Evans v. U.S. Office of Personnel Management

• Decision Date: 30 July 2003
• Docket Number: No. CIV.A. 03CV0055(ESH).,CIV.A. 03CV0055(ESH).
• Parties: Lane EVANS, Plaintiff, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, Defendant.
• Court: U.S. District Court — District of Columbia

276 F.Supp.2d 34

Lane EVANS, Plaintiff, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, Defendant.

No. CIV.A. 03CV0055(ESH).

United States District Court, District of Columbia.

July 30, 2003.

Mark S. Zaid, Krieger & Zaid, PLLC, Washington, DC, for Plaintiff.

James S. Carroll, III, U.S. Attorney's Office District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

HUVELLE, District Judge.

This case arises from the United States Office of Personnel Management's ("OPM") refusal to disclose a two-page memorandum requested under the Freedom of Information Act ("FOIA"). Defendant argues that disclosure is not required because the document is protected by FOIA's Exemption 5. Plaintiff counters that the government has failed to sustain its burden under Exemption 5 because: 1) the memorandum is neither deliberative nor predecisional, and 2) the document lost any possible protection because it was adopted by OPM as a final agency opinion in two public documents. Having reviewed the document in camera, the Court agrees that the government has not shown that the document is deliberative and predecisional, and therefore, it need not reach plaintiff's remaining arguments. The Court will therefore deny defendant's motion for summary judgment and deny plaintiff's cross-motion for discovery as moot.

BACKGROUND

Plaintiff is currently serving his eleventh term in the United States House of Representatives, representing the 17th Congressional District of Illinois. (Compl.¶ 3.) He is the Ranking Democratic Member of the House Veterans' Affairs Committee. (Id.) Plaintiff's interest in the document stems from his personal experience as a veteran and member of the aforementioned committee, and more directly from his concern that veterans' congressionally-granted rights, privileges, and benefits are not being effectively administered. (Id. ¶ 5).

On September 5, 2002, plaintiff made a request pursuant to FOIA, 5 U.S.C § 552, to Kay Cole James, Director of the Office of Personnel Management. (Declaration of Mark Robbins ["Robbins Decl."] ¶ 4.) Specifically, plaintiff demanded a copy of the May 18, 1998 OPM Office of General Counsel ("OGC") memorandum relating to the use of multiple certificates to fill interdisciplinary positions.¹ (Id.) This request was referred to OGC for a response. (Id.) By letter dated September 20, 2002, Mark Robbins, General Counsel for the OPM, informed plaintiff that OPM was denying the FOIA request pursuant to Exemption 5, claiming the memo was prepared by an OGC staff member in response to an inquiry from an OPM program office regarding the permissibility of instructing examining offices not to issue multiple certificates of eligibles for vacant interdisciplinary positions.² (Id. ¶ 5, 10.) By letter dated October 4, 2002, plaintiff appealed the decision of OGC to Dan Blair, the Deputy Director of the OPM. (Id. ¶ 6.) Mr. Blair then notified plaintiff on December 13, 2002, that OPM would uphold the decision of the OGC to assert Exemption 5. (Id. ¶ 7.)

Plaintiff filed the instant action on January 14, 2003, challenging OPM's denial of his FOIA request for the OGC memorandum. He seeks to have this Court order disclosure of the requested document, as well as reasonable costs and attorney's fees. Invoking the deliberative process privilege of Exemption 5, defendant has moved for summary judgment.

LEGAL ANALYSIS

I. Legal Standard

FOIA was enacted in 1966 to implement a "general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Dep't of the Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (quoting S.Rep. No. 89-813 (1965)). Thus, an agency must promptly make available any records requested by members of the public, unless the agency can establish that the information is properly withheld under any of the nine exemptions set forth in the statute. See 5 U.S.C. § 552(b). These exemptions are exclusive and should be narrowly construed. Rose, 425 U.S. at 361, 96 S.Ct. 1592. When a challenge is made to an agency's decision to withhold information, the burden of proof rests on the agency to sustain its decision, and the reviewing court is directed to "determine the matter de novo." 5 U.S.C. § 552(a)(4)(B).

