UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS, et al.,
Plaintiffs,
v. Civ. Action No. 18-645 U.S. OFFICE OF MANAGEMENT AND (EGS) BUDGET,
Defendant.
MEMORANDUM OPINION
I. Introduction
Plaintiffs the Lawyers’ Committee for Civil Rights and the
National Women’s Law Center (collectively, “Plaintiffs”) filed
this action against the U.S. Office of Management and Budget
(“OMB,” “Defendant,” or the “agency”) under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. See generally Compl.,
ECF No. 1. 1 Plaintiffs seek agency records regarding OMB’s
decision to halt its initiative for the collection of pay data
from employers by the Equal Employment Opportunity Commission
(“EEOC”). See id. ¶ 1.
1 When citing electronic filings throughout this Opinion, the Court refers to the ECF page numbers, not the page numbers of the filed documents. 1 On November 24, 2020, the Court denied in part without
prejudice and held in abeyance in part OMB’s Motion for Summary
Judgment. See Lawyers’ Comm. for C.R. v. U.S. Off. of Mgmt. &
Budget, No. 18-CV-645 (EGS), 2020 WL 6887689, at *1 (D.D.C. Nov.
24, 2020). The Court also ordered the parties to submit
supplemental briefing “addressing the foreseeable harm standard,
along with any supplemental evidence Defendant may wish to
provide.” Minute Order (Dec. 30, 2020).
Upon careful consideration of OMB’s motion, the opposition,
and reply thereto, the supplemental briefing, the applicable
law, and the entire record herein, the Court hereby GRANTS OMB’s
Motion for Summary Judgment, see ECF No. 26.
II. Background
A. Factual
On September 20, 2017, Plaintiffs submitted five FOIA
requests to OMB to obtain information about an order issued by
OMB’s Office of Information and Regulatory Affairs under the
Paperwork Reduction Act, 44 U.S.C. § 3501 et seq., to initiate
an indefinite stay and review of the EEOC’s collection of pay
data through its updated EEO-1 form. See Pls.’ Counter-Statement
of Material Facts as to Which There is No Genuine Issue
(“SOMF”), ECF No. 29-1 ¶¶ 1-2. OMB has since disclosed 42
documents with redactions and withheld 23 documents in full. See
Ex. G—OMB’s Revised Vaughn List, Reply Ex. 1 (“Vaughn Index”),
2 ECF No. 30-1 at 127-46. The agency justifies its withholding of
this information under FOIA Exemption 5 and the deliberative
process privilege. See SOMF, ECF No. 29-1 ¶ 3.
B. Procedural
On September 18, 2019, OMB filed its Motion for Summary
Judgment. See Def.’s Mot. Summ. J., ECF No. 26; Mem. P. & A. in
Supp. Def.’s Mot. Summ. J. (“Def.’s Mot.”), ECF No. 26-1.
Plaintiffs filed a brief in opposition on October 25, 2019, see
Pls.’ Mem. P. & A. in Opp’n Def.’s Mot. Summ. J. (“Pls.’
Opp’n”), ECF No. 29; and OMB submitted a reply brief on November
8, 2019, see Reply in Supp. Def.’s Mot. Summ. J. (“Def.’s
Reply”), ECF No. 30.
The Court issued a Memorandum Opinion on November 24, 2020,
denying the motion in part on the issue of whether OMB properly
invoked the deliberative process privilege and holding the
motion in abeyance in part on the issue of whether OMB released
all reasonably segregable information. See Lawyers’ Comm., 2020
WL 6887689, at *4. The Court thereafter ordered OMB to file
supplemental briefing “addressing the foreseeable harm standard,
OMB filed its supplemental brief on February 17, 2021, see
Def.’s Suppl. Br., ECF No. 36, and a new declaration from
Heather V. Walsh (“Ms. Walsh”), Deputy General Counsel in OMB’s
3 Office of the General Counsel (“OGC”), see Third Decl. of
Heather V. Walsh (“Third Walsh Decl.”), ECF No. 36-1. On March
10, 2021, Plaintiffs submitted an opposition brief, see Pls.’
Suppl. Br., ECF No. 37; and OMB replied on March 24, 2021, see
Reply in Supp. Def.’s Suppl. Br., ECF No. 38. The motion is now
ripe and ready for adjudication.
III. Legal Standard
A. FOIA
FOIA cases are typically and appropriately decided on
motions for summary judgment. Gold Anti–Tr. Action Comm., Inc.
v. Bd. of Governors of Fed. Rsrv. Sys., 762 F. Supp. 2d 123, 130
(D.D.C. 2011) (citation and internal quotation marks omitted).
Summary judgment is warranted “if the movant shows [by affidavit
or other admissible 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,
4 456 (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)
(citation and 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) (per curiam) (citation and internal
citation marks 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
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. (citation and internal quotation marks
omitted). “The Court may grant summary judgment based solely on
information provided in an agency’s affidavits or declarations
when they describe ‘the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that
the information withheld logically falls within the claimed
5 exemption, and are not controverted by either contrary evidence
in the record nor by evidence of agency bad faith.’” Sierra Club
v. U.S. Fish & Wildlife Serv., 523 F. Supp. 3d 24, 31-32 (D.D.C.
2021) (quoting Mil. Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981)).
