UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
PROTECT DEMOCRACY PROJECT, INC.,
Plaintiff,
v. Civil Action No. 17-792 (RDM) U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Protect Democracy Project, Inc. (“Protect Democracy”) brings this Freedom of
Information Act, 5 U.S.C. §552 (“FOIA”) action, seeking to compel the Department of Health
and Human Services to release records related to the discontinuation of advertising for
healthcare.gov, the federal health insurance marketplace, during the final weeks of the 2016-17
open enrollment period. The case is currently before the Court on the parties’ cross-motions for
summary judgment. See Dkt. 18; Dkt. 20. The issues raised by those motions have been
narrowed over the course of briefing, and the only remaining question before the Court is
whether the Department lawfully invoked FOIA Exemption 5—in particular, the deliberative
process and attorney-client privileges—to withhold the disputed records or portions of records.
For the reasons explained below, the Court concludes that it currently lacks sufficient
information to decide this question with respect to the deliberative process privilege, and that,
with one exception, in camera review of the disputed material is premature. With respect to the
Department’s assertion of attorney-client privilege, however, the Court concludes that the Department has met its burden. The Court will, accordingly, GRANT in part and DENY in part
both the Department’s motion for summary judgment and Protect Democracy’s cross-motion.
I. BACKGROUND
On February 15, 2017, Protect Democracy submitted a FOIA request to the Department
seeking the following records:
(1) Documents between and among employees of the Department of Health and Human Services (“HHS”) and/or the Centers for Medicare and Medicaid Services (“CMS”) “concerning the decision to discontinue advertising for healthcare.gov and/or enrollment in healthcare coverage;” (2) Documents between the HHS and/or CMS transition teams and the White House concerning the same; (3) Documents between and among employees of HHS and/or CMS “concerning the effect of the Trump Administration’s decision to discontinue the advertising detailed above on enrollment numbers;” (4) Documents between and among employees of the HHS Office of Public Affairs and/or CMS Offices of Communications “concerning the article published by Politico on January 26, 2017 entitled, ‘Trump White House Abruptly Halts Obamacare Ads;’” (5) Documents between and among employees of HHS and/or CMS “concerning the number of people who enrolled in healthcare coverage after President Trump took office;” and (6) Documents between HHS and/or CMS employees and the White House concerning the same. Dkt. 1 at 2–3 (Compl. ¶ 5). When the Department did not timely respond to the request, see 5
U.S.C. § 552(a)(6)(A)(i), Protect Democracy commenced this action, see Dkt. 1 (Compl.).
Subsequently, the Department conducted a search for responsive records and released 274 pages
of records to Protect Democracy, redacting certain portions pursuant to FOIA Exemption 5. Dkt.
18-1 at 7. This initial production consisted of 33 pages located in the files of the Office of the
Secretary—which the Department refers to as the “HHS production”—and 241 pages of records
2 located in the files of the Centers for Medicare and Medicaid Services (“CMS”)—which the
Department refers to as the “CMS production.” See Dkt. 20 at 11–12; Dkt. 25 at 6–7.
On December 15, 2017, the Department moved for summary judgment, Dkt. 18, and on
January 23, 2018, Protect Democracy filed its cross-motion for summary judgment, Dkt. 20. In
its cross-motion, Protect Democracy argued both that (1) the Department did not conduct an
adequate search, and (2) the Department unlawfully redacted numerous records pursuant to
FOIA Exemption 5. Dkt. 20 at 21. With respect to the redacted material, Protect Democracy
requested that the Court order the Department to re-produce the relevant records without the
improper redactions and to produce a more detailed Vaughn index (or, in the alternative, to
submit the unredacted versions of the relevant records to the Court for in camera review). Id. at
26.
After reviewing Protect Democracy’s opposition and cross-motion, the Department
requested an extension of time to file its final brief so that it could conduct further searches for
potentially responsive records, Dkt. 22, and the Court granted that request, Minute Order (Feb.
21, 2018). The Department then conducted supplemental searches and released an additional
256 pages of responsive records. Dkt. 27 at 12. At the same time, moreover, the Department
reconsidered some of its prior withholdings and released unredacted copies of a handful of
documents. Id. at 4. This effort had the desired effect of narrowing the scope of the dispute, and
Protect Democracy withdrew its challenge to the adequacy of the Department’s searches and its
challenge with respect to the records that the Department re-released without redactions. Id.
