Cause of Action Inst. v. Export-Import Bank of the U.S.

• Decision Date: 23 February 2021
• Docket Number: Civil Action No. 19-1915 (JEB)
• Citation: 521 F.Supp.3d 64
• Court: U.S. District Court — District of Columbia
• Parties: CAUSE OF ACTION INSTITUTE, Plaintiff, v. EXPORT-IMPORT BANK OF THE UNITED STATES, Defendant.

521 F.Supp.3d 64

CAUSE OF ACTION INSTITUTE, Plaintiff,

v.EXPORT-IMPORT BANK OF THE UNITED STATES, Defendant.

Civil Action No. 19-1915 (JEB)

United States District Court, District of Columbia.

Signed February 23, 2021

Lee A. Steven, Ryan Patrick Mulvey, Cause of Action Institute, Arlington, VA, for Plaintiff.

April Denise Seabrook, Darrell C. Valdez, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

This case involves two Freedom of Information Act requests submitted by Plaintiff Cause of Action Institute, a self-styled non-partisan government-oversight organization, to Defendant Export-Import Bank of the United States, an independent agency tasked with fostering economic growth by financing exports of various goods and services. In competing Motions for Summary Judgment, the parties focus on the Bank's redactions to several hundred pages of responsive records, most of which it withheld under the deliberative-process privilege. Although the Court had hoped to settle the propriety of all such withholdings in one fell swoop, an array of unfortunate shortcomings in the Government's current record renders swift resolution impracticable. The Court, accordingly, delivers a mixed bag of results: it will affirm the agency's nondisclosure of some records, order the release of another group, and require it to go back and further show its work should it wish to continue withholding still others.

I. Background

As the procedural history undergirding the present Motions is relatively straightforward, the Court need only briefly summarize it before turning to the merits of the parties’ various disputes. Plaintiff filed a FOIA request on September 20, 2018, for records reflecting communications involving four senior EXIM officials regarding a series of individuals and business entities. See ECF No. 1-1 (FOIA Request # 201800076F). It followed up that initial entreaty with another on May 24, 2019, this time seeking additional records from agency officials pursuant to a handful of new search terms. See ECF No. 1-3 (FOIA Request # 201900047F). Although the Institute's proposed keywords resist concise summary, it describes its requests as seeking communications among EXIM employees during congressional hearings for Kimberly Reed's nomination to be the Bank's President, as well as information relating to certain Government Accountability Office oversight activities. See ECF No. 1 (Complaint), ¶ 1. After EXIM failed to immediately respond, Plaintiff brought this suit on June 26, 2019.

The agency eventually issued full and final responses to both requests, producing non-exempt portions of a combined 783 responsive records totaling 7,633 pages between August 2019 and February 2020. See ECF No. 27-3 (Declaration of Lennell Jackson), ¶ 47; ECF No. 22 (3/3/20 Joint Status Rep.) at 1–2. In so doing, EXIM fully or partially redacted a number of documents, largely citing FOIA Exemptions 5 and 6 as its bases for nondisclosure. Dissatisfied with certain of those withholdings, Plaintiff informed the Bank of its intention to challenge them. See ECF No. 28-4 (Declaration of Ryan P. Mulvey), ¶ 6; see also id. at ECF pp. 30–474 (disputed redacted records). That notice eventually prompted Defendant to move for summary judgment, see ECF No. 27-2 (Def. MSJ), which the Institute opposed with its own Cross-Motion. See ECF No. 28-1 (Pl. MSJ & Opp.).

Following the completion of briefing, the Court, in an effort to better understand the withholdings at issue, requested EXIM to submit clean and redacted copies of all disputed documents for in camera review. See ECF No. 35 (Notice). Having now reviewed such submissions, the Court is ready to rule.

II. Legal Standard

Summary judgment may be granted 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) ; see also Anderson v. Liberty Lobby, 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb, 433 F.3d at 895. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Holcomb, 433 F.3d at 895. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion" by "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's 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." Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). 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, 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) ). "FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’ " U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting 5 U.S.C. § 552(a)(4)(B) ).

III. Analysis

Congress enacted FOIA "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citation omitted). The statute promotes these aims by providing that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules[,] ... shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). The Government need not, however, turn over requested information that falls into one of nine statutorily created exemptions from FOIA's broad directive. See id. § 552(b)(1)–(9). "While those exemptions must be narrowly construed, they still must be given meaningful reach and application." DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (internal quotation marks and citations omitted). This Court can compel the release of any records that do not satisfy the requirements of at least one exemption. See Reporters Comm., 489 U.S. at 755, 109 S.Ct. 1468.

A "veritable avalanche of FOIA-related precedent" guides this Court's determination of whether the Government has carried its burden of establishing that a given exemption applies. Ullah v. CIA, 435 F. Supp. 3d 177, 182 (D.D.C. 2020). In order to show that certain information is exempt from FOIA, "an agency may file ‘affidavits describing the material withheld and the manner in which it falls within the exemption claimed.’ " Bin Ali Jaber v. U.S. Dep't of Def., 293 F. Supp. 3d 218, 224 (D.D.C. 2018) (quoting King v. U.S. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987) ). Ultimately, "when an agency seeks to withhold information, it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant." Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (quoting King, 830 F.2d at 219 ). "[A]n agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ " Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007) ).

Although Plaintiff does not contest the adequacy of EXIM's search for responsive records, its varied challenges to a bevy of the agency's withholdings ensure no paucity of knots for the Court to untangle. As the Bank predicates nearly all of its redactions on Exemption 5, the Court will spend most of its time there. It then shifts to Exemption 6 before briefly concluding with the agency's claim that select portions of one record are not subject to FOIA at all. The Court, thankfully, need not tackle EXIM's separate argument that Exemption 4 independently justifies certain overlapping withholdings for which it also cites Exemption 5, see Jackson Decl., ¶ 26; as will soon become clear, the Court's resolution of the application of the latter exemption renders unnecessary any discussion of the former, at least for now. See Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (explaining that court "need not address [any] other exemptions invoked" for particular withholding justified by a single exemption).

A. Exemption 5

Exemption 5 applies to "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). Withholdings are restricted to "those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ; see also United States v. Weber Aircraft Corp., 465 U.S. 792, 798–99, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984). The exemption encompasses three distinct components — namely, the...