Karnoski v. Trump
| Decision Date | 12 May 2020 |
| Docket Number | CASE NO. C17-1297 |
| Court | U.S. District Court — Western District of Washington |
| Parties | RYAN KARNOSKI, et al., Plaintiffs, v. DONALD J TRUMP, et al., Defendants. |
This matter comes before the Court on Defendants' submission of documents for in camera review pursuant to the Court's Order on Plaintiffs' Motion to Compel the Government's Withheld Communications with Third Parties. (Dkt. Nos. 438, 454, 461, 462.) The Special Master, having reviewed the approximately 1,500 pages of documents the Government filed with the Court, and the Court having conferred with the Master, finds that the deliberative process privilege may only apply to one of the documents submitted for review: "Gender Dysphoria Medical Utilization Comparison Methodology With Summary of Results" ("PrivWithhold page numbers 110-119 and its duplicate copies). Further, only the email chains attached as Exhibit 6 to the Carmichael Declaration (Dkt. No. 462) are protected by the attorney-client privilege and/or attorney work product. No other privileges were properly asserted. Accordingly, the Court ORDERS:
This case involves challenges to the Trump Administration's decision to bar transgender troops from serving or enlisting to serve in the United States Armed Forces ("Mattis policy"), effectively reversing the policy adopted in 2016 ("Carter policy"). In February, upon suspicion that the Government had erroneously asserted the deliberative process privilege and attorney-client privilege over communications with third parties, Plaintiffs identified 487 custodians from Defendants' privilege logs who were potential third parties and asked the Government to produce all communications with those third parties, as neither privilege would apply to those communications. (Dkt. No. 438 at 7.) In the alternative, Plaintiffs moved to compel the Government to revise its privilege logs to assert appropriate privileges over thosedocuments and provide sufficient information to allow Plaintiffs to assess the identities of the 487 custodians. (Id.) In response, the Government argued that its communications with those third parties are shielded by the "consultant corollary" doctrine, which states that communications with third parties solicited by the Government to aid in its decision-making process are privileged. All. For the Wild Rockies v. Pena, 2017 WL 8778579, at *4-5 (E.D. Wash. Dec. 12, 2017).
The Court granted Plaintiffs' motion, and to the extent the Government claimed privilege, ordered a privilege log be prepared, and privilege-claimed documents be submitted for in camera review. Where the Defendants asserted the consultant corollary privilege, the Court ordered Defendants to establish that (1) the third party was contacted to assist the agency in its decision-making process; (2) "the consultant[] [was] hired or solicited by the agency to provide neutral advice and did not . . . 'represent . . . the interest of any other client, when it advise[d] the agency that hire[d] it.'" Friends of the Earth v. United States Army Corps of Eng'rs, 374 F. Supp. 3d 1045, 1054 (W.D. Wash. 2019) (quoting Department of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 11 (2001)); and (3) that any communications the Government seeks to protect are indeed deliberative and pre-decisional. (Dkt. No. 454 at 5.)
The Government submitted approximately 1,500 pages of documents, representing communications from only 14 of the the 487 persons identified by Plaintiffs. The submitted documents fit into three categories: (1) The RAND Corporation ("RAND") documents relating to the preparation and release of the Carter policy and the RAND Report, both publicly released on June 30, 2016, (Dkt. No. 505 at 6); (2) the Kennell documents from Kennell & Associates ("Kennell"), a consulting group that assisted the DoD with the Carter policy and the subsequent Mattis policy; and (3) email chains attached to the Carmichael declaration. (Dkt. No. 462.)Each page, except for the email chains attached to the Carmichael Declaration, bears a separate page notation "PrivWithhold," which the Court will use to identify specific documents in the analysis that follows.
Defendants claim that there are 70 documents and communications between RAND and DoD officials to which the deliberative process privilege should attach. (Easton Decl., ¶ 13.) These documents bear the PrivWithhold page designations of 638-1414. Defendants twice asserted the deliberative process privilege applies to the actual RAND Report, although it was made available to the public. (Dkt. No. 505 at 5.) Indeed, one of the copies makes it clear that the RAND Report could be purchased for $22.50. (See PrivWithhold 1245.)
As noted above, the RAND Report was released publicly on June 30, 2016, the same date that the Carter policy was officially adopted. (Dkt. No. 505 at 7.) At some time during the process of preparing the Carter policy, the Government decided that the RAND Report was going to be made available to the public. The Government chose not to identify that date for the Court. However, there are at least some clues.
For instance, Agnes Schaefer, the lead contact for RAND, wrote her DoD counterpart:
I have begun to rework the transgender briefing per our discussion (please see attached file). I have reorganized the material into the new shell and I have begun to go through and eliminate the jargon, as well as boil down the findings so that they are less academic. Knowing that these slides may go to a broader audience, the flavor of this revised briefing feels much better to me. Look forward to talking with you in the morning.
(PrivWithhold 1106 (emphasis added).) A fair inference from this document is that at least as early as February 2016, the DoD and the consultants were aware that the ultimate audience would be greater than simply the DoD decision-makers. The document also suggests that as of this date public release of the work was expected by both parties.
When asked about this, the Government asserts that it "understand[s] that language to refer to a broader audience within DoD, not a broader audience of the public." (Dkt. No. 505 at 5.) The Court finds this unpersuasive because it fails to address Ms. Schaefer's goal of eliminating "the jargon"; a broader audience within the DoD would be familiar with military jargon and abbreviations. The Government has offered nothing from either RAND (with whom it continues to do business) nor from the DoD to support its assertion.
The Government also contends that (Dkt. No. 505 at 7-8.)
The Government misses the point. Presumably at least by February 6, 2016, the Government and RAND knew that the RAND Report was going to be made public, along with the Carter policy. In fact, they were released the same day, a further indication that both consultants and the government were aware of what the other was planning. Hence, the underlying basis of the deliberative process privilege is not impacted by the release of any RAND documents, at least those as early as February 2016.1
In an appeal in this case, the Ninth Circuit discussed the status of the deliberative process privilege.
The deliberative process privilege ... still commands judicial consideration. We have held that '[a] litigant may obtain deliberative materials if his or her need for the materials and the need for accurate fact-finding override the government's interest in non-disclosure." (citing Warner). As the district court here correctlyrecognized, we balance four factors in determining whether this exception to the deliberative process privilege is met "1) the relevance of the evidence: 2) the availability of other evidence; 3) the government's role in the litigation; and 4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions."
Karnoski v. Trump, 926 F.3d 1180, 1206 (9th Cir. 2019). The Court held the first two factors favored plaintiffs but directed further review by this Court on the first2 and fourth factor. As to the fourth factor, the Government has submitted only a boilerplate claim of harm:
The release of DoD's communications with RAND and Kennell would have a harmful chilling effect on the DoD's future deliberations. The DoD decision-making process apparatus relies on open and candid conversations between DoD officials and nongovernmental consultants to address many of the difficult and complicated decisions that DoD faces. If such deliberations were disclosed, even pursuant to a protective order, DoD officials who interact with retained consultants would be less willing to engage in full and frank discussions about policy. Indeed, if DoD personnel knew that their thoughts, impressions, and opinions conveyed to contractors like...
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