B. FOIA Exemptions
Congress enacted FOIA to “‘open up the workings of
government to public scrutiny through the disclosure of
government records.’” Jud. Watch, Inc. v. U.S. Dep’t of Com.,
375 F. Supp. 3d 93, 97 (D.D.C. 2019) (quoting Stern v. FBI, 737
F.2d 84, 88 (D.C. Cir. 1984)). 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 certain types of information,”
Critical Mass Energy Project v. Nuclear Regul. Comm’n, 975 F.2d
871, 872 (D.C. Cir. 1992) (citation and internal quotation marks
omitted). As such, pursuant to FOIA’s nine exemptions, an agency
may withhold requested information. 5 U.S.C. § 552(b)(1)-(9).
However, “[b]ecause FOIA establishes a strong presumption in
favor of disclosure, requested material must be disclosed unless
it falls squarely within one of the nine exemptions carved out
in the Act.” Burka v. U.S. Dep’t of Health & Hum. Servs., 87
F.3d 508, 515 (D.C. Cir. 1996) (citations omitted).
6 “The agency bears the burden of justifying any
withholding.” 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 Just., 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.” Jud. Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d
937, 941 (D.C. Cir. 2013) (per curiam) (citation and internal
quotation marks omitted).
IV. Analysis
FOIA Exemption 5 shields 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). A document will fall under
Exemption 5 if it meets two conditions: “‘its source must be a
Government agency, and it must fall within the ambit of a
7 privilege against discovery under judicial standards that would
govern litigation against the agency that holds it.’” Stolt–
Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 733
(D.C. Cir. 2008) (quoting Dep’t of Interior v. Klamath Water
Users Protective Ass’n, 532 U.S. 1, 8 (2001)). Accordingly, this
exemption incorporates various common-law privileges, including
the deliberative process privilege. Jud. Watch, Inc. v. Dep’t of
Energy, 412 F.3d 125, 129 (D.C. Cir. 2005) (quoting Bureau of
Nat’l Affs. v. Dep’t of Just., 742 F.2d 1484, 1496 (D.C. Cir.
1984)).
To assert the privilege, the agency must establish that the
document at issue is both “predecisional and deliberative.”
Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364, 370 (D.C.
Cir. 2020). A document is predecisional if it was “generated
before the agency’s final decision on the matter” and
deliberative if it was “prepared to help the agency formulate
its position.” Campaign Legal Ctr. v. U.S. Dep’t of Just., 34
F.4th 14, 23 (D.C. Cir. 2022) (quoting U.S. Fish & Wildlife
Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 786 (2021)). The
deliberative process privilege “should be construed ‘as narrowly
as consistent with efficient Government operation.’” Tax’n With
Representation Fund v. I.R.S., 646 F.2d 666, 677 (D.C. Cir.
1981) (quoting EPA v. Mink, 410 U.S. 73, 87 (1973)).
8 The FOIA Improvement Act (“FIA”), Pub. L. No. 114-185, 130
Stat. 538 (2016), imposes an additional requirement on agencies
seeking to invoke this or any other FOIA exemption. In relevant
part, the FIA 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). In other words, “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 its disclosure is not
prohibited by law.” Rosenberg v. U.S. Dep’t of Def., 342 F.
Supp. 3d 62, 73 (D.D.C. 2018), on reconsideration in part, 442
F. Supp. 3d 240 (D.D.C. 2020).
Here, OMB has invoked the deliberative process privilege to
withhold 23 documents in full and 42 documents in part. There is
no dispute that the withheld information is predecisional. See
SOMF, ECF No. 29-1 ¶ 7. The Court agrees with this assessment
because the documents are “antecedent” to OMB’s decision to
issue the review-and-stay memorandum. Jud. Watch, Inc. v. U.S.
Postal Serv., 297 F. Supp. 2d 252, 259 (D.D.C. 2004) (citation
omitted); see SOMF, ECF No. 29-1 ¶ 7 (“[A]ll of the information
withheld predated OMB’s final decision on August 29, 2017.”).
9 Three issues remain in this litigation: (1) whether the
documents at issue are deliberative; (2) whether OMB has
satisfied the foreseeable harm standard; and (3) whether OMB has
released all reasonably segregable information. For the reasons
listed below, the Court determines that the withholdings are
deliberative; OMB has satisfied the foreseeable harm standard;
and OMB has met its segregability obligations.
A. The Documents OMB Withheld Are Deliberative
“[A] ‘deliberative’ document is one that is ‘a direct part
of the deliberative process in that it makes recommendations or
expresses opinions on legal or policy matters.’” Jud. Watch, 297
F. Supp. 2d at 259 (quoting Vaughn v. Rosen, 523 F.2d 1136,
1143–44 (D.C. Cir. 1975)). More specifically, “[o]nly those
portions of a predecisional document that reflect the give and
take of the deliberative process may be withheld.” Pub. Citizen,
Inc. v. Off. of Mgmt. & Budget, 598 F.3d 865, 876 (D.C. Cir.
2010) (citing Access Reports v. Dep’t of Just., 926 F.2d 1192,
1195 (D.C. Cir. 1991)).
OMB uses its Vaughn index, declarations, and briefing to
show that the withheld documents are deliberative. See generally
Def.’s Mot., ECF No. 26-1; Def.’s Reply, ECF No. 30; First Walsh
Decl., ECF No. 26-3, Second Walsh Decl., ECF No. 30-1; Vaughn
Index, ECF No. 30-1 at 127-46. The Court properly considers all
of these materials to determine whether the agency has met its
10 burden. See Jud. Watch, Inc. v. Food & Drug Admin., 449 F.3d
141, 146 (D.C. Cir. 2006) (“Any measure will adequately aid a
court if it ‘provide[s] a relatively detailed justification,
specifically identif[ies] the reasons why a particular exemption
is relevant and correlat[es] those claims with the particular
part of a withheld document to which they apply.’” (quoting Mead
Data Ctr., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251
(D.C. Cir. 1977))).
