American Oversigh v. U.S. Dep't of Health & Human Servs.

• Decision Date: 30 March 2019
• Docket Number: Civil Action No. 17-1448 (ABJ)
• Citation: 380 F.Supp.3d 45
• Parties: AMERICAN OVERSIGHT, Plaintiff, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.
• Court: U.S. District Court — District of Columbia

380 F.Supp.3d 45

AMERICAN OVERSIGHT, Plaintiff,

v.U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

Civil Action No. 17-1448 (ABJ)

United States District Court, District of Columbia.

Signed March 30, 2019

Sara Kaiser Creighton, American Oversight, Washington, DC, for Plaintiff.

Michael Hendry Baer, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff, American Oversight, submitted a request to the Department of Health and Human Services ("HHS") and the Office of Management and Budget ("OMB") under the Freedom of Information Act, 5 U.S.C. § 552, seeking communications from the agencies to Members of Congress and Congressional staff about potential administrative actions related to the implementation of the Affordable Care Act. Compl. [Dkt. # 1] ¶¶ 10–11. Plaintiff sued the agencies arguing, among other things, that the agencies withheld or redacted records without justification, and that it failed to adequately search for responsive records. Id. ¶¶ 44–55.¹ The agencies moved for summary judgment, and plaintiff opposed the motion and filed its own motion for summary judgment.

Because the Court finds that the agencies improperly redacted and mislabeled responsive information as "non-responsive records," and that they improperly invoked Exemption 5 to withhold the agencies' emails with Congress, it will deny defendants' motion for summary judgment and grant plaintiff's cross-motion. Defendants are ordered to produce responsive records consistent with this opinion.

BACKGROUND

Plaintiff American Oversight "is a nonpartisan, nonprofit ... organization committed to the promotion of transparency in government." Compl. ¶ 6. On May 4, 2017, it sent identical FOIA requests to HHS and OMB seeking the following two categories of records:

1. A copy of any letter or memorandum sent on or about March 23, 2017 to Congressional republicans outlining potential regulatory actions related to the Affordable Care Act. The requested record was referenced in an April 4, 2017 letter from 21 Senators to Secretary Tom Price.

2. Any other communications from [the agencies] to any member of Congress or congressional staff concerning potential administrative actions relating to implementation of the Affordable Care Act.

Ex. A to Compl., HHS FOIA [Dkt. # 1-1]; Ex. B to Compl., OMB FOIA [Dkt. # 1-2] (collectively, "FOIA Requests"). The timeframe of the requests was from March 6, 2017, to the date of the agencies' searches. Id. at 2. Plaintiff explained in its letters that it was interested in this information due to stalled legislative efforts in Congress to "repeal and replace" the Affordable Health Care Act ("ACA"), and subsequent reports that the "Trump administration [planned] to take administrative actions that would affect the operation of the ACA," including the repeal of regulations. Id. at 1–2.

Plaintiff filed this suit on July 20, 2017, and the agencies began making rolling productions in November 2017. Status Report & Proposed Processing Schedule [Dkt. # 6] at 1. By February 2018, both agencies had completed their productions. Joint Status Report [Dkt. # 13] at 1.

The agencies moved for summary judgment on April 9, 2018, see Defs.' Mot. for Summ. J. [Dkt. # 14]; Mem. of P. & A. in Supp. of Defs.' Mot. [Dkt. # 14-1] ("Defs.' Mem."), and plaintiff opposed that motion and filed a cross-motion for summary judgment. Pl.'s Cross-Mot. at Summ. J. [Dkt. # 16]. Those motions are fully briefed and ripe for decision. See also Mem. of P. & A. in Opp. to Pl.'s Mot. For Summ. J. & in Reply in Supp. of Defs.' Mot. [Dkt. # 20] ("Defs.' Reply"); Reply in Supp. of Pl.'s Cross-Mot. for Summ. J. [Dkt. # 22] ("Pl.'s Cross-Reply").