Protect Democracy, however, continues to challenge the Department’s invocation of Exemption
5, arguing that, with respect to some redactions, it is evident that the Department has misapplied
Exemption 5 and that, as to others, the Vaughn index and supporting declarations offer
3 insufficient detail to permit Protect Democracy or the Court to determine whether the redactions
were lawful. Id.
The sole remaining issue before the Court is whether the Department lawfully redacted
various records—in both its initial and supplemental productions—pursuant to Exemption 5.
II. LEGAL STANDARD
The Freedom of Information Act is premised on the notion that “an informed citizenry
[is] vital to the functioning of a democratic society . . . [and] needed to check against corruption
and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214, 242 (1978). FOIA embodies a “general philosophy of full agency disclosure,”
U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 494 (1994) (quoting Dep’t of Air
Force v. Rose, 425 U.S. 352, 360 (1976)), mandating that an agency disclose records on request
unless they fall within one of nine exemptions. See 5 U.S.C. § 552(b). “These exemptions are
‘explicitly made exclusive’ and must be ‘narrowly construed.’” Milner v. Dep’t of Navy, 562
U.S. 562, 565 (2011) (first quoting EPA v. Mink, 410 U.S. 73, 79 (1973), then quoting FBI v.
Abramson, 456 U.S. 615, 630 (1982)). The agency bears the burden of showing that a claimed
exemption applies. Fed. Open Mkt. Comm. of the Fed. Reserve Sys. v. Merrill, 443 U.S. 340,
352 (1979); Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008).
FOIA cases are typically resolved on motions for summary judgment under Federal Rule
of Civil Procedure 56. See Beltranena v. U.S. Dep’t of State, 821 F. Supp. 2d 167, 175 (D.D.C.
2011). To prevail on a summary judgment motion, the moving party must demonstrate that there
are no genuine issues of material fact and that she is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). An agency may meet this
burden by submitting “relatively detailed and non-conclusory” affidavits or declarations,
4 SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and an index of the
information withheld, Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973). In a FOIA case,
the Court may award summary judgment solely on the basis of information provided by an
agency in declarations when those 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); see also Gallant v. NLRB, 26 F.3d 168, 171 (D.C.
Cir. 1994).
A reviewing court should “respect the expertise of an agency” and not “overstep the
proper limits of the judicial role in FOIA review.” Hayden v. Nat’l Sec. Agency/Cent. Sec.
Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979). “[E]xemptions from disclosure,” however, “must
be narrowly construed . . . and conclusory and generalized allegations of exemptions are
unacceptable.” Morley v. CIA, 508 F.3d 1108, 1114–15 (D.C. Cir. 2007) (citation and internal
quotation marks omitted). The Court reviews the agency’s decision de novo. See 5 U.S.C. §
552(a)(4)(B).
III. ANALYSIS
Exemption 5 protects “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). The exemption shields “those documents . . . normally privileged in the civil
discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Courts have,
accordingly, looked to the three traditional civil discovery privileges in evaluating whether an
agency has lawfully withheld agency records pursuant to Exemption 5: “(1) the attorney work-
5 product privilege; (2) the deliberative process privilege; and (3) the attorney-client
privilege.” Wright v. U.S. Dep’t of Justice, 121 F. Supp. 3d 171, 184 (D.D.C. 2015).
To justify its redactions, the Department relies on the deliberative process and attorney-
client privileges. See Dkt. 18 at 10–19. Protect Democracy, in turn, contends that it is evident
from the available information that some of the redactions at issue do not qualify for either
privilege and that, as to other redactions, the Department’s Vaughn index and supporting
declarations fail to provide sufficient information to support the redactions. See Dkt. 20 at 21–
25.
A. Deliberative Process Privilege
The deliberative process privilege protects “documents ‘reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.’” Sears, Roebuck & Co., 421 U.S. at 150 (quoting Carl
Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)). The “privilege
rests on the obvious realization that officials will not communicate candidly among themselves if
each remark is a potential item of discovery and front page news, and its object is to enhance ‘the
quality of agency decisions,’ . . . by protecting open and frank discussion among those who make
them within the Government.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 8–9 (2001) (citations omitted).
“To qualify for withholding under Exemption 5’s [deliberative process] privilege,
information must be both ‘predecisional’ and ‘deliberative.’” Petroleum Info. Corp. v. U.S.
Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992); see also Nat’l Sec. Archive v. CIA, 752
F.3d 460, 463 (D.C. Cir. 2014); Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006).