Plaintiffs challenge application of the deliberative
process privilege to: (1) all of OMB’s withholdings generally;
and (2) nine withheld documents in particular. See Pls.’ Opp’n,
ECF No. 29 at 15-19. The Court addresses each issue in turn.
1. The Withheld Documents Generally
Plaintiffs contend that OMB cannot invoke the deliberative
process privilege to withhold any responsive records because
they claim that the agency has produced insufficient evidence to
support the privilege. See id. at 16-19. First, they argue that
the Vaughn index is inadequate because OMB “repeats th[e] exact
same explanation” for the majority of its entries. Id. at 17-18.
The Vaughn index gives document-specific descriptions for all
documents withheld pursuant to the deliberative process
privilege. See Vaughn Index, ECF No. 30-1 at 127-46. The index
includes ten categories of information: (1) the index entry
number; (2) the FOIA request tracking number; (3) the document
11 ID; (4) the production label range; (5) the document title (or
subject line, in the case of email communications); (6) the
sender (for email communications); (7) the recipient(s) (for
email communications); (8) the total number of pages; (9) the
production status (that is, whether entirely or partially
withheld); and (10) the reason(s) for the withholding. See id.
Although there are 87 2 entries in the index, OMB lists one
of only three distinct reasons for the withholding for each
entry:
• The withheld/redacted information consists of deliberations internal to the Executive Branch regarding OMB’s then-pending decision whether to issue a review and stay of the EEOC’s pay data collection that was under consideration among staff of OMB at the time of the discussion;
• The withheld document consists of deliberations internal to the Executive Branch regarding OMB’s then-pending decision whether to issue a review and stay of the EEOC’s pay data collection that was under consideration among staff of OMB at the time of the discussion, and no factual information could be segregated and released without revealing deliberative information;
• Withheld draft documents in the process of revision that do not reflect final agency decisions but are part of a decisionmaking process regarding OMB’s decision whether to issue a review and stay of the EEOC’s pay data collection.
2 The original Vaughn index contained 87 entries but removed 22 entries in its reply briefing. See Second Walsh Decl., ECF No. 30-1 ¶¶ 15-16. 12 Id. As OMB explains in its reply brief, see Def.’s Reply, ECF
No. 30 at 7; a Vaughn index is not inadequate simply because an
agency grouped similar documents into a single category and
provided the same reason for withholding information across that
category, see Landmark Legal Found. v. I.R.S., 267 F.3d 1132,
1138 (D.C. Cir. 2001) (“It is not the agency’s fault that
thousands of documents belonged in the same category, thus
leading to exhaustive repetition.”). Here, OMB has appropriately
grouped its withholdings into two categories: (1) inter-agency
or intra-agency email communications; and (2) draft documents.
Def’s Mot., ECF No. 26 at 13. OMB justifies its withholdings in
each category with one of the three explanations listed above.
See generally Vaughn Index, ECF No. 30-1 at 127-46. The Court
concludes that this approach is adequate to establish that the
withheld documents are deliberative.
Second, Plaintiffs argue that OMB’s evidence is inadequate
because its assertions are conclusory. See Pls.’ Opp’n, ECF No.
29 at 17-18. Plaintiffs are correct that “conclusory assertions
of privilege will not suffice to carry the Government’s burden
of proof in defending FOIA cases.” Coastal States Gas Corp. v.
Dep’t of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980). FOIA
permits withholding only if the agency shows that the document
“reflect[s] the give and take of the deliberative process.” Pub.
13 Citizen, 598 F.3d at 876. OMB therefore must establish two
elements: (1) “what deliberative process is involved”; and (2)
“the role played by the documents in issue in the course of that
process.” Senate of P.R. v. U.S. Dep’t of Just., 823 F.2d 574,
585–86 (D.C. Cir. 1987) (quoting Coastal States Gas Corp., 617
F.2d at 868).
OMB identifies the deliberative process involved for all
its withholdings: “a decision-making process conducted among
staff in OMB or in consultation with other components of the
Executive Office of the President and Executive Branch agencies
pursuant to authority delegated to OMB by the Paperwork
Reduction Act, 44 U.S.C. §§ 3501–3521, over the approval of
collection of information by the federal government” in service
of “OMB’s then-pending decision by OMB on whether to issue a
letter initiating a review and stay of the EEO-1 form.” Def.’s
Mot., ECF No. 26-1 at 13. This aligns with OMB’s statements in
its Vaughn index and declarations, see First Walsh Decl., ECF
No. 26-3; Second Walsh Decl., ECF No. 30-1; Vaughn Index, ECF
No. 30-1 at 127-46; and satisfies the first step of the inquiry.
Plaintiffs argue that OMB’s argument fails at the second
step, claiming that the agency “made no attempt to explain what
role each of these documents played in the deliberative
process.” Pls.’ Opp’n, ECF No. 29 at 18. The Court reviews OMB’s
justifications by category of withholding.
14 The first category of withholdings consists of inter-agency
or intra-agency email communications that OMB withheld in part.
OMB describes the role these emails played in the deliberative
process as “deliberations internal to the Executive Branch
regarding OMB’s then-pending decision whether to issue a review
and stay of the EEOC’s pay data collection that was under
consideration among staff at the time of the discussion.” Vaughn
Index, ECF No. 30-1 at 127-46; Def.’s Reply, ECF No. 30 at 9.
