Opinion
Civil No. 3:18-cv-00440 (AVC)
2020-05-29
REPRODUCTIVE RIGHTS AND JUSTICE PROJECT, plaintiff, v. DEPARTMENT OF HHS, defendant.
Cortelyou C. Kenney, Yale Law School, New Haven, CT, Priscilla Joyce Smith, Yale Law School Rrjp Clinic, Brooklyn, NY, for plaintiff. Natalie Nicole Elicker, DOJ-USAO, New Haven, CT, for defendant.
Cortelyou C. Kenney, Yale Law School, New Haven, CT, Priscilla Joyce Smith, Yale Law School Rrjp Clinic, Brooklyn, NY, for plaintiff.
Natalie Nicole Elicker, DOJ-USAO, New Haven, CT, for defendant.
RULING ON MOTIONS FOR SUMMARY JUDGMENT
Alfred V. Covello, United States District Judge
This is a Freedom of Information Act (hereinafter "FOIA") case in which the plaintiff, Reproductive Rights and Justice Project (hereinafter "RRJP"), claims that the defendant, the Department of Health and Human Services (hereinafter "the HHS"), unlawfully failed to disclose certain documents in response to RRJP's FOIA request. The parties have filed cross motions for summary judgment. For the reasons that follow, the parties’ motions are granted in part and denied in part.
FACTS
Examination of the pleadings, affidavits, 56(a)(1) statements, depositions and exhibits accompanying the motions for summary judgment, and the responses thereto, discloses the following, undisputed material facts:
On October 25, 2017, RRJP submitted a FOIA request to the HHS. That request sought the following records:
• Any emails that include the following email domains sent since January 20, 2017:
- @aclj.org
- @adflegal.org
- @afa.net
- @all.org
- @aul.org
- @cwfa.org
- @ffcoalition.com
- @focusonthefamily.com and @fotf.org
- @frc.org
- @heritage.org
- @liveaction.org
- @nrlc.org
- @operationrecsue.org
- @operationsaveamerica.org
- @pop.org
- @prolifeaction.org
- @sba-list.org
- @studentsforlife.org
- @weascend.org
• Any communications between HHS personnel and persons associated with any of the following organizations sent since January 20, 2017:
- Alliance Defending Freedom
- American Center for Law & Justice
- American Family Association
- American Life League
- Americans United for Life
- Ascend (formerly, National Abstinence Education Association)
- Concerned Women for America
- Faith and Freedom Coalition
- Family Research Council
- Focus on the Family
- Live Action
- National Right to Life Committee
- Operation Rescue
- Operation Save America
- Population Research Institute
- Pro-Life Action League
- Susan B. Anthony List
- Students for Life
- The Heritage Foundation
• Any emails sent to, from, between, or among any external email domains since January 20, 2017 that mention "Planned Parenthood."
On October 25, 2017, the HHS acknowledged receipt of the FOIA request.
On November 27, 2017, after twenty working days with no response, RRJP inquired as to the status of the request.
On December 4, 2017, the HHS indicated in a letter sent via email that it was referring the request to the HHS program support center.
RRJP contacted the program support center via voicemail and electronic mail. On December 4 and 5, 2017, RRJP exchanged phone calls with the HHS FOIA government information specialist, Glenn Voelker, who stated that the agency was working on the request and asked RRJP to narrow the third request to exclude grant-related correspondence.
On December 5, 2017, RRJP sent a narrowed construction of the third request, as requested by Mr. Voelker.
After another month, on January 2, 2018, and again on January 9, 2018, RRJP inquired as to the status of the request.
On January 9, 2018, Mr. Voelker stated by email that it would "be at least a month before your case is started."
On January 9, 2018, supervisory government information specialist Laura Magere stated by email that she "estimated that all backlogged initial FOIA requests will be completed by the end of March 2018."
On March 3, 2018, after eighty-eight working days with no production pursuant to or response to RRJP's FOIA request, RRJP initiated this lawsuit.
On August 19, 2018, the HHS stated that it expected to complete production of the requested documents by October 1, 2018.
On November 13, 2018, as the HHS requested, RRJP agreed to limit its request in order to exclude "news blasts" and "marketing emails" that would have made production more onerous for the HHS.
On November 21, the HHS delayed the final completed production date to February 15, 2019.
On February 4, 2019, the HHS delayed the final completed production date to March 14, 2019.
The HHS then requested, and RRJP consented to, an additional delay of the production deadline, to April 13, 2019.
On April 15, 2019, the HHS completed production, exclusive of withholdings, and requested an additional extension of time to produce a search declaration and Vaughn Index until June 3, 2019.
On June 3, 2019, the HHS produced a search declaration and Vaughn index indicating a total of 112 withholdings, not including withholdings of non-public telephone numbers, home addresses, and email addresses.