A record “is predecisional if it was ‘prepared in order to assist an agency decisionmaker in
arriving at his decision,’ rather than to support a decision already made,” and it is “deliberative if 6 it ‘reflects the give-and-take of the consultative process.’” Petroleum Info. Corp., 976 F.2d at
1434 (citations omitted). As with other FOIA exemptions, the agency bears the burden of
showing that it has properly invoked the privilege. See, e.g., Prop. of the People, Inc. v. Office of
Mgmt. & Budget, 330 F. Supp. 3d 373, 380 (D.D.C. 2018).
Protect Democracy contends that the Department has relied on the deliberative process
privilege “far too broadly” and, in any event, has failed to carry its burden of demonstrating that
it has lawfully invoked the privilege. Dkt. 20 at 21. Without going document-by-document,
Protect Democracy points to examples of inconsistent redactions between the HHS and the CMS
productions and examples of redactions of what appear to be factual or post-deliberative
material. Id. at 22–24. More generally, it argues that the Department’s Vaughn indices and
declarations fail to provide descriptions of the withheld material that are adequate to permit it or
the Court to determine whether the privilege is applicable. Id. at 23–24; see also Dkt. 27 at 5–
11. The Department, in turn, responds that inconsistent redactions are not fatal because
“Exemption 5 withholdings are discretionary by nature,” Dkt. 25 at 20; that any factual material
was properly redacted as “inextricably intertwined with the deliberative sections of documents,”
id.; that there is nothing wrong with formulaic Vaughn index entries, particularly “when a FOIA
request expressly seeks communications that are part of one ongoing deliberative process over
the course of a short period of time,” id. at 21; and that the post-deliberative material identified
by Protect Democracy has now been produced, id. at 22.
Protect Democracy’s challenge to the adequacy of the Department’s Vaughn indices is
sound and provides sufficient basis to deny the Department’s motion for summary judgment with
respect to the deliberative process privilege. Because the Court cannot determine, on the current
record, whether the Department has lawfully invoked the deliberative process privilege, the
7 Court must also deny Protect Democracy’s cross-motion for summary judgment. Finally, with
one exception detailed below, the Court will deny—at least for now—Protect Democracy’s
alternative request that the Court conduct an in camera review of the documents. The Court will,
instead, order that the Department supplement its Vaughn indices and/or declarations to address
the concerns discussed below.
1. Adequacy of the Department’s Vaughn Indices
When evaluating assertions of the deliberative process privilege, courts “must give
considerable deference to the agency’s explanation of its decisional process, due to the agency’s
expertise in determining ‘what confidentiality is needed to prevent injury to the quality of agency
decisions.’” Pfeiffer v. CIA, 721 F. Supp. 337, 340 (D.D.C. 1989) (citation omitted). Still, to
meet its burden, the agency must offer “a relatively detailed justification” for assertion of the
privilege. Elec. Privacy Info. Ctr. v. U.S. Drug Enf’t Agency, 192 F. Supp. 3d 92, 103 (D.D.C.
2016) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir.
1977)). The agency “cannot justify its withholdings on the basis of summary statements that
merely reiterate legal standards or offer ‘far-ranging category definitions for information.’”
Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 955 F. Supp. 2d 4, 13
(D.D.C. 2013) (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210, 221 (D.C. Cir. 1987)).
“The need to describe each withheld document when Exemption 5 is at issue is
particularly acute because ‘the deliberative process privilege is so dependent upon the individual
document and the role it plays in the administrative process.’” Animal Legal Def. Fund, Inc. v.
U.S. Dep’t of Air Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999) (quoting Coastal States v. U.S.
Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980)). Under the deliberative process privilege,
unlike other exemptions where the agency declaration and Vaughn index may be read in conjunction to provide an adequate justification for application of an exemption to a class or category of records, to sustain its burden of showing that 8 records were properly withheld under Exemption 5, an agency must provide in its declaration and Vaughn index precisely tailored explanations for each withheld record at issue.
Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 188 (D.D.C. 2013). At the very least, an
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.” Id. at 189 (citing Senate of P.R. v. U.S. Dep’t of Justice, 823
F.2d 574, 585–86 (D.C. Cir. 1987); Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257–58 (D.C.
Cir. 1982); Coastal States, 617 F.2d at 867–68). Here, at least in many instances, the
Department’s Vaughn indices and declarations lack detail sufficient to satisfy this burden.