The agency has also produced the date, subject line, sender(s),
and recipient(s) of each email, thereby providing specific
contextual information about each email. See Vaughn Index, ECF
No. 30-1 at 127-46.
Plaintiffs argue that OMB has insufficiently explained the
role these email communications played in the deliberative
process. See Pls.’ Opp’n, ECF No. 29 at 18. OMB responds that it
“cannot be any more specific about the content of the email[s]
and attachments without revealing privileged information the
withholding of which is the very issue in the litigation.”
Def.’s Reply, ECF No. 30 at 9 (citing Oglesby v. U.S. Dep’t of
the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996); Peter S.
Herrick’s Customs & Int’l Trade Newsletter v. USCBP, Civ. A. No.
04-0377 (JDB), 2005 WL 3274073, at *4 (D.D.C. Sept. 22, 2005)).
The Court agrees with OMB. FOIA imposes a “difficult obligation”
on an agency “to justify its actions without compromising its
15 original withholdings by disclosing too much information.” Jud.
Watch, Inc., 449 F.3d at 146. Courts therefore require that
“[t]he description and explanation the agency offers . . .
reveal as much detail as possible as to the nature of the
document, without actually disclosing information that deserves
protection.” Oglesby, 79 F.3d at 1176. Here, the briefing and
declarations, along with the copies of the redacted emails at
issue, “adequately demonstrate that the documents constituted
candid [discussion] about whether and how” OMB should issue a
review-and-stay memorandum. Reps. Comm. for Freedom of the Press
v. Fed. Bureau of Investigation, 3 F.4th 350, 368 (D.C. Cir.
2021) (citing Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir.
2007)). The Court concludes that OMB has supplied sufficient
detail to justify the deliberative role of these email
communications. Compare ECF No. 26-3, and ECF No. 30-1, with
Senate of P.R., 823 F.2d at 585–86 (“The information provided by
the DOJ—consisting almost entirely of each document’s issue
date, its author and intended recipient, and the briefest of
references to its subject matter—will not do.”).
The second category of withholdings consists of draft
documents that OMB withheld in full. In the Vaughn index, OMB
explains the role these documents played in the deliberative
process as “draft[s] in the process of revision that do not
reflect final agency decisions but are part of a decisionmaking
16 process regarding OMB’s decision whether to issue a review and
stay of the EEOC’s pay data collection.” Vaughn Index, ECF No.
30-1 at 127-46; Def.’s Reply, ECF No. 30 at 10. In its briefing
and declarations, the agency further clarifies that these draft
documents played two roles in the deliberative process: (1) the
drafts “were ‘part of both a decisionmaking process regarding
the final composition of such documents’”; and (2) the drafts
“were ‘part of . . . the larger decisionmaking process regarding
OMB’s decision whether to issue a review and stay of the EEOC’s
pay data collection.’” Def.’s Reply, ECF No. 30 at 10 (quoting
First Walsh Decl., ECF No. 26-3 ¶ 14).
Plaintiffs again claim that OMB has not adequately
explained the role these documents played in the deliberative
process. See Pls.’ Opp’n, ECF No. 29 at 18. Indeed, “an agency
cannot withhold the material merely by stating that it is in a
draft document.” Dudman Commc’ns Corp. v. Dep’t of Air Force,
815 F.2d 1565, 1569 (D.C. Cir. 1987). Nonetheless, the Court
concludes that OMB has met its burden. The agency states that
these drafts “do not reflect final agency decisions” but are
instead draft versions of the then-pending decision to issue a
review-and-stay memorandum. Vaughn Index, ECF No. 30-1 at 127-
46; Def.’s Reply, ECF No. 30 at 10. “Proposed drafts of a non-
final agency decision that are still undergoing review, debate,
and editing are the type of deliberative work in progress that
17 falls at the core of the deliberative process privilege.” Reps.
Comm. for Freedom of the Press, 3 F.4th at 364–65 (citing U.S.
Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 786
(2021)).
2. The Nine Documents Plaintiffs Specifically Challenge
In addition to challenging the adequacy of OMB’s evidence,
see Pls.’ Opp’n, ECF No. 29 at 16-19; Plaintiffs also contest
the withholding of nine documents in particular:
Vaughn Index Entry 15: “EEO-1 Outline.docx” Document;
Vaughn Index Entries 19-22: “EEO-1/Memo for OIRA” Email and Attachments “Attach1USC,” “Attach2EEAC,” and “EEO-1 Memo Rao 07.2017.docx”;
Vaughn Index Entry 40: “Call or meet next week” Email;
Vaughn Index Entry 76: “2017-06-23 - Memorandum re Equal Pay_.docx” Document;
Vaughn Index Entry 77: “EPA Affirmative Defense Memo (June 23 2017)” Document;
Vaughn Index Entry 83: “Background Memo on EEO-1 rt jn.docx” Document.
Id. at 15-16 (citing App. A – Vaughn Index, Ex. A, ECF No. 26-3
at 53, 54-55, 60, 69, 71). Plaintiffs do not raise any new
arguments as to these withholdings. See generally Pls.’ Opp’n,
ECF No. 29. The Court briefly considers each document below.
