Competitive Enter. Inst. v. U.S. Dep't of the Treasury

308 F. Supp. 3d 109
CourtCourt of Appeals for the D.C. Circuit
DecidedApril 2, 2018
DocketCivil Case No. 12–1838–RMC
StatusPublished
Cited by3 cases

This text of 308 F. Supp. 3d 109 (Competitive Enter. Inst. v. U.S. Dep't of the Treasury) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Competitive Enter. Inst. v. U.S. Dep't of the Treasury, 308 F. Supp. 3d 109 (D.C. Cir. 2018).

Opinion

CEI complains that Treasury found no non-duplicative responsive records in its search in Legislative Affairs. See Opp'n at 36-42. In its view, the fact that Treasury initially stated that it had found "no responsive records" and then said that it found "no non-duplicative responsive records" is evidence of bad faith. Id. at 39. CEI further argues that it is unrealistic that Legislative Affairs would hold no unique responsive records. Id. at 41.

CEI fails to present evidence sufficient to establish bad faith on the part of the agency. The operative question is not whether further records could conceivably exist, or whether other possible search avenues were available, but whether Treasury's searches were "reasonably calculated to uncover all relevant documents." Nation Magazine , 71 F.3d at 890. CEI identifies no evidence that suggests that any records were intentionally withheld, that the files of likely record custodians were not searched, or that any responsive records held by Legislative Affairs were not duplicative of those found at Environment and Energy. CEI's argument is fundamentally speculative. See Mobley v. CIA , 806 F.3d 568, 581 (D.C. Cir. 2015) ("Agency affidavits-so long as they are 'relatively detailed and non-conclusory'-are 'accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.' " (quoting SafeCard Servs. Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) ). Based on the declarations submitted by Treasury, the Court concludes that Treasury's searches were adequate.

B. Reliance on Exemption 5

While Treasury withheld some records, in whole or in part, based on FOIA Exemptions 1, 5, and 6. CEI challenges only the reliance on Exemption 5. See Joint Mot. to Modify Briefing Schedule [Dkt. 22] at 2; Opp'n at 3. Exemption 5 protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552(b)(5). Described as "the deliberative process privilege," Exemption 5 "rests on *117the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery ...." U.S. Dep't of Interior v. Klamath Water Users Protective Ass'n , 532 U.S. 1, 8-9, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). "[I]ts object is to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government." Id. (internal quotations and citation omitted).

Not all internal agency records-such as those that merely restate existing policy-are covered by FOIA Exemption 5. See Pub. Citizen, Inc. v. OMB , 598 F.3d 865, 876 (D.C. Cir. 2010). When considering whether a record is appropriately withheld under Exemption 5, the Court looks to whether "the document is 'predecisional,' [i.e.,] whether it was generated before the adoption of an agency policy[,] and whether it is 'deliberative,' [ i.e.,] whether it reflects the give-and-take of the consultative process." Coastal States Gas Corp. v. U.S. Dep't of Energy , 617 F.2d 854, 859 (D.C. Cir. 1980). "To establish that a document is predecisional, the agency need not point to an agency final decision, but merely establish what deliberative process is involved, and the role that the documents at issue played in that process." Judicial Watch, Inc., v. Export-Import Bank , 108 F.Supp.2d 19, 35 (D.D.C. 2000). The agency is in the best position "to know what confidentiality is needed to 'prevent injury to the quality of agency decisions.' " Chemical Mfrs. Ass'n v. Consumer Prod. Safety Comm'n , 600 F.Supp. 114, 118 (D.D.C. 1984) (quoting NLRB v. Sears , 421 U.S. at 151, 95 S.Ct. 1504 ). Therefore, "[t]here should be considerable deference to the [agency's] judgment as to what constitutes ... 'part of the agency give-and-take-of the deliberative process-by which the decision itself is made." Id. (quoting Vaughn v. Rosen , 523 F.2d 1136, 1144 (D.C. Cir. 1975) ).

Treasury describes "five categories of documents" that it withheld as subject to Exemption 5. These categories are: (1) multiple drafts of a proposed list of Environment and Energy priority projects for 2012; (2) drafts of proposed policy initiatives and internal emails discussing such draft proposals; (3) email correspondence among its staff commenting and providing recommendations on how a public document might play a role in the agency's future policy initiatives; (4) proposed talking points, planned policy actions, or issues of possible discussion regarding a conference or public meeting; and (5) staff comments on how past policy proposals may inform plans for future policy initiatives. Reply at 6-7.

CEI challenges multiple aspects of Treasury's reliance on Exemption 5.

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308 F. Supp. 3d 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/competitive-enter-inst-v-us-dept-of-the-treasury-cadc-2018.