UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
VERN MCKINLEY,
Plaintiff, MEMORANDUM OPINION v. GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT FEDERAL HOUSING FINANCE AGENCY, Civil Action 10-1165 (BJR)
Defendant.
MEMORANDUM OPINION
In this action against the Federal Housing Finance Authority (“FHFA”), Plaintiff Vern
McKinley claims that FHFA improperly withheld two documents responsive to a records request
that he submitted under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq. In
accordance with an earlier ruling in this case, the parties filed a joint status report [Dkt. # 18] to
which they attached portions of the disputed documents that FHFA released pursuant to a court-
ordered “segregability analysis.” See Order of August 26, 2011. Before the Court are the parties’
cross motions for summary judgment [Dkt. ## 9, 11], and McKinley’s corresponding request that
the Court order the production of any additional, segregable material after an in camera
comparison of the disputed documents and the portions FHFA has released. See Joint Status
Report [Dkt. # 18]. Upon consideration of the parties’ motion, the oppositions thereto, and the
record of this case, the Court concludes that FHFA’s motion should be granted and McKinley’s
motion denied.
I. BACKGROUND
McKinley is seeking materials related to FHFA’s 2008 decision to place the Federal National Mortgage Association (also known as “Fannie Mae”) and the Federal Home Loan
Mortgage Corporation (also known as “Freddie Mac”) in conservatorship. See McKinley v. Fed.
Hous. Fin. Auth., 789 F. Supp. 2d 85, 86 (D.D.C. 2011). In response to McKinley’s request,
FHFA located three responsive documents but withheld all of them claiming that they were
protected by the deliberative-process, work-product, and attorney-client privileges that are
incorporated into FOIA’s Exemption 5. Id.; see 5 U.S.C. § 552(b)(5). McKinley dropped his
claims as to the first document, but maintained that defendants were required to release the
second and third documents. After an in camera review of both disputed documents, the
Honorable Henry H. Kennedy, Jr. held that the work-product privilege did not apply but that the
documents were subject to the deliberative-process privilege. See Order of August 26, 2011;
McKinley, 789 F. Supp. at 87. In accordance with 5 U.S.C. § 552(b), Judge Kennedy ordered
FHFA to produce all factual material that was “reasonably segregable” from the protected
documents. See Order of August 26, 2011. Having held the parties’ cross-motions for summary
judgment in abeyance while FHFA conducted its segregability analysis, the Court now returns to
them.
II. LEGAL STANDARD
“Summary judgment is proper if there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.” McKinley v. Bd. of Governors of Fed.
Reserve Sys., 647 F.3d 331, 335 (D.C. Cir. 2011); accord Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48 (1986); FED . R. CIV . P. 56(a). In the FOIA context, the agency seeking to
avoid disclosure of documents must show that “each document that falls within the class
requested either has been produced, is unidentifiable, or is wholly exempt from the Act’s
2 inspection requirements.” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (quoting Nat’l
Cable Television Ass’n, Inc. v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)) (internal quotation
marks omitted). The exemptions “are to be narrowly construed,” FBI v. Abramson, 456 U.S.
615, 630 (1982), and the district court must conduct a de novo review of the record. 5 U.S.C. §
552(a)(4)(B). Courts must view the facts in the light most favorable to the requester and
“ascertain whether the agency has sustained its burden of demonstrating that the documents
requested . . . are exempt from disclosure.” Assassination Archives & Research Ctr. v. Cent.
Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (internal quotation marks omitted). If
courts find that any records were improperly withheld, they may order their production. 5 U.S.C.
§ 552(a)(4)(B).
III. ANALYSIS
The Court now turns to the motions at hand and examines whether any genuine issue of
material fact remains as to the release of the two disputed documents. In the parties’ joint status
report, FHFA maintains that, pursuant to its segregability analysis, it has released all material that
is not protected by the deliberative process privilege and therefore not exempt from disclosure
under FOIA. McKinley, who has not had access to the complete versions of either document,
has no way of countering this argument. Thus, he requests in the joint status report that Court
determine through an in camera review of the documents whether the material that FHFA has
disclosed includes all factual content that can be reasonably segregated from material protected
by the deliberative process privilege. See 5 U.S.C. § 552(b); Army Times Publ’g Co. v. Dep’t of
Air Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993).
“[T]he deliberative process privilege does not protect documents in their entirety; if the
3 government can segregate and disclose non-privileged factual information within a document, it
must.” See Loving v. Dep’t of Defense, 550 F.3d 32, 38 (D.C. Cir. 2008). However, factual
material that is “inextricably intertwined with exempted portions” of the documents needs not be
disclosed. Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 775 (D.C. Cir. 2002)
(citations omitted). To fulfill its obligations, an agency need not “commit significant time and
resources to the separation of disjointed words, phrases, or even sentences which taken separately
or together have minimal or no information content.” Mead Data Cent., Inc. v. U.S. Dep’t of Air
Force, 566 F.2d 242, 269 n.55 (D.C. Cir. 1977). Rather, it must separate out what is reasonably
segregable, see 5 U.S.C. § 552
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
VERN MCKINLEY,
Plaintiff, MEMORANDUM OPINION v. GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT FEDERAL HOUSING FINANCE AGENCY, Civil Action 10-1165 (BJR)
Defendant.
MEMORANDUM OPINION
In this action against the Federal Housing Finance Authority (“FHFA”), Plaintiff Vern
McKinley claims that FHFA improperly withheld two documents responsive to a records request
that he submitted under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq. In
accordance with an earlier ruling in this case, the parties filed a joint status report [Dkt. # 18] to
which they attached portions of the disputed documents that FHFA released pursuant to a court-
ordered “segregability analysis.” See Order of August 26, 2011. Before the Court are the parties’
cross motions for summary judgment [Dkt. ## 9, 11], and McKinley’s corresponding request that
the Court order the production of any additional, segregable material after an in camera
comparison of the disputed documents and the portions FHFA has released. See Joint Status
Report [Dkt. # 18]. Upon consideration of the parties’ motion, the oppositions thereto, and the
record of this case, the Court concludes that FHFA’s motion should be granted and McKinley’s
motion denied.