On June 26, 2019, RRJP agreed not to contest any withholdings except those pursuant to FOIA exemption five.
On July 5, 2019, the HHS provided RRJP with an updated Vaughn Index, including only withholdings pursuant to exemption five.
On July 10, 2019, RRJP agreed to waive its objections to all of the claimed exemption five withholdings, except for those that:
• Included individuals outside the agency;
• Discussed how to present agency policy to the public;
• Were inadequately described in the Vaugh Index, and;
• Failed to identify any "decision" to which communications were pre-decisional.
On July 19, 2019, upon the HHS's representation that it anticipated disclosing additional materials, RRJP consented to an additional extension of filing deadlines to August 7, 2019.
On July 22, 2019, upon the HHS's representation that they anticipated disclosing additional materials, RRJP consented to an additional extension of filing deadlines until August 23, 2019.
On August 7, 2019, the HHS produced four originally-withheld documents, two in full and two in part, and a final Vaughn Index including the remaining withheld documents.
On August 19, 2019, RRJP agreed not to contest the withholding of one additional document. The HHS produced a final Vaughn Index describing the twenty-one remaining contested exhibits.
The contested documents are as follows:
RRJP states that the "[d]efendants continue to withhold" these twenty one-documents. The HHS admits that the contested documents are the 21 listed in RRJP's statement of fact, but denies RRJP's statement "to the extent plaintiff alleges that defendant ‘withheld’ in full any of the contested documents, and/or ‘continue[s] to withhold’ in full any of the contested documents." HHS states it "withheld in substantial part only one record." The HHS notes that "[a]s plaintiff's exhibits and also the descriptions below demonstrate, defendant has redacted limited information from twenty documents and released segregable information, and withheld the bulk of only one record."
a. An email regarding a letter from seven "national pro-life groups," including the Susan B. Anthony List, claiming that its contents constitute "predecisional and deliberative discussion regarding letter from pro life groups. Agency staff must be able to freely discuss how to utilize agency resources before they are utilized. Here, the decision is how to communicate with non-governmental organizations."
b. Six responsive documents concerning participation of the Secretary in various events, claiming that "the decision of the Secretary whether and/or how to participate in an event is a decision of how to use agency resources and is therefore a substantive decision." These six documents include:
i. An email with a redacted subject line apparently discussing an invitation for the Secretary to "speak to some pro-lifers," issued by the Alliance Defending Freedom and Focus on the Family.
ii. An email apparently regarding a phone call with an Assistant Director at the Heritage Foundation, discussing an invitation to an event hosted by the Heritage Foundation.
iii. Three sets of emails discussing remarks by the Secretary to the Heritage Foundation.
iv. An email discussing an event called "#sockit2PP" hosted by Students For Life.
c. Ten responsive documents, claiming: "The emails discuss how HHS should respond to outside inquiries about a media report, or an inquiry from a reporter, which are decisions about the substance of the agency's messaging." These ten documents include:
i. One email "reacting to" a previous email from the Susan B. Anthony List, inquiring about a news article discussing religious objections to birth control.
ii. Seven emails discussing requests by reporters for comment.
iii. One email regarding "Heritage [Foundation] Expert on HHS Rule Regarding Short-Term Health Plans," discussing "media strategy."
iv. One email about a reporter's inquiry about the date of executive action regarding the Title X program, alleging that the "author's response is guiding the recipient's response to the inquiry." Two responsive documents, both concerning a "live stream" event with the subject line "RE:9/27 press release and scheduling a presenter meeting," claiming: "Pre-decisional and deliberative discussions regarding upcoming event. The content of the event changed after this email was sent; agency staff must be able to freely discuss what to include in an event before it occurs."
e. Two responsive documents, both email chains, claiming they contain "Pre-decisional and deliberative information used to prepare for upcoming congressional hearing. The decision of how to prepare for congressional testimony is a substantive decision and requires free deliberation." Both content and the recipient's identity are withheld.
STANDARD
"The court shall grant summary judgment if the movant shows 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).
Summary judgment is appropriate if, after discovery, the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view all inferences and ambiguities "in a light most favorable to the nonmoving party." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). The nonmoving party cannot, however, " ‘rely on conclusory allegations or unsubstantiated speculation’ but ‘must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.’ " Robinson v. Concentra Health Servs., 781 F.3d 42, 34 (2d Cir. 2015) (citation omitted).
In deciding a motion for summary judgment, the court may not "make credibility determinations or weigh the evidence.... [because] [c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Proctor v. LeClaire, 846 F.3d 597, 607–08 (2d Cir. 2017) (internal quotation marks and citations omitted). The moving party "bears the burden of ‘demonstrat[ing] the absence of a genuine issue of material fact.’ " Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017) (quoting Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 ).