First, although the Department does note that the deliberations at issue dealt with the
subject of the FOIA request—i.e., the Department’s discontinuation of ACA advertisements—its
Vaughn indices and declarations are otherwise devoid of any detail about the nature of relevant
deliberations. The declarations submitted in support of the Exemption 5 withholdings from the
HHS initial and supplemental productions, for example, merely note that “HHS invoked this
privilege to protect deliberative recommendations concerning the discontinuation of certain
advertisements for healthcare.gov.” Dkt. 18-2 at 7 (Marquis Decl. ¶ 17); Dkt. 25-1 at 8 (Bell
Decl. ¶ 19). The Vaugh index relating to the initial HHS production is similarly anemic. With
one exception, it merely repeats the same uninformative description for each withholding:
“redacted material consists of pre-decisional, deliberative recommendations concerning the
discontinuation of certain advertisements for healthcare.gov.” See Dkt. 18-2 at 110–13 (Ex. 10).
Many of the Vaughn descriptions for the Department’s other productions—the CMS initial
production, the CMS supplemental production, and the HHS supplemental production—contain
9 this same description. See Dkt. 18-3 at 11–23 (Ex. 1); Dkt. 25-1 at 245–55 (Ex. 3); Dkt. 25-2 at
41–42 (Ex. 3). Far from “establish[ing] ‘what deliberative process is involved, and the role
played by the documents in issue in the course of that process,’” Senate of P.R., 823 F.2d at 585–
86 (citation omitted), these meager descriptions give this Court no means by which to assess
whether the privilege applies. They “tell[] the court little,” if anything, “about the deliberative
nature of the information contained in the document in question.” Judicial Watch, 449 F.3d at
152.
A comparison to some of the Department’s other Vaughn descriptions, which provide
more detail, illustrates this deficiency.1 The Department, for example, included Vaughn
descriptions explaining that some of the redacted material contains recommendations (1)
concerning “how to respond to questions from the press, along with draft press release and
talking points,” Dkt. 25-1 at 250 (Ex. 3); (2) concerning “the agency’s response to a letter from
the Governor of Minnesota,” id. at 255 (Ex. 3); and (3) reflecting “a draft of an instruction to a
government contractor,” Dkt. 18-2 at 111 (Ex. 10). These examples show that the Department is
able, contrary to its assertion, to “identify[] the specific proposals and recommendations under
discussion” without “reveal[ing] the information that the exemption is designed to protect.” Dkt.
25 at 21.
The Department argues that its use of identical descriptions across entries does not mean
that those descriptions are inadequate. Dkt. 25 at 21. That is correct, as far as it goes. Courts in
this circuit “permit the satisfaction of the government’s burden of proof . . . through generic,
1 Protect Democracy seems to concede that some of the Department’s Vaughn index entries are sufficient, making it difficult to discern which documents remain at issue. See, e.g., Dkt. 27 at 8. If the Department renews its motion and Protect Democracy files a second cross-motion, Protect Democracy should identify with specificity the discrete withholdings or redactions that it is contesting.
10 categorical showings” in appropriate circumstances. Maydak v. Dep’t of Justice, 218 F.3d 760,
766 (D.C. Cir. 2000). What is insufficient, however, is boilerplate language that might be used
in any Vaughn index in any FOIA case. Because such boilerplate descriptions are unmoored
from the specific rationale for, or the content of, the relevant redactions, they fail to provide the
Court with “a reasonable basis to evaluate the claim of privilege.” Gallant v. NLRB, 26 F.3d at
173 (internal quotation omitted). In other words, the problem is not that each Vaughn entry is
identical; the problem is that the entries lack sufficient detail.
Second, and for much the same reason, the Department fails to make an adequate
showing regarding the function and significance of the withheld material to any agency
deliberations. As noted above, in both the initial and supplemental HHS productions, the
Department “invoked th[e] privilege to protect deliberative recommendations concerning the
discontinuation of certain advertisements for healthcare.gov.” Dkt. 18-2 at 7 (Marquis Decl. ¶
17); Dkt. 25-1 at 8 (Bell Decl. ¶ 19). The Vaughn indices, with minor exception, simply repeat
this conclusory assertion. See generally Dkt. 18-2 at 110–13 (Ex. 10); Dkt. 25-1 at 245–55 (Ex.
3). But that description says nothing of the role the documents played in the deliberative
process.