I. BACKGROUND
McKinley is seeking materials related to FHFA’s 2008 decision to place the Federal National Mortgage Association (also known as “Fannie Mae”) and the Federal Home Loan
Mortgage Corporation (also known as “Freddie Mac”) in conservatorship. See McKinley v. Fed.
Hous. Fin. Auth., 789 F. Supp. 2d 85, 86 (D.D.C. 2011). In response to McKinley’s request,
FHFA located three responsive documents but withheld all of them claiming that they were
protected by the deliberative-process, work-product, and attorney-client privileges that are
incorporated into FOIA’s Exemption 5. Id.; see 5 U.S.C. § 552(b)(5). McKinley dropped his
claims as to the first document, but maintained that defendants were required to release the
second and third documents. After an in camera review of both disputed documents, the
Honorable Henry H. Kennedy, Jr. held that the work-product privilege did not apply but that the
documents were subject to the deliberative-process privilege. See Order of August 26, 2011;
McKinley, 789 F. Supp. at 87. In accordance with 5 U.S.C. § 552(b), Judge Kennedy ordered
FHFA to produce all factual material that was “reasonably segregable” from the protected
documents. See Order of August 26, 2011. Having held the parties’ cross-motions for summary
judgment in abeyance while FHFA conducted its segregability analysis, the Court now returns to
them.
II. LEGAL STANDARD
“Summary judgment is proper if there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.” McKinley v. Bd. of Governors of Fed.
Reserve Sys., 647 F.3d 331, 335 (D.C. Cir. 2011); accord Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48 (1986); FED . R. CIV . P. 56(a). In the FOIA context, the agency seeking to
avoid disclosure of documents must show that “each document that falls within the class
requested either has been produced, is unidentifiable, or is wholly exempt from the Act’s
2 inspection requirements.” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (quoting Nat’l
Cable Television Ass’n, Inc. v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)) (internal quotation
marks omitted). The exemptions “are to be narrowly construed,” FBI v. Abramson, 456 U.S.
615, 630 (1982), and the district court must conduct a de novo review of the record. 5 U.S.C. §
552(a)(4)(B). Courts must view the facts in the light most favorable to the requester and
“ascertain whether the agency has sustained its burden of demonstrating that the documents
requested . . . are exempt from disclosure.” Assassination Archives & Research Ctr. v. Cent.
Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (internal quotation marks omitted). If
courts find that any records were improperly withheld, they may order their production. 5 U.S.C.
§ 552(a)(4)(B).
III. ANALYSIS
The Court now turns to the motions at hand and examines whether any genuine issue of
material fact remains as to the release of the two disputed documents. In the parties’ joint status
report, FHFA maintains that, pursuant to its segregability analysis, it has released all material that
is not protected by the deliberative process privilege and therefore not exempt from disclosure
under FOIA. McKinley, who has not had access to the complete versions of either document,
has no way of countering this argument. Thus, he requests in the joint status report that Court
determine through an in camera review of the documents whether the material that FHFA has
disclosed includes all factual content that can be reasonably segregated from material protected
by the deliberative process privilege. See 5 U.S.C. § 552(b); Army Times Publ’g Co. v. Dep’t of
Air Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993).
“[T]he deliberative process privilege does not protect documents in their entirety; if the
3 government can segregate and disclose non-privileged factual information within a document, it
must.” See Loving v. Dep’t of Defense, 550 F.3d 32, 38 (D.C. Cir. 2008). However, factual
material that is “inextricably intertwined with exempted portions” of the documents needs not be
disclosed. Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 775 (D.C. Cir. 2002)
(citations omitted). To fulfill its obligations, an agency need not “commit significant time and
resources to the separation of disjointed words, phrases, or even sentences which taken separately
or together have minimal or no information content.” Mead Data Cent., Inc. v. U.S. Dep’t of Air
Force, 566 F.2d 242, 269 n.55 (D.C. Cir. 1977). Rather, it must separate out what is reasonably
segregable, see 5 U.S.C. § 552(b), when factors such as the burden of line-by-line segregation on
the agency and the usefuless of the disclosures to the requester are weighed against each other.
See id. at 261 (explaining that “if only ten percent of the material is non-exempt and it is
interspersed line-by-line throughout the document, an agency claim that it is not reasonably
segregable because the cost of line-by-line analysis would be high and the result would be an
essentially meaningless set of words and phrases[,] might be accepted”).
Here, FHFA has met its burden. The Court’s comparison of the released portions of the
document with the withheld material reveals that the agency has appropriately disclosed all
factual content that it could reasonably segregate and that is not “inextricably intertwined” with
exempted material. Johnson, 310 F.3d at 776. The withheld material is non-factual and contains
opinions, conjectures and other statements comprising the agency deliberations. Thus, FHFA is
not required to produce it. Applying the requisite, narrow construction of the applicable FOIA
exemption, see Abramson, 456 U.S. at 630, the Court after in camera review of the two
documents finds that all nonexempt material has either been disclosed to McKinley or is not
4 reasonably segregable. As a result, no genuine issue of material fact remains in this case, and
FHFA is entitled to summary judgment as a matter of law.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that FHFA’s motion for summary
judgment must be granted and McKinley’s motion for summary judgment denied. An
appropriate order accompanies this memorandum.
Barbara J. Rothstein United States District Judge