"A dispute regarding a material fact is genuine ‘if evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). " ‘Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.’ " Id. (quoting Bryant, 923 F.2d at 982 ).
"Summary judgment is the procedural vehicle by which most FOIA actions are resolved." N.Y. Times Co. v. Dep't of Def., 499 F. Supp. 2d 501, 509 (S.D.N.Y. 2007) (citation omitted). "When an agency withholds material under a FOIA Exemption, ‘[t]he agency asserting the exemption bears the burden of proof, and all doubts as to the applicability of the exemption must be resolved in favor of disclosure.’ " Pinnicchia v. U.S. Department of Veterans Affairs, Civil No. 3:17cv2139, 2019 WL 1173017at *3 (D. Conn. March 13, 2019) (quoting N.Y. Times v. U.S. Dep't of Justice, 756 F.3d 100, 112 (2d Cir. 2014) (citing Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 69 (2d Cir. 2009) )). "[T]he defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to FOIA." Carney v. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994). The agency may cite "[a]ffidavits or declarations supplying facts indicating that the agency has conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption ...." Id.
"As with all motions for summary judgment, summary judgment in a FOIA case is appropriate only when the ... materials submitted to the Court show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Serv. Women's Action Network v. Dep't of Def., 888 F. Supp. 2d 231, 240 (D. Conn. 2012) (quotation marks omitted).
"Affidavits submitted by an agency are ‘accorded a presumption of good faith ....’ " Id. (citing Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) ). The court has recognized that "discovery relating to the agency's search and the exemptions it claims for withholding records generally is unnecessary if the agency's submissions are adequate on their face. When this is the case, the district court may ‘forgo discovery and award summary judgment on the basis of affidavits.’ " Id. (citing Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980) ; accord Maynard v. CIA, 986 F.2d 547, 556 n. 8 (1st Cir. 1993) ; Simmons v. United States Dep't of Justice, 796 F.2d 709, 711–12 (4th Cir. 1986) ). The affidavits, however, must be "reasonably detailed." Halpern v. F.B.I., 181 F.3d 279, 286 (2d Cir. 1999).
DISCUSSION
RRJP argues that the HHS "continues to withhold documents on the basis of meritless and under-explained claims of deliberative process privilege pursuant to FOIA Exemption Five, 5 U.S.C. § 552(b)(5)." Specifically, RRJP states that it made its FOIA request "seeking communications between government staff and a number of organizations and groups that oppose evidence-based reproductive and sexual healthcare." It was concerned that "assaults on public health, and in particular on access to birth control for the most vulnerable women, may be the result of improper influence by ideological groups rather than considered agency expertise." RRJP states that the HHS has "repeatedly failed to meet its obligations to timely respond" to RRJP's request. RRJP states that it has, over time, narrowed its requests and objections and all that remains are
• One email discussing what to say to anti-abortion groups;
• Six sets of emails discussing the participation of HHS officials in organizations’ events;
• Ten sets of emails discussing HHS's plans for presenting its policies to the media;
• Two sets of emails discussing an "upcoming event;" and
• Two sets of emails discussing how to present agency policy to Congress.
RRJP argues that FOIA exemption five does not protect the documents at issue from disclosure.
The HHS argues that RRJP "cannot point to any responsive record in which defendant's use of Exemption 5 is unlawful," and, therefore, the court should render judgment in its favor. The HHS points out that it has produced "roughly 9000 pages" and that "[t]he parties’ pre-motion negotiations have been largely amicable." The HHS maintains that exemption five applies to all of the redactions at issue and that "for each of the twenty-one records at issue, there is a reasonably detailed declaration and Vaughn index that identifies the information at issue and the bases for the exemptions claimed."
FOIA, 5 U.S.C. § 552(3), requires government agencies to disclose agency records upon a request for records which "(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed." 5 U.S.C. § 552(3)(A). In response to a request for records, "an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency's automated information system." 5 U.S.C. § 552(3)(C). An agency must disclose its records, except for those that are subject to one of the nine statutory exemptions from disclosure. 5 U.S.C. §§ 552(b) - (c).
Whether the defendant agency's search was sufficient ‘is judged by a standard of reasonableness. See Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999)." Peeler v. U.S. Dep't of Justice, No. 3:11-cv-1370 (RNC), 2013 WL 5448515, at *3 (D. Conn. Sept. 30, 2013).
"FOIA was enacted to promote honest and open government and to assure the existence of an informed citizenry to hold the governors accountable to the governed." Grand Cent. P'ship., Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (internal quotation marks and citation omitted). In general, FOIA embodies "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Dep't of Air Force v. Rose, 425 U.S. 352, 360–61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (quotation marks omitted). It is premised on "a policy strongly favoring public disclosure of information in the possession of federal agencies." Halpern v. F.B.I., 181 F.3d 279, 286 (2d Cir. 1999).
" ‘There are, however, limits to FOIA's reach. Specifically, in recognition of those interests that may at times conflict with the policy of full disclosure, FOIA also provides nine exemptions from its disclosure requirement.’ " Pinnicchia v. U.S. Department of Veterans Affairs, Civil No. 3:17cv2139, 2019 WL 1173017 at *2-3 (D. Conn. March 13, 2019) (quoting El Badrawi v. Dep't of Homeland Sec., 583 F. Supp. 2d 285, 292 (D. Conn. 2008) (quotation marks and citations omitted)). The second circuit has recognized that "access to governmental information must be ‘orderly and not so unconstrained as to disrupt the government's daily business.’ " Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (quoting Ethyl Corp. v. EPA, 25 F.3d 1241, 1245 (4th Cir. 1994) ). "In keeping with the policy of full disclosure, the exemptions are narrowly construed with doubts resolved in favor of disclosure." Halpern, 181 F.3d at 287 (quotation marks omitted). The agency bears the burden "of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA." Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994).
"Reasonably detailed affidavits or declarations explaining why any withheld documents fall within a particular exemption ‘are sufficient to sustain the agency's burden.’ " Associated Press v. DOJ, 549 F.3d 62, 65 (2d Cir. 2008) (quoting Carney, 19 F.3d at 812 ); see also Pinnicchia v. U.S. Department of Veterans Affairs, Civil No. 3:17-cv-2139, 2019 WL 1173017 at *3 (D. Conn. March 13, 2019) ("To meet its burden, an agency must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." (internal quotation marks and citations omitted)).
Further, the courts of this circuit recognize that a district court's review of agency denials of FOIA requests is de novo. Pinnicchia, Civil No. 3:17-cv-2139, 2019 WL 1173017 at *2-3 ; El Badrawi, 583 F. Supp. 2d at 292. "As noted by the Supreme Court, under FOIA, ‘federal jurisdiction is dependent on a showing that an agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.’ " Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (quoting United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (quoting Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) )).
I. Purely Internal Communications
The HHS argues that its "Exemption 5 redactions often appear within the portions of e-mail chains that were purely internal communications." The HHS further states that it redacted "internal agency communications which were not covered by plaintiff's request—and now plaintiff's objection seeks information that is peripheral to their initial request."
RRJP does not respond to this argument.
The court concludes that to the extent RRJP's FOIA request seeks "internal agency communications which were not covered by plaintiff's request ... and [is] information that is peripheral to their initial request," the HHS's motion for summary judgment is granted and RRJP's motion is denied.
II. "Deliberative Process" Privileged Communications
The HHS argues that the "deliberative process privilege protection of Exemption 5" applies to each of its redactions. The HHS states that it "produced a reasonably detailed Index describing the twenty-one records and their redactions, which constitute approximately seventy-five pages." According to the HHS, the parties’ motions and exhibits "disclose the context of defendant's Exemption 5 redactions, demonstrate how the communications are both predecisional and deliberative, and provide support for defendant's arguments."
RRJP argues in opposition that none of the HHS's redactions properly fall within exemption five. RRJP argues that the HHS's basis for redaction in its Vaughn index, is conclusory and insufficient to justify the claimed exemption. RRJP notes that the HHS "has not explained what role the withheld documents played in deliberations over the underlying substantive policy at issue, and instead makes broad conclusory statements ...." RRJP states that the context of the disclosures fails to indicate whether "the emails concern an already-decided policy, development of new policy, or post-decisional reflections establishing pressures from outside groups or that the policy was informed by an illegitimate purpose.... Nor do Defendant's vague descriptions demonstrate the required nexus between a particular substantive policy decision and the withheld documents."
In a subsequently filed notice of authority, the HHS cites a recent second circuit decision in which the court noted that " ‘important interests are served by FOIA's exemptions.’ " New York Times Co. v. United States Department of Justice, 939 F.3d 479, 488 (2d Cir. 2019) (quoting Food Marketing Institute v. Argus Leader Media, ––– U.S. ––––, 139 S. Ct. 2356, 2366, 204 L.Ed.2d 742 (2019) ). In response, RRJP states that this authority does not change "the ‘oft-repeated caveat that FOIA exemptions are to be narrowly construed.’ " Food Mktg, 139 S. Ct. at 2368 (Breyer, J, concurring).
Pursuant to exemption five, "inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency," are protected from disclosure. 5 U.S.C. § 552(b)(5). "Stated simply, [a]gency documents which would not be obtainable by a private litigant in an action against the agency under normal discovery rules (e.g., attorney-client, work-product, executive privilege) are protected from disclosure under Exemption 5." Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 481 (2d Cir. 1999) (internal quotation marks and citations omitted). "To qualify for the deliberative process privilege, a document must be both predecisional and deliberative." Id. at 482 (internal quotation marks and citations omitted).