In this respect, the Department’s descriptions of the materials withheld from the CMS
productions fare better, although they also lack important detail. Most of the entries in the
Vaughn index mirror the uninformative entries provided for the HHS productions. See generally
Dkt. 18-3 at 11–23 (Ex. 1); Dkt. 25-2 at 41–42 (Ex. 3). The relevant declarations, however, offer
additional detail, noting, for example, that some of the redactions were made because the
relevant documents were drafts, subject to further review, edit, and modification, and others were
made because the records were emails reflecting “back and forth discussions between federal
11 employees providing comment, opinion, and recommendations on various subject matter,” Dkt.
18-3 at 8 (Gilmore Decl. ¶ 19); see also Dkt. 25-2 at 6 (Second Gilmore Decl. ¶ 17). But even
this detail is inadequate, because it is not tied to specific records or redactions and because it
provides little insight regarding the nature of the withheld material. Knowing that the redactions
include back and forth discussions providing recommendations on various topics or show the
creation and review of drafts is helpful, but is not enough to permit the Court to determine
whether each redaction at issue is consistent with FOIA.
Finally, in order to show that redactions reflect recommendations, rather than agency
decisions, the agency must provide information relating to “the positions in the chain of
command of the parties to the documents.” Arthur Andersen, 679 F.2d at 258. The vast majority
of the Department’s Vaughn index entries, however, simply note that the withheld materials were
“[e]mail chain[s] . . . between [Department] officials.” See generally Dkt. 18-2 at 110–13 (Ex.
10); Dkt. 18-3 at 11–23 (Ex. 1); Dkt. 25-1 at 245–55 (Ex. 3); Dkt. 25-2 at 41–42 (Ex. 3).
Moreover, although the redacted records do disclose the names and offices of the senders and
recipients, the Department never explains who these individuals are, nor, more importantly, what
role they played in the relevant discussions. Without that information—even in summary
form—the Court cannot “discern whether these communications ‘reflect the give and take of the
deliberative process.’” Nat’l Sec. Counselors, 960 F. Supp. 2d at 191 (quoting Pub. Citizen v.
Office of Mgmt. & Budget, 598 F.3d 965, 976 (D.C. Cir. 2010)).
Having concluded that the Department’s submissions fail to offer sufficient detail to
permit the Court to evaluate whether the redactions were lawful, the Court must decide what this
means for the parties’ respective cross-motions for summary judgment. For one thing, it
certainly means that the Court must deny the Department’s motion. Although perhaps less
12 obvious, the same conclusion applies to Protect Democracy’s cross-motion. The Court has not
concluded that Exemption 5 is inapplicable or that the redacted material is not deliberative; it has
merely held that the Department “has failed to supply [the Court] with . . . the minimal
information necessary to make [that] determination.” Coastal States Gas Corp., 617 F. 2d at
861. Because the Department’s submissions give “the court no way to determine whether the
withheld information is of a deliberative nature,” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 152
(D.C. Cir. 2006), the Court cannot reach Protect Democracy’s other arguments—such as its
contention that some of the material at issue appears to be post-decisional or factual—on the
present record.2 Accordingly, under these circumstances, the proper course is to deny Protect
Democracy’s cross-motion as well.
2. Request for In Camera Inspection
At the current stage of proceedings, the Court will—with one exception—also decline
Protect Democracy’s alternative request that the Court conduct an in camera review of the
challenged redactions on a document-by-document basis to determine whether the redacted
material is, in fact, deliberative. Where, as here, a court finds that an “agency [has] fail[ed] to
provide a sufficiently detailed explanation to enable the . . . court to make a de novo
2 Protect Democracy objects, for example, to the Department’s decision to withhold portions of “a list of Open Enrollment activities planned for the next two weeks,” which was apparently developed during the closing days of the Obama administration. Dkt. 25-1 at 192–93 (Ex. 1); see also Dkt. 27 at 10–11. According to Protect Democracy, “[t]he Trump administration’s decision to revisit this plan does not retroactively make it deliberative.” Dkt. 27 at 10–11. At least on the present record, it is unclear whether that assertion is correct. The deliberative process privilege applies to “agency” deliberations, not to deliberations specific to a particular administration. The email at issue, moreover, was sent on January 23, 2017, after the change in administrations occurred. It is entirely possible that, as of that date, no final decision had been made to go forward with the planned activities and that, even if others in the Department had previously decided to go forward, that decision was not final and remained subject to deliberations.