18 a. Vaughn Index Entry 15: “EEO-1 Outline” Document
OMB maintains that this document is deliberative because
“[t]he withheld/redacted information consists of deliberations
internal to the Executive Branch regarding OMB’s then-pending
decision whether to issue a review and stay of the EEOC’s pay
data collection that was under consideration among staff of OMB
at the time of the discussion.” Vaughn Index, ECF No. 30-1 at
131. The agency has also provided some contextual information:
the EEO-1 Outline was an attachment to an email dated May 1,
2017, from EEOC Chief of Staff and Senior Counsel Jim Paretti,
Jr. to Deputy and Acting Administrator of OMB’s Office of
Information and Regulatory Affairs Dominic Mancini. See Second
Walsh Decl., ECF No. 30-1 ¶ 3. In the email, Mr. Paretti
explains that the outline is of a presentation by the EEOC’s
Acting Chair. Id. Further, the production shows that the EEO-1
Outline was forwarded to other OMB employees. See id. The Court
concludes that OMB has provided reasonably specific detail as to
the role this outline played in the deliberative process. See
Reps. Comm. for Freedom of the Press, 3 F.4th at 368.
b. Vaughn Index Entries 19-22: “EEO-1/Memo for OIRA” Email and Attachments “Attach1USC,” Attach2EEAC,” and “EEO-1 Memo Rao 07.2017.docx”
These records include: (1) an email from the EEOC Chief of
Staff to the Deputy and Acting Administrator of OMB’s Office of
Information and Regulatory Affairs on July 14, 2017; and (2)
19 three documents attached to that email. See Second Walsh Decl.,
ECF No. 30-1 ¶ 4. OMB withheld all four records in full and
states that these documents can be withheld because they
“consist[] of deliberations internal to the Executive Branch
regarding OMB’s then-pending decision whether to issue a review
and stay of the EEOC's pay data collection that was under
consideration among staff of OMB at the time of the discussion.”
Vaughn Index, ECF No. 30-1 at 131-32. This description, in
combination with the subject line, sender, and recipient of the
email, provides a reasonably specific explanation as to the role
these documents played in the deliberative process. See Reps.
Comm. for Freedom of the Press, 3 F.4th at 368.
Plaintiffs also suggest that Attach1USC and Attach2EEAC
cannot be protected from disclosure by the deliberative process
privilege because they refer to and “presumably discuss or
contain information from” two non-governmental organizations:
the United States Chamber of Commerce and the Equal Employment
Advisory Council. Pls.’ Opp’n, ECF No. 29 at 19. OMB responds
that “Plaintiff’s speculation about what the documents might
contain does not overcome the presumption of good faith accorded
to the Agency’s declaration.” Def.’s Reply, ECF No. 30 at 16.
OMB also points out that this objection does not bear on whether
the documents are deliberative in nature. See id. The Court
agrees with OMB. The Agency has averred that none of the
20 information withheld under Exemption 5 was shared with anyone
outside the Executive Branch. First Walsh Decl., ECF No. 26-3 ¶
9. And it has explained how these documents fit within the scope
of the deliberative process privilege because, as stated in the
Vaughn index, the “withheld/redacted information consists of
deliberations internal to the Executive Branch regarding OMB’s
then-pending decision whether to issue a review and stay of the
EEOC’s pay data collection that was under consideration among
OMB staff at the time of the discussion.” Vaughn Index, ECF No.
30-1 at 132. This explanation provides adequate detail to
establish the role the records played in the deliberative
process. See Reps. Comm. for Freedom of the Press, 3 F.4th at
368.
c. Vaughn Index Entry 40: “Call or Meet Next Week” Email
This record consists of a series of emails between the EEOC
Acting Chair and the Chief of Staff for Ivanka Trump, then
Advisor to the President. See Second Walsh Decl., ECF No. 30-1 ¶
5. OMB states that it may withhold parts of these email
communications because they “consist[] of deliberations internal
to the Executive Branch regarding OMB’s then-pending decision
whether to issue a review and stay of the EEOC’s pay data
collection that was under consideration among staff of OMB at
the time of the discussion.” Vaughn Index, ECF No. 30-1 at 136.
21 The agency also produced portions of these emails, including
non-deliberative email text. See Ex. C, ECF No. 30-1 at 14-21.
Thus, Ms. Walsh’s explanation, considered with the information
OMB produced for each email in this record, provides a
reasonably specific explanation as to the role these documents
played in the deliberative process. See Reps. Comm. for Freedom
of the Press, 3 F.4th at 368.
d. Vaughn Index Entry No. 76: “2017-06-23 Memorandum re Equal Pay__.docx” Document; Vaughn Index Entry No. 77: “EPA Affirmative Defense Memo (June 23 2017).docx” Document; Vaughn Index Entry No. 83: “Background Memo on EEO-1rt jn.docx” Document
OMB withheld in full “2017-06-23 Memorandum re Equal
Pay_.docx” and “EPA Affirmative Defense Memo (June 23
2017).docx,” and withheld in part “Background Memo on EEO-1rt
jn.docx.” See Second Walsh Decl., ECF No. 30-1 ¶¶ 6-8; First
Walsh Decl., ECF No. 26-3 ¶ 20. The agency justifies all three
documents as deliberative because they “consist[] of
deliberations internal to the Executive Branch regarding OMB’s
then-pending decision whether to issue a review and stay of the
EEOC’s pay data collection that was under consideration among
staff of OMB at the time of the discussion.” Vaughn Index, ECF
No. 30-1 at 143-45. OMB also states that these documents consist
of “discussion[s] involving economic, legal, and policy issues
in which the facts are inextricably intertwined with
deliberative discussion, opinions, and policy recommendations.”
22 Second Walsh Decl., ECF No. 30-1 ¶¶ 6-8. This explanation and
the titles of the documents provide adequate detail to establish
the role the records played in the deliberative process. See
Accordingly, the Court concludes that all of OMB’s
withholdings are deliberative in nature.