The second circuit has recognized that "underlying the deliberative process privilege is the rationale that ‘those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.’ " Id. (quoting United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (footnote omitted)).
(a) Predecisional Requirement
The HHS argues that the documents in question are "predecisional ... because each relates to a future event, and none is a final or otherwise official statement of HHS." With respect to the HHS's reference, in its Vaughan index, to exhibit 1, it states that this record contains "predecisional and deliberative discussion regarding [a] letter from pro-life groups." Specifically, the HHS states that "[t]he challenged record ... is predecisional because it contains agency staff communications about whether and how the agency should respond to a letter." The HHS notes that the unredacted portions of this record identify its receipt of letters from agencies regarding abortion issues and a request for a meeting with the secretary. The HHS states that "it is clear that the agency had not yet determined how or whether to respond to the letters, or respond to the NGO's request for a meeting with the Secretary." According to the HHS, "[t]he redacted portion contains the author's personal, subjective recommendations, suggestions, or opinions about how to respond" and, therefore, falls within FOIA exemption five.
RRJP argues in opposition that the HHS has failed to sufficiently articulate a basis for the conclusion that the redacted information was predecisional. Specifically, RRJP states that "[w]ithout a more detailed account of what each document discusses, and the role that it played in internal deliberations, it is impossible for this Court or Plaintiff to determine that the material was indeed part of an internal deliberation or whether it reflects a decision previously made or embodies a position that was subsequently accepted by decision-makers." With respect to documents 20-21, addressing responses regarding congressional hearings, RRJP argues that they "are post-decisional: they contain information on messaging after HHS had already decided on the substantive policy matter." According to RRJP, in this case "the withheld documents all pertain to discussions of already decided policy matters."
In its reply brief, the HHS points out that RRJP has waived any argument that the redactions concern "post-decisional" information because they failed to raise it earlier. The HHS cites RRJP's waiver in its statement of fact and further avers that even if not waived, RRJP fails to provide a basis for such an argument in the face of the presumption in favor of the validity of HHS's statement that the documents were predecisional.
The Grand Cent. Partnership court noted that "[a] document is predecisional when it is prepared in order to assist an agency decisionmaker in arriving at his decision." Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999). Id.
The court concludes that based on the HHS's Vaughan index and the record, the redacted portions of the records at issue were predecisional and, therefore, satisfy the first requirement of exemption five. With respect to all of the redactions, the HHS has articulated the predecisional nature of that portion of the record. The agency had not yet determined how or whether to respond to the requests and inquiries and the redacted responses were "prepared in order to assist an agency decisionmaker in arriving at his decision." Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999).
Further, the court notes that RRJP may have waived this basis for its argument in support of summary judgment.
(b) Deliberative Requirement
RRJP argues that none of the redactions are proper because the communications fail to address "actual policy formation." RRJP notes that the HHS "ignores the crucial distinction, recognized by the Second Circuit, between documents reflecting ‘policy oriented judgment,’ which are within the privilege, and those which are ‘merely peripheral to actual policy formation.’ " RRJP cites district court cases distinguishing between "materials that concern mere messaging and responses to press inquiries, which are not covered by the deliberative process privilege, from materials that concern substantive policymaking and thus are covered by the privilege."
The HHS argues that the documents in question are "deliberative" "because [they] contain[ ] subjective recommendations or opinions of the author." Specifically, the HHS argues "that the records contain communications regarding as-of-yet-undecided policy issues, not simply communication methods." The HHS notes that the "Supreme Court caselaw on the deliberative process privilege has taken a broader view." It cites the Court's decision in Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001), for its holding that "deliberative process privilege ... covers documents reflecting advisory opinions, recommendations, and deliberations that are part of a process by which Government decisions and policies are formulated." Id. at 2, 121 S.Ct. 1060. The HHS also cites the second circuit's application of the Klamath Water decision to exempt "records that were ‘part of process by which governmental decisions and policies are formulated.’ " New York Times Co. v. DOJ, 756 F.3d 100, 121 (2d Cir. 2014), opinion amended on denial of reh'g, 758 F.3d 436 (2d Cir. 2014), supplemented, 762 F.3d 233 (2d Cir. 2014).
According to HHS, in its reply brief, this language is central to the court's holding in Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999).
The HHS also distinguishes cases cited by RRJP from the facts in this case and points out that in Fox News Network v. Dep't of the Treasury, 911 F. Supp. 2d 261, 277 (S.D.N.Y. 2012) ("Fox News II "), the district court "approved the agency's withholding of various records, the disclosure of which ‘would reveal the evolution of [the agency's] thinking regarding’ a decision." In a subsequent reply, the HHS points out that "in Touarsi v. DOJ, 78 F. Supp. 3d 332, 346 (D.D.C. 2015), the court found "that an agency staff person's notes were withholdable because ‘[t]he deliberative process privilege ... ‘protect[s] materials that concern individualized decisionmaking’ as well as ‘the development of generally applicable policy." " Id. at 346. RRJP replies that the HHS uses "out-of-context citations" and "fail[s] to address to main argument underlying the Fox News II decision."
RRJP replies that "[i]t is simply not true, as Defendant argues, that the deliberative process privilege covers all government ‘decisions and policies’ no matter what they concern." According to RRJP, relevant second circuit caselaw "draw[s] a clear line between deliberations concerning substantive policies and routine operating decisions." RRJP stresses the distinction between "policy oriented judgments from routine operating decisions."
Exemption five "does not protect a document which is merely peripheral to actual policy formation; the record must bear on the formulation or exercise of policy-oriented judgment." Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999). "A document is deliberative when it is actually ... related to the process by which policies are formulated." Id. (internal quotation marks and citations omitted). Therefore, with respect to exemption five, "the privilege focus[es] on documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated ...," and it "does not ... as a general matter, cover purely factual material." Id.
The second circuit noted that "[o]ther courts have looked at similar factors such as whether the document ‘(i) formed an essential link in a specified consultative process, (ii) ‘reflect[s] the personal opinions of the writer rather than the policy of the agency,’ and (iii) if released, would ‘inaccurately reflect or prematurely disclose the views of the agency.’ " Id. (quoting Providence Journal Co. v. U.S. Dept. of Army, 981 F.2d 552, 559 (1st Cir. 1992) (quoting Nat'l Wildlife Fed'n v. Forest Serv., 861 F.2d 1114, 1118–19 (9th Cir. 1988) )).
(i) Response to Media Inquiries
With respect to redactions in documents in response to media inquiries, the HHS argues that "[f]or these ten documents, ... the decisions about how to respond to such media inquiries are substantive policy decisions about the agency's messaging to the public, and discussions that inform those decisions are likewise substantive and policy-related." The HHS cites exhibit 8, which contains a private citizen's request regarding a Washington Post article. According to the HHS, the context of the communications reveals that the redactions in this record include an HHS staff member's inquiry of other HHS staff and "reflect the staff person's personal, subjective opinions or recommendations about how to proceed." The HHS notes that exhibit 9 contains a media inquiry seeking a response to a story. This communication, along with those in exhibits 10-15 and 17, contain redactions of HHS "communications in which the agency staff deliberate regarding the agency's media strategy and how to respond at some future time to inquiries from members of the media." With regard to a communication in exhibit 16 seeking "whether ‘Planned Parenthood’ would be ‘disqualified’ from ‘Title X,’ " HHS states that the redacted information "is ambiguous regarding its author's knowledge of whether the agency had yet responded to the particular inquiry in the initial e-mail. Nevertheless, the redacted response serves to guide the tenor of the discussion of how HHS should respond to this or similar inquiries."
RRJP argues that the media communications, and responses thereto, are subject to FOIA disclosure. Specifically, RRJP states that "[d]iscussions regarding reporter inquiries and even draft responses to press inquiries are routine, and are not exempt from mandatory disclosure under FOIA." RRJP argues that "[e]very single set of emails that Defendant continues to withhold concern agency messaging—whether to the media, to the public or interest groups, or to Congress, ...—and are therefore not subject to withholding under Exemption Five." RRJP argues that such messaging that "is not, itself, a ‘substantive policy decision.’ " In document 10's email communication addressed to the Heritage Foundation, regarding the short term health plan rule, RRJP notes that " ‘media strategy’ is a question of messaging, which is not protected by deliberative process privilege." With respect to document 16, RRJP argues that "discussing how to tell a reporter about an already-decided policy is not ‘predecisional,’ nor is explaining that policy to a reporter ‘an actual policy formulation.’ " RRJP states that the cases the HHS cites fail to provide a "distinction between deliberations among agency staff about how to respond to media inquiries, and deliberations about how to formulate an overall press policy."
In its reply brief, HHS states that "[t]hese messages to the media were not merely the introduction of a recently-decided policy to the public via the media, nor a parroting of existing talking points to the public. Rather, in various records the media was asking the agency its position on a new and developing issue."