Summary judgment is the preferred method of resolving cases brought under FOIA. See Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir.1993) ("Generally, FOIA cases should be handled on motions for summary judgment, once the documents in issue are properly identified."). In order to prevail on a motion for summary judgment, an agency must demonstrate that no material facts are in dispute and that each document that falls within the class requested either has been produced or is exempt from FOIA's inspection requirements. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C.Cir. 2001); Weisberg v. United States Dep't of Justice, 627 F.2d 365, 368 (D.C.Cir.1980). In a FOIA action, the Court may award summary judgment to the agency on the basis of affidavits when the affidavits 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 Vaughn v. Rosen, 484 F.2d 820, 826 (D.C.Cir.1973). In the present case, however, due to the conclusory nature of the statements made by Mark Robbins in his declaration, the Court has exercised its discretion and examined the disputed document in camera in order to make an independent assessment of defendant's claims that the memorandum is protected under Exemption 5 and that no non-exempt material is segregable from the rest of the document.

II. Exemption 5

Defendant claims that FOIA Exemption 5 justifies the withholding of the May 18, 1998 memorandum. Exemption 5 protects from disclosure "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). This provision "exempt[s] those documents, and only those documents, normally privileged in the civil discovery context." N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); see also FTC v. Grolier, Inc., 462 U.S. 19, 26, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983); Martin v. Office of Special Counsel, Merit Sys. Prot. Bd., 819 F.2d 1181, 1184 (D.C.Cir.1987). The privileges that are incorporated into Exemption 5 include the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege. See Sears, 421 U.S. at 149, 95 S.Ct. 1504. Only the deliberative process privilege has been asserted here.

The deliberative process privilege exempts from disclosure documents reflecting predecisional agency deliberations. The privilege is designed to encourage frank and uninhibited communication among government officials in the course of creating public policy. Sears, 421 U.S. at 149-51, 95 S.Ct. 1504. Essentially, this exemption serves

to 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; to protect against premature disclosure of proposed policies before they have been formally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action.

Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C.Cir.1980).

In order for the deliberative process privilege to apply, the document in question must be both predecisional and deliberative, meaning that it must be (1) "antecedent to the adoption of an agency policy," Jordan v. United States Dep't of Justice, 591 F.2d 753, 774 (D.C.Cir.1978), and (2) "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." Vaughn, 523 F.2d at 1144. Purely factual information is generally considered non-deliberative and is not typically covered by this exemption. See Coastal States, 617 F.2d at 867. Such information must therefore be disclosed even when contained in an otherwise protected document, unless the factual material is "inextricably intertwined" with, or incapable of being segregated from, the exempt material. See Army Times Publ'g Co. v. Dep't of Air Force, 998 F.2d 1067, 1071 (D.C.Cir.1993) ("Exemption 5 applies only to the deliberative portion of a document and not to any purely factual, non-exempt information the document contains. Non-exempt information must be disclosed if it is reasonably segregable from exempt portions of the record, and the agency bears the burden of showing that no such segregable information exists.") (internal quotations omitted). "[T]he key question in Exemption 5 cases [is] whether the disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Dudman Communications Corp. v. Dep't of the Air Force, 815 F.2d 1565, 1568 (D.C.Cir.1987).

With these guiding principles in mind, the Court has reviewed the document in camera and concluded that defendant has improperly withheld this memorandum. As plaintiff correctly argues, the OGC memorandum is analogous to the Technical Assistance memoranda ("TAs") ordered released in Tax Analysts v. Internal Revenue Service, 294 F.3d 71 (D.C.Cir. 2002) ("Tax Analysts II"), and as such, it is neither predecisional nor deliberative. In Tax Analysts II, the Court addressed FOIA requests for the...