UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS, et al., Plaintiffs, v. Case No. 18-cv-645 (EGS)
U.S. OFFICE OF MANAGEMENT AND BUDGET, Defendant.
MEMORANDUM OPINION
This case arises out of five Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, requests Plaintiffs the Lawyers
Committee for Civil Rights and the National Women’s Law Center
(collectively “Plaintiffs”) made to Defendant, the Office of
Management and Budget (“OMB”). Plaintiffs seek records relating
to OMB’s decision to halt an initiative previously approved by
OMB for the collection of pay data from employers by the Equal
Employment Opportunity Commission (“EEOC”).
Pending before the Court is OMB’s Motion for Summary
Judgment. Upon consideration of the motion, the opposition and
the reply thereto, the applicable law, the entire record, and
for the reasons stated below, OMB’s Motion for Summary Judgment
is DENIED IN PART without prejudice and HELD IN ABEYANCE IN
PART. I. Factual and Procedural Background
The following facts are not in dispute. On September 20,
2017, Plaintiffs submitted five FOIA requests to OMB seeking
records regarding the Order of the then-Administrator of OMB’s
Office of Information and Regulatory Affairs which initiated an
indefinite stay and review of the EEOC’s collection of pay data
through its updated EEO-1 form. Plaintiff’s Counter-Statement of
Material Facts, ECF No. 29-1 at 1 ¶¶ 1, 2. What remains at issue
in this case are 23 documents that OMB withheld in full and 64
documents that OMB produced with redacted information. Id. at 1-
2 ¶¶ 3. OMB asserted Exemption 5 to the FOIA to withhold these
documents. Id.
On September 18, 2019, OMB filed a Motion for Summary
Judgment. See Def.’s Mot. Summ. J. (“Def.’s Mot.”), ECF No. 26-
1. Plaintiffs filed their opposition brief on October 25, 2019.
See Pls.’ Opp’n, ECF No. 29-1. OMB filed its reply brief on
November 8, 2019. See Def.’s Reply, ECF No. 30. The motion is
ripe and ready for the Court’s adjudication.
II. Legal Standard
FOIA cases are typically and appropriately decided on
motions for summary judgment. Gold Anti–Trust Action Comm., Inc.
v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123,
130 (D.D.C 2011) (citations omitted). Summary judgment is
warranted “if the movant shows [by affidavit or other admissible
2 evidence] that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A party opposing a summary judgment
motion must show that a genuine factual issue exists by “(A)
citing to particular parts of materials in the record . . . or
(B) showing that the materials cited do not establish the
absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c).
Any factual assertions in the moving party's affidavits will be
accepted as true unless the opposing party submits his own
affidavits or other documentary evidence contradicting the
assertion. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.
1992). However, “the inferences to be drawn from the underlying
facts . . . must be viewed in the light most favorable to the
party opposing the motion.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)(internal quotation
marks omitted).
An agency has the burden of demonstrating that “each
document that falls within the class requested either has been
produced, is unidentifiable, or is wholly [or partially] exempt
from the Act's inspection requirements.” Goland v. CIA, 607 F.2d
339, 352 (D.C. Cir. 1978) (internal citation and quotation
omitted). In reviewing a summary judgment motion in the FOIA
context, the court must conduct a de novo review of the record,
see 5 U.S.C. § 552(a)(4)(B), but may rely on agency
3 declarations. See SafeCard Servs. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991). Agency affidavits or declarations that 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.” Id. (internal citation and quotation omitted).
“[T]he Court may award summary judgment solely on the basis of
information provided by the department or agency in declarations
when the declarations describe ‘the documents and the
justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted by
either contrary evidence in the record nor by evidence of agency
bad faith.’” Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981) (citation omitted).
A. FOIA Exemptions
Congress enacted FOIA to “open up the workings of
government to public scrutiny through the disclosure of
government records.” Judicial Watch, Inc. 375 F. Supp. 3d at 97
(quoting Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984)
(internal quotation marks and alterations omitted)). Although
the legislation is aimed toward “open[ness] . . . of
government,” id.; Congress acknowledged that “legitimate
governmental and private interests could be harmed by release of
4 certain types of information,” Critical Mass Energy Project v.
Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992)
(internal quotation marks and citations omitted). As such,
pursuant to FOIA's nine exemptions, an agency may withhold
requested information. 5 U.S.C. § 552(b)(1)-(9). However,
because FOIA established a strong presumption in favor of
disclosure, requested material must be disclosed unless it falls
squarely within one of the exemptions. See Burka v. U.S. Dep't
of Health and Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996).