13 determination of the agency’s claims of exemption, the . . . court . . . has several options,
including inspecting the documents in camera, requesting further affidavits, or allowing the
plaintiff discovery.” Spirko v. U.S. Postal Serv., 147 F.3d 992, 997 (D.C. Cir. 1998). “[A]
district court should not undertake in camera review of withheld documents,” however, “as a
substitute for requiring an agency’s explanation of its claimed exemptions.” Id. Mindful of the
Department’s expertise and “the proper limits of the judicial role in FOIA review,” Hayden, 608
F.2d at 1388, the Court will permit the Department, in the first instance, to offer a more detailed
description of its bases for concluding that each of the redactions at issue was necessary to
protect the deliberative process.
The Court reaches a different conclusion, however, with respect to one document. The
unredacted portion of that document asserts:
Here is what we are providing on the record from HHS spokesman:
“We aren’t going to continue spending millions of taxpayers’ dollars promoting a failed government program. Once an assessment was made, we pulled back the most expensive and least efficient part of this massive ad campaign which was set to run over the weekend. Those cost savings will be returned to the U.S. Treasury.”
Here is what we are providing on background:
[redacted]
Dkt. 25-1 at 96 (Ex. 1). The Vaughn index reports that the redacted material consists of “draft
talking points.” Id. at 250 (Ex. 3). The accompanying declaration provides no additional
information with respect to this redaction.
Protect Democracy is, understandably, perplexed by the Department’s invocation of the
deliberative process privilege here. It argues that “[t]he context is clear that for both sets of
talking points”—the on the record talking points, and the “background” talking points—“the
14 decision had already been made as to what to provide to the press.” Dkt. 27 at 10. The fact that
the second set of talking points were provided on “background,” Protect Democracy further
argues, has no bearing on whether that material was deliberative. Id. The deliberative process
privilege, after all, applies only to “communications that are pre-decisional[,] deliberative,” Nat’l
Sec. Archive, 752 F.3d at 463, and non-public, and it therefore provides no protection for
information that an agency has decided to disseminate—and appears to have disseminated—
whether on the record or on background.
It may be that the Department is correct that the first half of the email reflects a final
agency decision about its (on the record) position, while the second half contains draft (off the
record) comments, subject to further review, consideration, or refinement. The Court cannot
make that determination, however, on the present record, and Protect Democracy has made at
least a prima facie showing that the redacted material was in final form. The Court will,
accordingly, direct that the Department submit an unredacted version of the email to the Court
for ex parte, in camera review.
B. Attorney-Client Privilege
Exemption 5 also incorporates the attorney-client privilege, which protects “confidential
communications between an attorney and his client relating to a legal matter for which the client
has sought professional advice.” Mead Data, 566 F.2d at 252. In FOIA cases, the agency is
typically the “client” and the agency’s lawyers are typically the “attorneys” for the purposes
of attorney-client privilege. See In re Lindsey, 148 F.3d 1100, 1105 (D.C. Cir. 1998)
(citing Coastal States, 617 F.2d at 863). “The attorney-client privilege protects confidential
communications from clients to their attorneys made for the purpose of securing legal advice,”
and “communications from attorneys to their clients if the communications ‘rest on confidential
15 information obtained from the client.’” Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997)
(quoting In re Sealed Case, 737 F.2d 94, 98–99 (D.C. Cir. 1984)).
The Department withheld or redacted only a handful of records based on an assertion of
attorney-client privilege. Protect Democracy, nonetheless, argues that the Department “may . . .
have over-applied” the attorney-client privilege. Dkt. 20 at 24. In particular, Protect Democracy
objects to the Department’s invocation of the attorney-client privilege with respect to “a
communication from non-lawyer Mark Weber to four other non-lawyers . . . and three block
redactions of text that the Vaughn index describes as attorney-client communications without
reference to the communication containing legal advice.” Dkt. 27 at 9–10.
The redacted versions of the first two of these documents, Dkt. 18-2 at 77 (Ex. 9); id. at
79 (Ex. 9), merely show that Mark Weber, who was the Acting Assistant Secretary for Public
Affairs at the relevant time, Dkt. 18-2 at 6 (Marquis Decl. ¶ 14), forwarded two emails to
Michael Marquis, who is the FOIA officer for the Office of the Secretary, id. at 1 (Marquis Decl.