The court concludes that a review of the Vaughan index, in the context of the disclosed portions of the emails, the affidavits and the parties’ memoranda, reveals that the media related communications fall within exemption five. In various records, members of the media sought the agency's position on new and developing issues. The HHS's responses and discussion in the redacted portions of the emails appears deliberative and part of the agency's "consultative process." Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 483 (2d Cir. 1999). The redacted portions reflect the author's opinions and "[i]t is also apparent that the release of [these redactions] may well reflect inaccurately upon or prematurely disclose the views of [the HHS]." Id. Contrary to RRJP's arguments, these records "had a direct bearing on the actual exercise of a policy judgment." Id. The facts surrounding the redacted communications indicate that HHS officials were engaged in the free discussion of ideas necessary for appropriate and effective agency decision-making. Application of exemption five these redactions will " ‘safeguard and promote agency decisionmaking processes’ " and " ‘assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism ....’ " Brennan Center for Justice at New York University School of Law v. U.S. Dept. of Justice, 697 F.3d 184, 206 (2d Cir. 2012) (quoting Providence Journal Co. v. U.S. Dept. of the Army, 981 F.2d 552, 557 (1st Cir. 1992) (quoting Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) )). Therefore, the HHS's motion for summary judgment is granted and RRJP's motion is denied with respect to this issue.
(ii) Correspondence Re: Secretary's Participation in Events and Response to Pro-Life Groups
The HHS argues that "[f]or these six documents ... the decision of the Secretary whether and/or how to participate in an event is a decision of how to use an agency resource, and that therefore, a discussion on that topic is a substantive, deliberative discussion." As an example, HHS cites a private request regarding the HHS secretary's involvement in a "March for Life" reception. According to the HHS, the staff member's responses regarding the invitation "are quintessential deliberative communications because they contain the staff member's subjective response to the invitation and any characterization of it." The HHS further notes that the secretary had not decided whether to accept or decline the invitation and the decision involved a determination with respect to the use of agency resources and interpretation of agency policy.
RRJP argues that the HHS fails to "explain[ ] how public appearances by the Secretary are more than ‘peripheral to actual policy formation.’ " Specifically, RRJP states that such "decisions about the Secretary's participation in private groups’ events are, at most, ‘routine operating decisions’ outside the scope of the deliberative process privilege." In addition, RRJP argues that document 3 constitutes "an extra-agency communication" to which exemption 5 does not apply. RRJP notes that the HHS's basis for redaction is conclusory and insufficient to justify the claimed exemption. In a reply brief, RRJP states that the HHS's statement that its redaction is based on " ‘how and whether to meet with and work with certain NGOs’ is too vague to justify withholding the documents."
With respect to document 1, an email discussing a letter from pro-life groups, RRJP asserts "this document is about messaging rather than actual policy formulations," and, therefore, it is not deliberative. RRJP notes that redactions contained in documents 2-7, regarding HHS's response to invitations to speak to pro-life supporters, HHS's response to communications from the Heritage Foundation and HHS's response to communications from Students For Life, are similarly not exempt from disclosure because they do not address policy formulation. RRJP also states that the HHS fails to sufficiently articulate "any identifiable decision, much less a decision that would constitute "an actual policy formulation," with respect to its redaction of its reaction to an email from the SBA List, in document 8."
The court concludes that a review of the Vaughan index, in the context of the disclosed portions of the emails, the affidavits and the parties’ memoranda, fails to provide sufficient information for proper evaluation and determination of this issue, with respect to documents 2-7. The HHS fails to sufficiently state how these documents are part of a process of deliberation as opposed to "routine operating decisions" regarding whether the secretary would attend a given event. The HHS shall produce records 2-7 in their unredacted form, for the court's in camera review and determination of this issue.
With respect to document 1, containing correspondence from various pro-life groups seeking the secretary's position, the court concludes, similar to the media requests, that the record falls within exemption five. In addition, document 8, containing correspondence from "the SBA List," seeking the HHS's position on presidential defense of a birth control requirement, is covered by exemption 5. The HHS's responses and discussion in the redacted portions of the emails appears deliberative and part of the agency's "consultative process," Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 483 (2d Cir. 1999), regarding its response to these inquiries.
(iii) Agenda for Upcoming Event
The HHS next argues that redactions regarding communications involving a disparity in an event's agenda are properly exempted. With respect to these records, the HHS's Vaughan index indicates that "[t]he content of the event changed after this e-mail was sent; agency staff must be able to freely discuss what to include in an event before it occurs." According to the HHS, "[t]hese communications relate to the decision of how to structure the content of a public event, which involves a policy decision that was not yet made at the time the e-mails were sent." Therefore, "HHS's redacted e-mails contain predecisional, deliberative communications that are worthy of Exemption 5 protection."
RRJP argues that "unidentified changes in the contents of a ‘live stream’ event do not constitute ‘an actual policy formulation,’ and emails discussing such an event cannot relate to ‘the process by which policies are formulated.’ " RRJP states that the HHS fails "to justify its withholdings of Documents 18-19" and the cases on which it relies "concern drafts of substantive agency policy documents , not event agendas." According to RRJP, the document at issue constitutes a document discussing "existing agency policy" and not "policy-making." It fails to constitute a "draft," because, RRJP argues, no final agenda was ever produced.