The agency bears the burden of justifying any withholding.
See Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 74
(D.D.C.
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UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS, et al., Plaintiffs, v. Case No. 18-cv-645 (EGS)
U.S. OFFICE OF MANAGEMENT AND BUDGET, Defendant.
MEMORANDUM OPINION
This case arises out of five Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, requests Plaintiffs the Lawyers
Committee for Civil Rights and the National Women’s Law Center
(collectively “Plaintiffs”) made to Defendant, the Office of
Management and Budget (“OMB”). Plaintiffs seek records relating
to OMB’s decision to halt an initiative previously approved by
OMB for the collection of pay data from employers by the Equal
Employment Opportunity Commission (“EEOC”).
Pending before the Court is OMB’s Motion for Summary
Judgment. Upon consideration of the motion, the opposition and
the reply thereto, the applicable law, the entire record, and
for the reasons stated below, OMB’s Motion for Summary Judgment
is DENIED IN PART without prejudice and HELD IN ABEYANCE IN
PART. I. Factual and Procedural Background
The following facts are not in dispute. On September 20,
2017, Plaintiffs submitted five FOIA requests to OMB seeking
records regarding the Order of the then-Administrator of OMB’s
Office of Information and Regulatory Affairs which initiated an
indefinite stay and review of the EEOC’s collection of pay data
through its updated EEO-1 form. Plaintiff’s Counter-Statement of
Material Facts, ECF No. 29-1 at 1 ¶¶ 1, 2. What remains at issue
in this case are 23 documents that OMB withheld in full and 64
documents that OMB produced with redacted information. Id. at 1-
2 ¶¶ 3. OMB asserted Exemption 5 to the FOIA to withhold these
documents. Id.
On September 18, 2019, OMB filed a Motion for Summary
Judgment. See Def.’s Mot. Summ. J. (“Def.’s Mot.”), ECF No. 26-
1. Plaintiffs filed their opposition brief on October 25, 2019.
See Pls.’ Opp’n, ECF No. 29-1. OMB filed its reply brief on
November 8, 2019. See Def.’s Reply, ECF No. 30. The motion is
ripe and ready for the Court’s adjudication.
II. Legal Standard
FOIA cases are typically and appropriately decided on
motions for summary judgment. Gold Anti–Trust Action Comm., Inc.
v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123,
130 (D.D.C 2011) (citations omitted). Summary judgment is
warranted “if the movant shows [by affidavit or other admissible
2 evidence] that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A party opposing a summary judgment
motion must show that a genuine factual issue exists by “(A)
citing to particular parts of materials in the record . . . or
(B) showing that the materials cited do not establish the
absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c).
Any factual assertions in the moving party's affidavits will be
accepted as true unless the opposing party submits his own
affidavits or other documentary evidence contradicting the
assertion. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.
1992). However, “the inferences to be drawn from the underlying
facts . . . must be viewed in the light most favorable to the
party opposing the motion.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)(internal quotation
marks omitted).
An agency has the burden of demonstrating that “each
document that falls within the class requested either has been
produced, is unidentifiable, or is wholly [or partially] exempt
from the Act's inspection requirements.” Goland v. CIA, 607 F.2d
339, 352 (D.C. Cir. 1978) (internal citation and quotation
omitted). In reviewing a summary judgment motion in the FOIA
context, the court must conduct a de novo review of the record,
see 5 U.S.C. § 552(a)(4)(B), but may rely on agency
3 declarations. See SafeCard Servs. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991). Agency affidavits or declarations that 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.” Id. (internal citation and quotation omitted).
“[T]he Court may award summary judgment solely on the basis of
information provided by the department or agency in declarations
when the declarations describe ‘the documents and the
justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted by
either contrary evidence in the record nor by evidence of agency
bad faith.’” Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981) (citation omitted).
A. FOIA Exemptions
Congress enacted FOIA to “open up the workings of
government to public scrutiny through the disclosure of
government records.” Judicial Watch, Inc. 375 F. Supp. 3d at 97
(quoting Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984)
(internal quotation marks and alterations omitted)). Although
the legislation is aimed toward “open[ness] . . . of
government,” id.; Congress acknowledged that “legitimate
governmental and private interests could be harmed by release of
4 certain types of information,” Critical Mass Energy Project v.
Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992)
(internal quotation marks and citations omitted). As such,
pursuant to FOIA's nine exemptions, an agency may withhold
requested information. 5 U.S.C. § 552(b)(1)-(9). However,
because FOIA established a strong presumption in favor of
disclosure, requested material must be disclosed unless it falls
squarely within one of the exemptions. See Burka v. U.S. Dep't
of Health and Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996).
The agency bears the burden of justifying any withholding.
See Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 74
(D.D.C. 2007). “To enable the Court to determine whether
documents properly were withheld, the agency must provide a
detailed description of the information withheld through the
submission of a so-called ‘Vaughn index,’ sufficiently detailed
affidavits or declarations, or both.” Hussain v. U.S. Dep't of
Homeland Sec., 674 F. Supp. 2d 260, 267 (D.D.C. 2009)(citations
omitted). Although there is no set formula for a Vaughn index,
the agency must “disclos[e] as much information as possible
without thwarting the exemption's purpose.” King v. Dep't of
Justice, 830 F.2d 210, 224 (D.C. Cir. 1987). “Ultimately, an
agency’s justification for invoking a FOIA exemption is
sufficient if it appears logical or plausible.” Judicial Watch,
5 Inc. v. U.S. Dep't of Def., 715 F.3d 937, 941 (D.C. Cir. 2013)
(internal quotation marks omitted).
III. Analysis
OMB argues that it properly invoked Exemption 5 for its
withholdings because the documents withheld in their entirely as
well as the redactions in the documents produced are protected
under the deliberative process privilege. Def.’s Mot., ECF No.
26-1 at 12. The deliberative process privilege falls under
Exemption 5. See Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C.
Cir. 2008).
A. Exemption 5
As the Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) has explained,
FOIA Exemption 5 exempts from public disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Exemption 5 incorporates the privileges that the Government may claim when litigating against a private party, including the governmental attorney-client and attorney work product privileges, the presidential communications privilege, the state secrets privilege, and the deliberative process privilege. See Baker & Hostetler LLP v. Department of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006). . . . . This “privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and
6 front page news.” Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1, 8–9, 121 S. Ct. 1060, 149 L. Ed. 2d 87 (2001). The privilege serves to preserve the “open and frank discussion” necessary for effective agency decisionmaking. Id. at 9, 121 S. Ct. 1060. The privilege protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975) (internal quotation marks omitted). As we have stated, officials “should be judged by what they decided, not for matters they considered before making up their minds.” Russell v. Department of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982) (brackets omitted). To qualify for the deliberative process privilege, [the information] must be both pre- decisional and deliberative. See Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). “[The information] is ‘predecisional’ if it precedes, in temporal sequence, the ‘decision’ to which it relates.” Senate of the Commonwealth of Puerto Rico v. Department of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987); see also Coastal States, 617 F.2d at 866 (pre- decisional documents are “generated before the adoption of an agency policy”). And [the information] is deliberative if it is “a part of the agency give-and-take—of the deliberative process—by which the decision itself is made.” Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975); see also Coastal States, 617 F.2d at 866. Abtew v. U.S. Department of Homeland Sec., 808 F.3d 895, 898-99
(D.C. Cir. 2015). The deliberative process privilege is to be
construed “as narrowly as consistent with efficient Government
7 operation.” United States v. Philip Morris, 218 F.R.D. 312, 315
(D.D.C. 2003)(quoting Taxation with Representation Fund v. IRS,
646 F.2d 666, 667 (D.C. Cir. 1981)). “[W]hen claiming the
deliberative process privilege, the agency must, at the very
least, explain in its Vaughn Indices and/or declarations, for
each contested document withheld in part or in full, (1) what
deliberative process is involved, (2) the role played by the
documents [at] 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. U.S. Envtl. Prot. Agency, 279 F. Supp.
3d 121, 147 (D.D.C. 2017)(internal quotation marks and citations
omitted).
In 2016, Congress passed the FOIA Improvement Act (“FIA”),
Pub. L. No. 114-185, 130 Stat. 538, which, relevant to this
case, codified the “foreseeable harm” standard established by
the Department of Justice in 2009 and used to defend an agency's
decision to withhold information. See S. Rep. No. 114-4, at 3 &
n.8 (2015) (citing Office of Att'y Gen., Memorandum for Heads of
Executive Departments and Agencies, Subject: Freedom of
Information Act (Mar. 19, 2009) ); S. Rep. No. 114-4, at 7–8.
