gen. Servs. Admin., 311 F. Supp. 3d 327, 342 (D.D.C. 2018). 3 The

attorney-client privilege does not protect a communication simply because an attorney was

involved. Id. Rather, Defendant must demonstrate that “information . . . was communicated to or

by an attorney as part of a professional relationship” and “that the information is confidential. If

the information has been or is later shared with third parties, the privilege does not apply.” Id.

(internal citations and quotation marks omitted).

The Court shall also require Defendant to submit for in camera review the portion of the

document indicated on page 4 of its Vaughn Index as redacted pursuant to Exemption 7(E):

• Redaction of “portions of communications between an Assistant Special Agent within GSA’s IG office and the Special Assistant to the GSA Administrator regarding the basis of the IG’s request to interview the Administrator” from “[e]mail communications between January 20, 2017, to July 30, 2018, between GSA and the White House concerning the renovation of FBI Headquarters.” Vaughn Index at 2, 4.

FOIA’s Exemption 7(E) applies to “records or information compiled for law enforcement

purposes” to the extent release of such information would “disclose techniques and procedures for

law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement

investigations or prosecutions if such disclosure could reasonably be expected to risk

circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Although Exemption 7(E) sets “a low bar for

the agency to justify withholding,” the agency must “at least provide some explanation of what

3 As Plaintiff indicates in its Motion for Summary Judgment, the draft document described in Category 3 appears under cover of an email sent by a GSA official to one White House official and one Office of Legal Counsel official. See Pl.’s Mot. at 27; at Pl.’s Mot. Ex 5. Defendant suggests that the fact that the document was sent to OLC attached to an email stating it was sent “[f]or discussion at our meeting tomorrow” makes the “context of legal analysis and advice” of the document “clear.” Def.’s Opp’n at 2, ECF No. 49. Absent additional context, the Court does not agree that it is “clear” this document may be withheld pursuant to the attorney-client privilege.

6 procedures are involved and how they would be disclosed. C.R.E.W. v. Dep’t of Justice, 746 F.3d

1082, 1102 (D.C. Cir. 2014) (citing Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C. Cir. 2011)).

“[N]ear-verbatim recitation of the statutory standard is inadequate.” Id. The agency must address

what procedures are at stake, and how disclosure of the materials would reveal such procedures.

Id. Here, neither Defendant’s affidavit nor the Vaughn Index provide sufficient specificity

pursuant to Exemption 7(E) regarding what investigative procedures or techniques are involved

and how they would be disclosed by production of the document. See id. Accordingly, the Court

shall order Defendant to produce for in camera review the portion of the document withheld

pursuant to Exemption 7(E).

B. The Court Shall Order Defendant to Supplement its Vaughn Index for Certain Documents Withheld Pursuant to the Deliberative Process Privilege.

In addition to requiring Defendant to submit the documents discussed above for in camera

review, the Court shall also order Defendant to supplement its Vaughn Index with respect to three

categories of records withheld pursuant to the deliberative process privilege under FOIA’s

Exemption 5—Categories 2, 3, and 6. See supra at pp. 4-5; Vaughn Index at 5, 6, and 9. The Court

finds that Defendant’s Vaughn Index and affidavit are inadequate with respect to these categories,

and is not confident that in camera review alone—absent additional contextual details provided

by a supplemental Vaughn Index—will allow the Court to render a decision on the propriety of

Defendant’s withholdings.

When withholding information pursuant to the deliberative process privilege, the agency

is required to provide the following information for each document at issue: “(1) the nature of the

specific deliberative process involved, (2) the function and significance of the document in that

process, and (3) the nature of the decisionmaking authority vested in the document's author and

recipient.” Pub. Emps. for Envtl. Resp. v. E.P.A., 213 F. Supp. 3d 1, 13 (D.D.C. 2016). Although

7 Defendant is not required to identify “a specific agency decision,” it is required to show that the

document was “generated as part of a definable decision-making process.” Id. (emphasis in

original). Moreover, the agency must provide some context of the function and significance of the

document(s) in the agency’s decisionmaking process in order for the Court to evaluate “whether

material is pre-decisional, because ‘if documents are not part of a clear ‘process’ leading to a final

decision on the issue, . . . they are less likely to be properly characterized as pre-decisional.’” Id.

(quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980)). And

finally, some indication of the “nature of the decisionmaking authority vested in the office or

person issuing the dispute document(s), and the positions in the chain of command of the parties

to the documents” is required. Id. (quoting Arthur Anderson & Co. v. I.R.S., 679 F.2d 254, 258

(D.C. Cir. 1982)). “The D.C. Circuit has instructed that the ‘identity of the parties . . . is important’

to evaluating the withholding of material pursuant to the deliberative process privilege, because

the relative position of the author and recipient aids the court in determining whether a document

is predecisional.” Id. (citing Coastal States, 617 F.2d at 868) .

Although not exhaustive, the Court shall address some of the inadequacies of Defendant’s

Vaughn Index. For example, Category 6 merges into a single entry 91 pages of withheld materials,

indicating that these documents address four different topics. Vaughn Index at 9. This plainly falls

short of the requirement that the agency to provide appropriate information for “each document”

at issue. Pub. Emps., 213 F. Supp. 3d at 13 (emphasis added). That same entry provides the Court

no notice of the “function” of each document in the deliberative process; rather it indicates only

that all of the withheld communications are “predecisional and deliberative, in that they were made

with the purpose of soliciting comments and feedback from others to ensure accuracy, consistency,

and completeness in the ultimate communications made or documents provided to various outside

8 parties.” Vaughn Index at 9. This imprecise description provides the Court no basis to determine

the nature of the deliberative process involved, the function of each document in that process, or

the nature of the decisionmaking authority of the document’s author or recipient. Pub. Emps., 213

F. Supp. 3d at 13. The Vaughn Index entries for Categories 2, 3, and 6 provide only vague reference

to the identities of the records’ authors. See, e.g., Vaughn Index at 9 (communications “between

GSA officials and OMB officials”); id. (“email conversation between GSA, FBI, and OMB”); id.

at 5 (“interagency deliberations between the Office of White House Counsel and GSA’s Office of

General Counsel”); id. at 6 (“draft . . sent between White House Counsel and GSA’s Office of

General Counsel”). Defendant must do more to show that its withholdings are proper.

The Court has several options to proceed with respect to its finding that the portions of the

Vaughn Index are insufficient. See Spirko v. U.S. Postal Serv., 147 F.3d 992, 997 (D.C. Cir. 1998)

(explaining that if a court finds that an “agency fails to provide a sufficiently detailed explanation

to enable the district court to make a de novo determination of the agency's claims of exemption,

the district court then has several options, including inspecting the documents in

camera, requesting further affidavits, or allowing the plaintiff discovery.”). As noted above, the

Court shall require Defendant to submit to the Court the withheld Category 2, 3, and 6 documents

for in camera review. However, the Court shall also require Defendant to provide a supplemental

Vaughn index for these categories so that the Court may ascertain the “(1) the nature of the specific

deliberative process involved, (2) the function and significance of the document in that process,

and (3) the nature of the decisionmaking authority vested in the document's author and

recipient.” Pub. Emps., 213 F. Supp. 3d at 13.

9 CONCLUSION

For the foregoing reasons, the Court shall GRANT that portion of Plaintiff’s Cross-Motion

for Summary Judgment seeking in camera review with respect to certain categories of material

withheld pursuant to FOIA Exemptions 5 and 7(E) and shall HOLD IN ABEYANCE the

remainder of that motion and Defendant’s Motion for Summary Judgment. The Court shall

ORDER Defendant to submit to the Court for in camera review by no later than MARCH 5, 2021

unredacted versions of the documents withheld pursuant to Exemption 5 included in Defendant’s

Categories 2, 3, 4, 5, and 6 (Vaughn Index at 5-9) and the page redacted pursuant to Exemption

7(E) (id. at 4). In addition, the Court shall ORDER Defendant to file by no later than MARCH

12, 2021 a supplemental Vaughn Index providing additional information with respect to

Defendant’s Categories 2, 3, and 6 (Vaughn Index at 5, 6, 9).

An appropriate Order accompanies this Memorandum Opinion. Following the release of

this Memorandum Opinion and the accompanying Order, the Court shall contact Defendant to

arrange a method for the delivery of the materials.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge