Am. Oversight v. U.S. Dep't of Transp.
| Decision Date | 11 January 2022 |
| Docket Number | Civil Action 18-1272 (CKK) |
| Court | U.S. District Court — District of Columbia |
| Parties | AMERICAN OVERSIGHT, Plaintiff, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, Defendant. |
In this Freedom of Information Act (“FOIA”) case Plaintiff American Oversight seeks the unredacted disclosure of communications between Congressional and U.S. Department of Transportation (“DOT”) staff in which Congressional staff sought agency input on draft transportation-related legislation. In response to Plaintiff's FOIA request for these documents, Defendant DOT produced several documents redacted, in relevant part pursuant to FOIA's fifth exemption to disclosure of agency records. That exemption protects “inter-agency or intra-agency memorandums and letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). In challenging these redactions, Plaintiff raises two interrelated questions of law regarding the scope of Exemption 5. First, are communications between Congressional and agency staff, in which Congressional staff exchange input on draft legislation that the two staffs are working on together, “inter-agency or intra-agency memorandums or letters?” Second, and if so, do these communications fall within the “deliberative process privilege ” i.e., does an agency necessarily “rely” upon those communications to aid in its own policy- or decision-making process? Upon consideration of the pleadings, [1] the relevant legal authorities, the documents themselves, and the record as a whole, the Court answers both questions in the affirmative. As such, the Court GRANTS Defendant's [22] Motion for Summary Judgment and Plaintiff's [24] Cross-Motion for Summary Judgment is DENIED.
On January 10, 2018, Plaintiff submitted a FOIA request to DOT for “[a]ll records reflecting communications (including emails, email attachments, text messages, telephone call logs, calendar invitations/entries, meeting notices, meeting agendas, informational material, draft legislation, talking points, or other materials)” between anyone in DOT's Offices of the Secretary, the Under Secretary of Transportation for Policy, and Governmental Affairs, and “Senator Mitch McConnell or anyone who works for Mr. McConnell.” Def.'s Ex. A, Declaration of Michael Bell, Def.'s Mot (“Bell Decl.”), at 2. Plaintiff completed its production of responsive records on May 30, 2019. Id. As part of its production, DOT redacted several records under, in relevant part, FOIA Exemption 5. The parties agree, and Defendant's Vaughn index shows, that the contested documents all reflect emails between staff for Sen. McConnell and DOT staff regarding proposed or draft legislation. The Vaughn index indicates the identity of the individuals on each redacted email, the nature of the withheld content, roughly the status of each proposed legislation, and how DOT input on that legislation furthered internal policy deliberation. The documents themselves show as much as well. Plaintiff asserts, and Defendant does not appear to contest in its briefing, that the documents all relate to Congressional requests for input and advice on draft legislation from DOT staff. See Def.'s Repl. at 2.
The parties disagree over the significance of Congressional staff requesting information from an agency. Defendant's central argument is that Congressional staff played the role of “consultant” in these communications. In other words, Defendant argues, they fall within the “consultant corollary” doctrine of Exemption 5 that permits an agency to redact “communications between an agency and a non-agency that aided the agency's decision-making process.” See Judicial Watch v. U.S. Dep't of Transp., 950 F.Supp.2d 213, 218-19 (D.D.C. 2013). Plaintiff, on the other hand, argues that communications between Congressional and agency staff, particularly where it is Congressional staff who ask for assistance with their own proposed legislation, cannot be inter- or intra-agency communications. See Pl.'s Mot. at 3. Concerned that Plaintiff might mean to suggest that inquiries from Congress to agencies are not “agency records” within the meaning of FOIA at all, the Court directed the parties to submit supplemental briefing on that subject. The Court further ordered Defendant to provide the Court copies of the communications at issue for examination in camera. Having reviewed the documents and the parties' briefing, the Court now turns to the motions' resolution.
The FOIA authorizes a district court only “to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). This case, like a “vast majority” of FOIA cases, can be decided on summary judgment. See Brayton v. Office of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
Summary judgment is appropriate upon a showing 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). In a FOIA case, the Court may award summary judgment to an agency solely on the information provided in affidavits or declarations when they describe “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); accord Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.'” SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). Rather, a plaintiff “must point to evidence sufficient to put the agency's good faith into doubt.” Ground Saucer, 692 F.2d at 771. Otherwise, “‘uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail.'” Schoenman v. FBI, 841 F.Supp.2d 69, 80 (D.D.C. 2012) (quoting Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 509 (D.C. Cir. 2011) (alteration omitted)).
On summary judgment, the district court must conduct a “de novo” review of the record, 5 U.S.C. § 552(a)(4)(B), “to ascertain whether the agency has sustained its burden of demonstrating that the documents requested . . . are exempt from disclosure.” Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (citation and internal quotation marks omitted). “Consistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents.” Beck v. Dep't of Just., 997 F.2d 1489, 1491 (D.C. Cir. 1993). Only after an agency has proven that “it has fully discharged its disclosure obligations” is summary judgment appropriate. Weisberg v. Dep't of Just., 705 F.2d 1344, 1350 (D.C. Cir. 1983).
Exemption 5 of FOIA protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). To fall within Exemption 5, “a document must meet two conditions: ‘its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.'” Stolt-Nielsen Transp. Grp. v. United States, 534 F.3d 728, 733 (D.C. Cir. 2008) (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001)). In essence, Exemption 5 provides grounds for withholding documents that would fall under a variety of recognized privileges available to Government agencies in civil litigation including, of relevance to this case, the deliberative process privilege. Recently, Plaintiff has aggressively litigated Exemption 5 within the congressional context, and the Court is not the first in this jurisdiction to confront the question. E.g., Am. Oversight v. U.S. Dep't of Health and Human Servs., 380 F.Supp.3d 45 (D.D.C. 2019) (ABJ) (“Am. Oversight v. HHS”) (granting summary judgment in favor of plaintiff); Am. Oversight v. U.S. Dep't of the Treas., 474 F.Supp.3d 251 (D.D.C. 2020) (RBW) (“Am. Oversight v. Treasury”) (granting summary judgment in favor of defendant).
Plaintiff first argues that DOT's communications cannot be inter-agency communication because, in part “the statute explicitly excludes Congress from its definition of the term ‘agency.'” Pl.'s Cross-Mot. at 5. Both judges in Am. Oversight v. Treasury and Am. Oversight v. HHS rejected this very same argument. 474 F.Supp.3d at 262; 380 F.Supp.3d at 52. As those courts noted, such a holding is contrary to the law of our Circuit. See, e.g., Pub. Empls. For Envtl. Responsibility v. U.S. Section, Int'l Boundary & Water Comm'n, U.S.-Mexico, 740 F.3d 195, 201 (D.C. 2014) (Kavanaugh, J.). It also fails for a more fundamental reason. If communications with Congress are not “agency” records within the meaning of Exemption 5, then they are not records within the meaning of FOIA. In other words, they are not subject to disclosure at all. See 5 U.S.C. § 552(1)(A); Cause of...
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