B. OMB Has Satisfied the Foreseeable Harm Standard
To invoke the deliberative process privilege, OMB must also
satisfy the foreseeable harm standard set forth in the FIA. See
Reps. Comm. for Freedom of the Press, 3 F.4th at 361. Under this
standard, “[a]n agency shall . . . withhold information under
this section only if . . . (I) the agency reasonably foresees
that disclosure would harm an interest protected by an exemption
described in subsection (b); or (II) disclosure is prohibited by
law.” 5 U.S.C. § 552(a)(8)(A)(i). Congress imposed this
additional requirement on agencies “to foreclose the withholding
of material unless the agency can articulate both the nature of
the harm [from release] and the link between the specified harm
and specific information contained in the material withheld.”
Reps. Comm. for Freedom of the Press, 3 F.4th at 369 (citation
and internal quotation marks omitted). This is a “heightened
standard for an agency’s withholdings under Exemption 5,” Jud.
Watch, Inc., 375 F. Supp. 3d at 100; and it constitutes “an
independent and meaningful burden,” Ctr. for Investigative
23 Reporting v. U.S. Customs & Border Prot., 436 F. Supp. 3d 90,
106 (D.D.C. 2019) (quoting NRDC v. EPA, No. 17-CV-5928 (JMF),
2019 WL 3338266, at *1 (S.D.N.Y. July 25, 2019)).
The parties did not specifically address the foreseeable
harm standard in their initial briefing, and so the Court
ordered supplemental briefing on the issue. See Minute Order
(Dec. 30, 2020). To meet its burden, OMB groups the documents
and discusses the specific foreseeable harms of disclosure on a
category-by-category basis. See Def.’s Suppl. Br., ECF No. 36 at
4. These groups correspond with the three phases of deliberation
preceding the agency’s August 2017 review-and-stay memorandum:
(1) “high-level deliberations among Executive Branch officials
whether to begin in earnest consideration of issuing a review-
and-stay memorandum”; (2) “coordination between the EEOC and OMB
culminat[ing] on July 14, 2017, when the EEOC submitted a formal
petition to OMB asking it to issue a stay of the EEO-1
collection”; and (3) “preparation and issuance of the review-
and-stay memorandum.” Id. As Plaintiffs concede, see Pls.’
Suppl. Br., ECF No. 37 at 3; this “categorical approach” is
permissible.
OMB next identifies two harms that are foreseeable if the
withheld documents are disclosed. See Def.’s Suppl. Br., ECF No.
36 at 3-6. The Court discusses each harm in turn.
24 First, the agency argues that disclosure “can be reasonably
expected to chill candid discussions within OMB and among OMB
and other Executive Branch agencies.” Id. at 3. Ms. Walsh, OMB’s
declarant, articulates the link between this harm and each
category of withheld documents in a third declaration. See Third
Walsh Decl., ECF No. 36-1. As to the first category, Ms. Walsh
draws a direct link between agency staff’s “awareness of, and
confidence in,” the deliberative process privilege and their
“willingness . . . to offer immediate impressions and contrary
arguments about matters before the government.” Id. ¶ 8. She
then points to the specific documents to clarify her point. She
states that Vaughn index entries 1-7, 47, 53-54, 73-74, 83, and
85 “contain strategic advice about initiating a deliberation”
and “arguments regarding particular policy outcomes,” the
release of which would expose the substance and procedure of
“early, high-level decisionmaking . . . to public scrutiny.” Id.
¶ 9. She also states that Vaughn index entries 14, 15, 34, 35,
37, 38, 62, 63, 75, 78, and 84 involve “the creation and editing
of broadly deliberative materials to be shared in a March 2,
2017, meeting, in which the Executive Branch decided to begin in
earnest the consideration of issuing a review-and-stay
memorandum,” the release of which would expose details about the
drafting process and meeting deliberations. Id. ¶ 10. For all
documents, Ms. Walsh explains that disclosure “would prompt OMB
25 staff to be less candid” or perhaps not meaningfully participate
in the deliberative process, which in turn would “seriously
harm[] OMB’s ability to function.” Id.
As to the second category, Ms. Walsh states that disclosure
of these inter-agency communications would inhibit OMB’s ability
to have frank and open discussions on policy matters with other
parts of the Executive Branch. See id. ¶¶ 11-14. She explains
that OMB staff make communications like the ones at issue here
“[o]n a daily basis” and that OMB policy officials rely on these
communications to inform decision makers. Id. ¶ 11. Ms. Walsh
again describes the link between the harm and the specific
documents in this category. She states that release of Vaughn
index entries 17-21, 53-54, and 73-74—documents that contain the
EEOC’s legal analysis—would cause other Executive Branch
agencies to “hesitate to provide or self-censor their
communications to OMB out of concern that the views they offered
would face public scrutiny,” “result[ing] in fewer options being
considered and fewer views being heard on a whole spectrum of
deliberations before OMB.” Id. ¶ 12. Vaughn index entries 22, 23
76, and 77 consist of inquiries and advice following a May 2,
2020 meeting about the opinions of various officials, and their
release, Ms. Walsh states, “would foreseeably inhibit similar
officials from being candid with OMB in the future.” Id. ¶ 13.
She makes the same statement regarding Vaughn index entries 40-
26 42 and 69, which contain substantive discussions between EEOC
and OMB officials about particular decision outcomes. See id. ¶
14. In sum, the agency maintains that disclosure of these
documents “would seriously hamper” OMB’s ability “to coordinate
among the Departments and agencies,” which is “the lifeblood of
OMB’s unique role in the Federal Government.” Id. ¶¶ 11, 14.
