Wright v. Admin. for Children & Families

• Decision Date: 11 October 2016
• Docket Number: Civil Action No. 15-218
• Parties: CHRIS WRIGHT, Plaintiff, v. ADMINISTRATION FOR CHILDREN AND FAMILIES, (U.S. Department of Health and Human Services), Defendant.
• Court: U.S. District Court — District of Columbia

CHRIS WRIGHT, Plaintiff, v. ADMINISTRATION FOR CHILDREN AND FAMILIES,(U.S. Department of Health and Human Services), Defendant.

Civil Action No. 15-218

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

October 11, 2016

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

The plaintiff, Chris Wright, who is proceeding pro se, brings this lawsuit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the defendant Administration for Children and Families ("ACF"), which is a division of the U.S. Department of Health and Human Services ("HHS"), challenging the agency's response to his request for "information for use in news stories about unaccompanied alien children¹ . . . and the government's shelter program." Compl. ¶ 3, ECF No. 1; Answer ¶ 4, ECF No. 9. Having already granted partial summary judgment to HHS, pursuant to the parties' Joint Stipulation of Issues to be Briefed, ECF No. 12, see Order (Aug. 3, 2015), ECF No. 13, pending before the Court is HHS's Motion for Summary Judgment ("Def.'s Mot."), ECF No. 16, on the four remaining issues in the case. For the reasons set out below, HHS's motion is granted.

I. BACKGROUND

The plaintiff explains that "[t]his case relates to the 'border surge' in the summer of 2014, the high-profile influx of [unaccompanied alien children] which generated voluminous news coverage." Pl.'s Mem. P. & A. Opp'n Def.'s Mot. Summ. J. ("Pl.'s Opp'n") at 1, ECF No. 19. In a FOIA request transmitted via email on October 24, 2014, the plaintiff requested records from ACF regarding fifteen categories of information ("Items 1-15") related to "grant award 90ZU0102 in the amount of $190,707,505," made to Baptist Children and Family Services (now BCFS Health and Human Services) ("BCFS") for the provision of residential shelter services to unaccompanied alien children. Compl. Ex. 1 ("Pl.'s Request") at 1-2, ECF No. 1. Relevant here, one of those fifteen categories of information was described by the plaintiff as "[n]arrative status reports" ("Item 1"). Id. at 1. The plaintiff also requested five broader categories of information ("Items 16-20") "[w]ith respect to BCFS and related entities in general," regarding (a) "discussions of why these organizations maintain an office, employees, or agents outside of the United States"; (b) "BCFS' grants or assistance to foreign governments, organizations, and individuals"; (c) "BCFS' grants or assistance to governments, organizations and individuals in the United States for Education Training Vouchers [ETVs]"; (d) "BCFS' grants or assistance to governments, organizations and individuals in the United States for ORR allowance grants"; and (e) "discussion of BCFS' failure to properly report lobbying expenditures on its tax forms." Id. at 2.

On December 10, 2014, an ACF Freedom of Information Officer acted upon the plaintiff's email request by requesting a search for responsive records from the ACF Office of Refugee Resettlement ("ACF-ORR"), which "has jurisdiction over funding the unaccompanied minors residential services program and monitors grantee performance," and the ACF Office ofGrants Management ("ACF-OGM"), which "has jurisdiction over financial management and reporting for all ACF grant programs." Def.'s Mot., Ex. 1, Decl. of Kimberly N. Epstein ("Epstein Decl.") ¶¶ 10-11.

As of February 12, 2015, when the plaintiff filed the Complaint in this action, HHS had released no documents or information to the plaintiff in response to his request. See generally Compl.; Epstein Decl. ¶ 28. Between March 2, 2015, and September 2, 2015, however, HHS made fourteen separate releases of information in response to the plaintiff's request, totaling many hundreds of pages. Epstein Decl. ¶ 28; Pl.'s Opp'n at 2-3. These releases included, inter alia, financial reports, Performance Progress Reports ("PPRs"), Situation Reports, monitoring reports, internal memoranda, and emails among various ORR and ACF staff and executives regarding BCFS's grant award 90ZU0102. Epstein Decl. ¶ 28.

HHS construed the plaintiff's request for "narrative status reports" (Item 1), a term HHS does not itself use in categorizing its documents, as a request for PPRs and Situation Reports in connection with BCFS's grant award 90ZU0102. Id. ¶¶ 15-16. Employing that construction of the term, HHS released to the plaintiff, inter alia, "all [PPRs] concerning BCFS for grant number 90ZU0102" produced between July 7, 2014, the date the grant was awarded, and December 10, 2014, the date the search for responsive records commenced, Def.'s SMF ¶¶ 9, 16, as well as all Situation Reports sent by BCFS to ACF-ORR Federal Field Specialists during that time frame, id. ¶¶ 19-22.

With respect to the plaintiff's requests for more generalized information regarding BCFS' domestic and foreign operations (Items 16-20), "OGM and ORR officials advised [the ACF FOIA Officer] that ACF does not routinely collect or maintain information responsive to [Items 16-20] as they are outside the scope of the relationship with the grantee." Epstein Decl. ¶ 26.Nevertheless, an electronic search of the ACF-OGM and ACF-ORR files containing grantee records and programmatic and financial reports was performed, using key words drawn from the request, i.e., "lobbying," "ETV," and "foreign government." Id. ¶¶ 23-24. According to HHS, no responsive documents were found. Id.

Many of the documents released to the plaintiff were partially redacted pursuant to FOIA Exemptions 4, 5, 6, and 7(C).² Id. ¶ 28. In August and September 2015, upon the determination that Exemption 5 did not actually apply, HHS voluntarily released full, non-redacted versions of two documents that were initially released to the plaintiff with redactions under FOIA Exemption 5. Id. The two documents that remain partially redacted under Exemption 5, as listed in the agency's Vaughn Index, consist of emails compiled from the accounts of various agency officials, with redactions on about half, or nineteen, of the thirty-nine total pages. Def.'s Mot. Ex. 3, Vaughn Index, ECF No. 16-3. Larger portions of these documents were redacted when initially released on July 20, 2015 and July 22, 2015, but those were later supplemented with versions containing fewer redactions, released on July 27, 2015 and August 18, 2015, respectively, to "provide consistent disclosure." Epstein Decl. ¶ 28.

II. LEGAL STANDARD

Congress enacted the FOIA as a means "to open agency action to the light of public scrutiny," ACLU v. U.S. Dep't of Justice, 750 F.3d 927, 929 (D.C. Cir. 2014) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)), and "to promote the 'broad disclosure of Government records' by generally requiring federal agencies to make their records available tothe public on request," DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citing U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)). As the Supreme Court has "consistently recognized[,] . . . the basic objective of the Act is disclosure." Chrysler Corp. v. Brown, 441 U.S. 281, 290 (1979). At the same time, the statute represents a "balance [of] the public's interest in governmental transparency against legitimate governmental and private interests [that] could be harmed by release of certain types of information." United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (internal quotation marks and citations omitted). Reflecting that balance, the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which "are explicitly made exclusive and must be narrowly construed." Milner v. U.S. Dep't of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted) (citing FBI v. Abramson, 456 U.S. 615, 630 (1982)); see Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice ("CREW"), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). "[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Rose, 425 U.S. at 361.

The agency invoking an exemption to the FOIA has the burden "to establish that the requested information is exempt." Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979); see U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755 (1989); DiBacco, 795 F.3d at 195; CREW, 746 F.3d at 1088; Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014), cert. denied sub nom. Elec. Frontier Found. v. Dep't of Justice, 135 S. Ct. 356 (2014); Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). To carry this burden, an agency must submitsufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents,³ or both, to demonstrate that the government has analyzed carefully any material withheld, to enable the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the adversary system to operate by giving the requester as much information as possible, on the basis of which the requester's case may be presented to the trial court. See Oglesby v. U.S. Dep't of Army (Oglesby II), 79 F.3d 1172, 1176 (D.C. Cir. 1996) ("The description and explanation the agency offers should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection . . . [which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency's decision." (citation omitted)); see also CREW, 746 F.3d at 1088 ("The agency may carry that burden by submitting affidavits 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...