¶ 1), and who, presumably, received the emails for purposes of responding to Protect
Democracy’s FOIA request. The underlying emails, including address information, are redacted
in their entirety. See Dkt. 18-2 at 77 (Ex. 9); id. at 79 (Ex. 9). The Vaughn index, moreover,
does not identify who sent or received the redacted emails, and it merely asserts that the
“redacted material discloses communications between [the Office of General Counsel (“OGC”)]
and CMS concerning the possibility of discontinuing certain advertisements for healthcare.gov.”
Dkt. 18-2 at 110–11 (Ex. 10). The accompanying declaration, in turn, merely repeats this
description. Id. at 8 (Marquis Decl. ¶ 19).
The second two documents, in contrast, reveal the underlying email header. The first of
these is an email from Mark Weber to two Department employees, with two other employees
16 listed on the cc line. Dkt. 18-2 at 99 (Ex. 9). None of these employees is identified as associated
with the OGC, and the only substance that is revealed simply states: “Jeff – when you get a
chance give me a call.” Id. (Ex. 9). The second is an email from Weber to Michael Goulding,
whose email address is associated with the OGC. Id. at 101 (Ex. 9). The only disclosed portion
of this email says: “Contact info . . . Thanks.” Id. (Ex. 9). The redacted portion appears below
the signature line, suggesting that it was copied or forwarded from another email. Id. (Ex. 9).
The Vaughn index and supporting declaration, once again, merely assert that the redacted
materials disclose “communications between OGC and CMS concerning the possibility of
discontinuing certain advertisements for healthcare.gov.” Id. at 112 (Ex. 10); id. at 8 (Marquis
Decl. ¶ 19).
Recognizing that this information was too limited to support an assertion of attorney-
client privilege, the Department filed a supplemental declaration along with its reply brief and
opposition to Protect Democracy’s cross-motion. Dkt. 25-1 (Bell Decl.). That declaration attests
as follows:
HHS invoked [the attorney-client] privilege to protect confidential communications between agency officials and counsel with the Office of General Counsel (OGC) for purposes of obtaining legal advice, including where the contents of those communications with counsel were subsequently disseminated and discussed among agency officials, concerning any legal ramifications related to the possibility of discontinuing certain advertisements for healthcare.gov. In this declaration, I am clarifying that the attorney-client privileged information was withheld from the September 2017 release (previously described in the declaration of Michael S. Marquis submitted in this matter) on this basis: confidential communications between OGC and CMS relating to OGC’s professional legal advice on the discontinuation of advertisements.
Dkt. 25-1 at 8–9 (Bell Decl. ¶ 20).
With this clarification, the Court is persuaded that the Department lawfully withheld
redacted portions of the four documents based on Exemption 5 and the attorney-client privilege.
17 Although the Department has not, with one exception, identified the specific lawyer who
provided the relevant legal advice, it has attested that the Department’s Office of General
Counsel provided legal advice to CMS. It has attested that the redacted communications were
“confidential” and that they were either for the purpose “of obtaining legal advice” or to
disseminate and discuss that advice with other agency officials. Dkt. 25-1 at 8–9 (Bell Decl.
¶ 20). And it has explained that the advice at issue related to “any legal ramifications related to .
. . discontinuing [the] advertisements for healthcare.gov.” Id. In short, the Department has
carried its burden on showing that the communications were between a law office—the Office of
the General Counsel—and a client—CMS (or was passed along to other agency officials); that
those communications were “confidential;” and that they were either for the purpose of securing
or disseminating legal advice. Nothing more is required to maintain the privilege. In re Sealed
Case, 737 F.2d at 98–99.
Protect Democracy, moreover, does not seem to dispute that an attestation by a
knowledgeable official that “the withheld communications contained ‘confidential
communications between OGC and CMS concerning legal advice related to the possibility of
discontinuing certain advertisements for healthcare.gov’” would suffice. Dkt. 27 at 9 (emphasis
omitted) (quoting Dkt. 25-2 at 42 (Ex. 3)). Protect Democracy merely contends that the
Department failed to make such a showing with respect to its initial production. Dkt. 27 at 9–10.
For the reasons explained above, the Court disagrees and, accordingly, concludes that the
Department has carried its burden with respect to the attorney-client privilege.
18 CONCLUSION
For the foregoing reasons, the Department’s motion for summary judgment, Dkt. 18, is
hereby GRANTED in part and DENIED in part. Plaintiff’s cross-motion for summary
judgment, Dkt. 20, is hereby GRANTED in part and DENIED in part.
SO ORDERED.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: February 27, 2019