Ms. Walsh states that disclosure of the third category of
withholdings “would lead OMB staff to withhold their candid
opinions concerning these types of decisions” because these
documents reveal “the initiation, timing, scope, participants,
drafting, and publication of decisions.” Id. ¶ 15. Specifically,
Vaughn index entries 43, 48-52, 60-61, 64-66, 70, and 72 are
unfinished drafts whose disclosure would expose “the changes
that were suggested by specific staff[] and . . . the drafting
process as a whole, which would likely diminish the candor that
drafters would incorporate into their comments.” Id. ¶ 16.
Plaintiffs concede, as they must, that chilling candid
discussions within OMB and with OMB and other Executive Branch
agencies is the type of harm that the deliberative process
privilege is meant to prevent. Pls.’ Suppl. Br., ECF No. 37 at
3-4; Machado Amadis, 971 F.3d at 371. They instead argue that
Ms. Walsh’s explanation of the link between this harm and the
specific information withheld “sweep[s] too broadly.” Pls.’
Suppl. Br., ECF No. 37 at 4. They contend that OMB has made “a
27 blanket refusal to genuinely engage in the exercise of
determining whether particular material can be released without
harm” and of “taking the position that no substantive
information regarding its decisions . . . can ever be released.”
Id. at 5 (emphasis omitted).
The Court is unpersuaded by Plaintiffs’ argument and
concludes that OMB has adequately linked the harm to OMB’s
inter-agency and intra-agency discussions to the specific
information withheld here. In its declaration, OMB has explained
the content of each category of withholding and the specific
harm that would result from the release of that information. See
Ctr. for Pub. Integrity v. U.S. Dep’t of Def., 486 F. Supp. 3d
317, 337 (D.D.C. 2020). Contrary to Plaintiffs’ position, the
agency “did not present generic, across-the-board articulations
of harm . . . as to a broad range of document types.” Id.
(citation and internal quotation marks omitted). It instead
specifically addressed the information it withheld in each
category and explained why disclosure would harm future inter-
agency and intra-agency discussions. See Third Walsh Decl., ECF
No. 36-1. Accordingly, OMB “correctly understood the governing
legal requirement and reasonably explained why it was met here.”
Machado Amadis, 971 F.3d at 371.
OMB also asserts a second harm: that “releasing [its]
deliberative communications would cause public confusion about
28 [its] motives for or reasoning of the final decision in
question.” Def.’s Suppl. Br., ECF No. 36 at 3-4. Although the
briefing seems to suggest that this harm would result from
disclosure of any withheld document, see generally id. at 3-7;
Ms. Walsh explains how public confusion would ensue from
disclosure of only the third category of withholdings, see Third
Walsh Decl., ECF No. 36-1. She states that release of the draft
documents in Vaughn index entries 43, 48-52, 60-61, 64-66, 70,
and 72 would cause public confusion because those documents
contain arguments for and against certain text as well as
changes, comments, and edits. Id. ¶ 18. Revealing this
information, she continues, “would be likely to create incorrect
impressions in the public about the intentions behind this
record” and would “decreas[e] the certainty the public would
have in interpreting it.” Id. She also states that disclosure of
Vaughn entries 48-51 and 70, which are “clean” drafts without
any visible edits, comments, or “draft” labels, “could . . .
diminish[] the public’s certainty in the veracity of records
purporting to be OMB’s actual policy document.” Id. ¶ 19.
Plaintiffs concede that public confusion is another type of
harm that the deliberative process privilege is meant to
prevent. Pls.’ Suppl. Br., ECF No. 37 at 3-4. They contend,
however, that here, disclosure would not cause confusion but
instead “would provide insight into how the Agency made a
29 decision, which would clear up confusion, to the extent any
exists.” Id. at 5. Plaintiffs also dispute Ms. Walsh’s argument
as to Vaughn entries 48-51 and 70 in particular, stating that
OMB could redact text and append a “draft” label to prevent
public confusion. See id.
The Court concludes that this second harm is also
reasonably foreseeable from disclosure of the withholdings. As
the parties agree, the deliberative process privilege is
intended to protect against “confusing the issues and misleading
the public by dissemination of documents suggesting reasons and
rationales for a course of action which were not in fact the
ultimate reasons for the agency’s action.” Coastal States Gas
Corp., 617 F.2d at 866. The Court concludes that OMB has
explained how release of the documents in the third category of
withholdings would cause this harm. The declaration “goes beyond
the merely formulaic and boilerplate” language that courts
regularly reject. Pub. Emps. for Env’t Resp. v. Dep’t of
Homeland Sec., 575 F. Supp. 3d 34, 51 (D.D.C. 2021).
Plaintiffs contend that permitting these withholdings “is
inconsistent with the aims of both FOIA and the FIA.” Pls.’
Suppl. Br., ECF No. 37 at 5. The Court disagrees. FOIA
establishes a presumption of openness, Jud. Watch, Inc., 375 F.
Supp. 3d at 100; but an agency may overcome that presumption
through its supporting affidavits or declarations, see
30 Rosenberg, 342 F. Supp. 3d at 75. Further, the FIA “was intended
to restrict agencies’ discretion in withholding documents under
FOIA,” Ctr. for Investigative Reporting, 436 F. Supp. 3d at 106;
not to eliminate agencies’ use of the FOIA exemptions
altogether. As explained supra, OMB addressed the documents at
issue and reasonably explained why its withholdings are
appropriate under the FIA. See Machado Amadis, 971 F.3d at 371.