In its reply, HHS states that, with respect to production of a "final" agenda, it has no obligation to disclose a record that RRJP did not request. The HHS states that it is entitled to a "presumption of good faith" regarding its statement that the agenda was a "draft."
In National Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114 (9th Cir. 1988), the court applied exemption five to the U.S. Forest Service's draft forest plans. Id. at 1122. The court concluded that the plans "constitute[d] the ‘give-and-take’ of the Forest Service and represent[ed] the mental processes of the agency in considering alternative courses of action prior to settling on a final plan." Similarly here, the HHS's draft agenda, which it attests differed from the content of the actual event, represents a document containing predecisional deliberation. The HHS's redaction of this record furthers "exemption 5's goal of encouraging uninhibited decisionmaking." Id. Therefore, the HHS's motion for summary judgment is granted and RRJP's motion is denied with respect to this issue. (iv) Preparation for Congressional Hearings
"Affidavits submitted by an agency are ‘accorded a presumption of good faith ....’ " Carney v. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (citing Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) ).
RRJP argues that the HHS "has not so much as alleged that these emails, to an unknown individual, constitute an ‘intra- or inter-agency communication.’ " RRJP further states that such communications addressing " ‘how to present agency policies to Congress , the press, or the public, while deliberative, typically do not relate to the type of substantive policy decisions Congress intended to enhance through frank discussion.’ " According to RRJP, "[s]uch communications may only be withheld under FOIA ‘if their release would reveal the status of internal deliberations on substantive policy matters ’ " that are "not-yet-finalized."
The HHS argues that its redactions with respect to communications regarding upcoming congressional hearings fall within the purview of exemption five. Specifically, the HHS states that "[t]he decision of how to prepare for future congressional testimony involves a predecisional, substantive policy discussion that requires free deliberation." With respect to whether the emails amount to " ‘intra- or inter-agency communication," the HHS points out that RRJP did not previously challenge the redactions on this basis and, therefore, waived the argument.
In its reply brief, RRJP argues that "[b]ecause documents containing discussions on how to present already-decided policy are not protected under Exemption Five, Documents 20-21 must also be disclosed."
In Access Reports v. Dept. of Justice, 926 F.2d 1192 (D.C. Cir. 1991), the court concluded that exemption five applied to a Department of Justice staff attorney's memorandum containing an analysis of FOIA amendments introduced in the Senate. Id. at 1196-97. Further, courts have recognized that "talking points" regarding communications with the press or Congress were covered by exemption five. American Center for Law and Justice v. United States Dept. of Justice, 392 F. Supp. 3d 100, 106 (D. D.C. 2019) (recognizing that "the privilege applies to agency deliberations about future public statements, including talking points ..." because they "reflect[ ] a part of the give-and-take between the drafter and the Attorney General leading up to her external interactions"); see also Competitive Enterprise Institute v. United States Environmental Protection Agency, 12 F. Supp. 3d 100, 120 (D. D.C. 2014) (recognizing applicability of exemption five where the "communication at issue involved ‘how to communicate with members of Congress ... and how to prepare for potential points of debate or discussion.’ "). "As the Court made clear, however, that protection is not categorical. The key, as with any privilege, is context." Id. (citing American Center for Law and Justice v. United States Dept. of Justice, 325 F. Supp. 3d 162, 172 (D. D.C. 2018) ).
In this case, the context surrounding the communications at issue indicates that the redactions address preparation for future congressional testimony. The circumstances surrounding the redactions indicate that they contain communications regarding agency policy surrounding preparation for points of debate or discussion. They "reflect[ ] a part of the give-and-take between the drafter and the [agency] leading up to [ ] external interactions." American Center for Law and Justice v. United States Dept. of Justice, 392 F. Supp. 3d 100, 106 (D. D.C. 2019). Therefore, these communications fall within the ambit of exemption five. The HHS's motion is granted and RRJP's motion is denied with respect to this issue.
CONCLUSION
For the foregoing reasons, the plaintiff's motion for summary judgment (document 31) is denied with respect to records 1 and 8-21 and denied without prejudice with respect to the remaining records. The defendant's motion (document 32) is granted with respect to documents 1 and 8-21 and denied without prejudice with respect to the remaining records. The defendant shall produce records 2-7 in unredacted form, for the court's in camera review, on or before June 24, 2020. The defendant may produce the records electronically, and under seal, rather than in paper form. After submission of these documents, the court will issue a supplemental opinion regarding the redactions contained in records 2-7.
It is so ordered this 29th day of May 2020, at Hartford, Connecticut.