STANDARD OF REVIEW

To prevail in a FOIA action, an agency must first demonstrate that it has made "a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army , 920 F.2d 57, 68 (D.C. Cir. 1990). Second, the agency must "show that [the] requested material falls within a FOIA exemption." Nat'l Ass'n of Home Builders v. Norton , 309 F.3d 26, 32 (D.C. Cir. 2002). Any "reasonably segregable" information in a responsive record must be released, 5 U.S.C. § 552(b), and "non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Mead Data Cent., Inc. v. U.S. Dep't of Air Force , 566 F.2d 242, 260 (D.C. Cir. 1977).

Summary judgment is appropriate when "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). Most FOIA cases are appropriately resolved on motions for summary judgment. Brayton v. Office of the U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011).

In a FOIA action, the Court may award summary judgment solely on the information provided in affidavits or declarations that 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) ; see also Vaughn v. Rosen , 484 F.2d 820, 826 (D.C. Cir. 1973). 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).

ANALYSIS

I. The agencies improperly redacted email chains as "non-responsive records."

In American Immigration Lawyers Association v. Executive Office for Immigration Review (" AILA "), the D.C. Circuit held that the FOIA "statute does not provide for withholding responsive but non-exempt records or for redacting nonexempt information within responsive records." 830 F.3d 667, 677 (D.C. Cir. 2016). Therefore, "once an agency identifies a record it deems responsive to a FOIA request, the statute compels disclosure of the responsive record – i.e., as a unit – except insofar as the agency may redact information falling within a statutory exemption." Id. , citing 5 U.S.C. § 552 (a)(3)(A). This means that unless information within a record can be withheld by invoking one of the narrowly construed FOIA exemptions, a responsive record must be produced in its entirety.

However, the question of "what constitutes a record" was not raised by the parties in AILA , and the Court found "no cause to examine the issue." Id. at 678. It noted that the FOIA statute does not define the term, and that "agencies ... in effect define a ‘record’ when they undertake the process of identifying records that are responsive to a request." Id. Therefore, it appears that what is deemed "responsive to the request" should dictate what constitutes the record.

Here, defendants contend that they properly redacted large portions of the agencies' email chains based on their definition of what would constitute a "record." Defs.' Mem. at 9–13. Rather than treating entire email chains as a "record," defendants took a narrower approach and defined a "record" to be each individual email in the chain "based on whether the author was an official at one of the agencies." Defs.' Reply at 3. The practical effect of this approach is that when an agency employee replied to an email emanating from Congress and the previous exchanges were included in the response, defendants redacted from the thread any email that was authored by Congress on the grounds that it was a "non-responsive record." See, e.g. , Ex. 3 to Pl.'s Cross-Mot. [Dkt. # 16-6] ("HHS FOIA Production"); Ex. 4 to Pl.'s Cross-Mot. [Dkt. # 16-7] ("OMB FOIA Production"). Defendants insist that their approach is justified because plaintiff's request "sought only emails from the agencies , not emails from Congress or back-and-forth exchanges between Congress and the agencies," therefore, "[e]mails from Congress ... were not responsive to the requests, and the agencies did not produce them." Defs.' Mem. at 9 (emphasis in original).

Plaintiff challenges those redactions on two grounds: first it argues that the "redacted material is itself responsive" to the FOIA requests because "when the agency staffers sent the emails at issue to Congress, they opted to include prior email exchanges as in-line text within those communications," Pl.'s Cross-Mot. at 5; and second, it contends that "the redacted material is, at a minimum, part of a responsive record, and FOIA does not permit redactions within a responsive record based solely on the determination that portions of the record are non-responsive." Id.

Defendants maintain that their approach is driven by the language of the request, which called for:

[C]ommunications from [the agencies] to any member of Congress or congressional staff concerning potential administrative actions relating to implementation of the Affordable Care Act.

FOIA Requests at 2 (emphasis added). According to defendants, the request is limited on its face to emails authored by agency personnel. Defs.' Mem. at 11. Plaintiff insists that a plain interpretation of the request requires the agencies to produce anything that was sent or contained in an email from the agencies, including the prior exchanges that prompted the particular email at the top of the chain. Pl.'s Cross-Mot. at 5. Plaintiff points out that if the agencies wished to reply to Congress without including prior communications, they could have easily composed a brand new email or changed their email settings. Id. at 7–10.

The Court finds defendants' approach to be unduly literal and stingy, and it agrees that plaintiff's position is more consistent with the...