Accordingly, the Court concludes that it is reasonably
foreseeable that specific harms will result from disclosure of
the withheld documents.
C. OMB Has Established That It Produced All Reasonably Segregable Information
“The focus of the FOIA is information, not documents.” Mead
Data Cent., Inc., 566 F.2d at 260. Therefore, “even if some
materials from the requested record are exempt from disclosure,
any ‘reasonably segregable’ information from those documents
must be disclosed after redaction of the exempt information
unless the exempt portions are ‘inextricably intertwined with
exempt portions.’” Johnson v. Exec. Off. for U.S. Att’ys, 310
F.3d 771, 776 (D.C. Cir. 2002) (quoting 5 U.S.C. § 552(b)). As
relevant here, under Exemption 5, an agency may withhold “[o]nly
those portions of a predecisional document that reflect the give
and take of the deliberative process” and “must disclose those
portions of predecisional and deliberative documents that
31 contain factual information that does not inevitably reveal the
government’s deliberations.” Pub. Citizen, 598 F.3d at 876
(citations and internal quotation marks omitted).
The agency must provide “a detailed justification and not
just conclusory statements to demonstrate that all reasonably
segregable information has been released.” Valfells v. CIA, 717
F. Supp. 2d 110, 120 (D.D.C. 2010) (citation and internal
quotation marks omitted). The Court has an “affirmative duty” to
ensure that the agency satisfies its segregability obligations.
Trans–Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d
1022, 1028 (D.C. Cir. 1999). “Agencies are entitled to a
presumption that they complied with the obligation to disclose
reasonably segregable material,” which must be overcome by some
“quantum of evidence” from the FOIA requester. Sussman v. U.S.
Marshals Serv., 494 F. 3d 1106, 1117 (D.C. Cir. 2007).
Here, OMB argues that it “carefully assessed whether any
factual or otherwise nonexempt information could be segregated
and disclosed” and “determined that all nonexempt segregable
information has been released.” Def.’s Mot., ECF No. 26 at 15
(quoting First Walsh Decl., ECF No. 26-3 ¶ 19). The agency
states that it cannot release any nonexempt information from the
records it withheld in full because those “facts are
inextricably intertwined with deliberative discussion, opinions,
32 and policy recommendations.” Id. (quoting First Walsh Decl., ECF
No. 26-3 ¶ 20).
Plaintiffs argue that OMB failed to produce segregable
information, pointing out that “[e]ven where documents are
subject to the deliberative process privilege, an agency must
release ‘those portions of predecisional and deliberative
documents that contain factual information that does not
inevitably reveal the government’s deliberations.’” Pls.’ Opp’n,
ECF No. 29 at 19 (quoting Pub. Citizen, 598 F.3d at 876).
Plaintiffs argue that the nature OMB’s decision “should have
involved a consideration of the factual matters required by the
applicable rules,” concluding that the documents “likely contain
factual material and that material should be disclosed.” Id.
For example, Plaintiffs point out that “[t]he decision OMB faced
when considering staying the EEO-1 collection of pay data
required a straightforward statement of the [relevant] facts,”
but that OMB did not produce a single document regarding the
facts that would have justified staying the EEO-1 collection of
pay data. Id. at 20. Plaintiffs conclude that the relevant
declaration is “little more than conclusory and boilerplate”
language that merely “repeat[s] the legal standard” and
“offer[s] no meaningful basis” to conclude that OMB met its
segregability obligations and therefore OMB failed to meet its
burden. Id. at 20-21.
33 In reply, OMB argues that any facts it withheld are
inextricably intertwined with deliberative discussion, opinions,
and policy recommendations, noting that “[i]n some contexts, the
release of factual information does not expose the deliberations
or opinions of agency personnel, but that is not the case here.”
Def.’s Reply, ECF No. 30 at 5-6. OMB argues that the facts it
gathered and considered in its review would reveal the nature of
the deliberations here because “[a] simple bright line between
factual and deliberative material cannot be easily drawn in a
case such as this in which the facts themselves reflect the
Agency’s deliberative process.” Id. at 6.
The Court concludes that OMB has satisfied its
segregability obligations. The Court rejects Plaintiffs’
argument that “the Walsh declaration fails to establish that
none of the withheld information could be segregated and
produced,” Pls.’ Opp’n, ECF No. 29 at 23; because the Walsh
declaration explains that here, the “facts are inextricably
intertwined with deliberative discussion, opinions, and policy
recommendations, such that disclosing any facts, and how they
are presented, would reveal the thought processes of 0MB during
deliberations. Thus, I have determined that disclosure of such
factual material would reveal the nature and substance of the
agency deliberations.” Walsh Decl., ECF No. 26-3 ¶ 20. And the
Court disagrees that OMB’s justifications for withholding
34 factual information “are simply not credible,” Pls.’ Opp’n, ECF
No. 29 at 23; because OMB has explained that here, “the facts
themselves reflect the Agency’s deliberative process.” Def.’s
Reply, ECF No. 30 at 6. For these reasons, OMB has demonstrated
that disclosure of the factual information would inevitably
reveal the government’s deliberations. See Pub. Citizen, 598
F.3d at 876 (agencies “must disclose those portions of
predecisional and deliberative documents that contain factual
information that do[] not inevitably reveal the government’s
deliberations”) (citations and internal quotation marks
omitted).
V. Conclusion
For the foregoing reasons, the Court GRANTS OMB’s Motion
for Summary Judgment, see ECF No. 26.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge May 12, 2023