Under the “foreseeable harm” standard, the Department of Justice
would “defend an agency's denial of a FOIA request only if (1)
8 the agency reasonably fores[aw] that disclosure would harm an
interest protected by one of [FOIA's] statutory exemptions, or
(2) disclosure was prohibited by law.” U.S. Dep't of Justice,
Guide to the Freedom of Information Act 25 (2009 ed.),
https://www.justice.gov/archive/oip/foia_guide09/procedural-
requirements.pdf (internal quotation marks omitted).
Accordingly, as amended by the FIA, the statutory text now
provides that: “An agency shall ... withhold information under
this section only if ... (I) the agency reasonably foresees that
disclosure would harm an interest protected by [a FOIA]
exemption; or (II) disclosure is prohibited by law[.]” 5 U.S.C.
§ 552(a)(8)(A). Stated differently, “pursuant to the [FIA], an
agency must release a record—even if it falls within a FOIA
exemption—if releasing the record would not reasonably harm an
exemption—protected interest” and if the law does not prohibit
the disclosure. Rosenberg v. U.S. Dep't of Def., 342 F. Supp. 3d
62, 72 (D.D.C. 2018) (citation omitted).
To satisfy the foreseeable harm standard, “an agency must
identify specific harms to the relevant protected interests that
it can reasonably foresee would actually ensue from disclosure
of the withheld materials and connect the harms in a meaningful
way to the information withheld.” Ctr. for Investigative
Reporting v. U.S. Customs and Border Prot. 436 F. Supp. 3d 90,
105 (D.D.C. 2019) (cleaned up). “[G]eneric, across-the-board 9 articulations of harm that largely repeat statements already
found in the Vaughn Index,” id. at 106 (internal quotation marks
and citation omitted); and “boilerplate” or “nebulous
articulations of harm are insufficient,” Judicial Watch, Inc. v.
U.S. Dep’t of Justice (Judicial Watch II), No. CV 17-0832 (CKK),
2019 WL 4644029, at *5 (D.D.C. Sept. 24, 1999). Instead, the
agency needs to provide “context or insight into the specific
decision-making processes or deliberations at issue, and how
they in particular would be harmed by disclosure.” Ctr. for
Investigative Reporting, 436 F. Supp. 3d at 107 (quoting
Judicial Watch II, 2019 WL 4644029, at *5). In satisfying this
burden, “agencies may take a categorial approach and group
together like records . . . but when using a categorical
approach, an agency must provide more than nearly identical
boilerplate statements and generic and nebulous articulations of
harm.” Id. at 106 (internal quotation marks and citations
The parties do not dispute that the withheld information is
predecisional. See Pls.’ Counter-Statement of Material Facts,
ECF No. 29-1 at 3 ¶ 7 (plaintiffs admitting that the information
being withheld if predecisional because all of it predates OMB’s
final decision regarding the EEO-1 form on August 29, 2017).
OMB’s first declaration of Heather A. Walsh, Deputy General
Counsel of OMB, explains why, in OMB’s opinion, the withheld
10 information is deliberative. See Walsh Decl., ECF No 26-3. Ms.
Walsh states that the Vaughn index attached to her declaration
“explains the basis for the[] withholdings . . . on a document-
by-document basis.” Id. at 3 ¶ 5, 4 ¶ 10. Ms. Walsh states,
among other things, that “[t]he redacted information reflects
confidential discussions and deliberations that informed OMB’s
internal policy formulation process regarding OMB’s final
decision on the review of the EEO-1 form. OMB redacted such
information from these records to protect frank discussions from
being chilled by the effects of public scrutiny of the
deliberative process.” Id. at 5 ¶ 13. However, neither party has
briefed the Court on whether Ms. Walsh’s affidavit together with
the Vaughn index satisfies OMB’s burden to meet the foreseeable
harm standard. See generally Def.’s Mot., ECF No. 26-1; Pls.’
Opp’n, ECF No. 29; Def.’s Reply, ECF No. 30.
IV. Conclusion
Accordingly, OMB’s Motion for Summary Judgment is DENIED IN
PART without prejudice as to whether OMB properly invoked the
deliberative process privilege; and HELD IN ABEYANCE IN PART as
to whether OMB released all reasonably segregable information.
11 The parties shall meet and confer and by no later than December
18, 2020 propose a schedule for an additional round of summary
judgment briefing. A separate Order accompanies this Memorandum
Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge November 24, 2020