Am. Oversight v. U.S. Dep't of Health & Human Servs.

101 F.4th 909

AMERICAN OVERSIGHT, Appellant v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICESand Office of Management and Budget, Appellees

No. 22-5281

United States Court of Appeals, District of Columbia Circuit

Argued September 29, 2023

Decided May 17, 2024

Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-00827)

Jessica Anne Morton argued the cause for appellant. With her on the briefs were Katherine M. Anthony and Mehreen A. Rasheed.

Nikhel S. Sus was on the brief for amicus curiae Citizens for Responsibility and Ethics in Washington in support of appellant.

Bruce D. Brown, Katie Townsend, and Adam A. Marshall were on the brief for amicus curiae The Reporters Committee for Freedom of the Press in support of appellant.

Benjamin M. Shultz, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Mark B. Stern, Attorney.

Before: Pillard, Wilkins, and Garcia, Circuit Judges.

Opinion concurring in part and dissenting in part filed by Circuit Judge Wilkins.

Garcia, Circuit Judge:

The Freedom of Information Act ("FOIA") requires federal agencies to make their records available to the public, subject to nine exemptions for specific categories of material. Exemption 5 protects "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).

This case concerns the meaning of "intra-agency." Under the "consultant corollary" to Exemption 5, first endorsed by this court in 1971, we have held that the term encompasses nearly all documents used by an agency in its deliberative process, even if the author or recipient is not an employee of that same agency. In Department of Interior v. Klamath Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001), the Supreme Court expressed skepticism about the breadth of that doctrine. The Court emphasized that the term intra-agency must be given "independent vitality" and suggested that Exemption 5 might extend at most to documents from outsiders that are similarly situated to agency employees in that they have no independent stake in the matter under discussion. See id. at 11-12, 121 S.Ct. 1060.

Since Klamath, we have not had to decide whether agencies may invoke Exemption 5 to withhold agency records generated by a government consultant with its own stake in the outcome of the agency's decision-making process. Presented with the question, we conclude they may not.

In this case, two Executive Branch agencies invoked Exemption 5 to withhold communications with members of Congress and their staffs during negotiations over potential healthcare reform legislation. Because the record shows Congress had an independent stake in that subject and did not provide disinterested advice as an agency employee would, we conclude that Exemption 5 does not apply to the records at issue and reverse the district court.

I

In early 2017, House Republican leaders sought to repeal the Affordable Care Act. While the effort was gaining steam, American Oversight filed two identical FOIA requests with the Department of Health and Human Services ("HHS") and the Office of Management and Budget ("OMB"). The requests sought communications "relating to healthcare reform" between each agency and Congress. J.A. 32, 40. The agencies did not timely respond to the requests, so American Oversight filed suit in the district court, which soon ordered the agencies to make rolling productions.

The agencies made those productions for several months before reaching an impasse with American Oversight. Invoking Exemption 5, HHS and OMB refused to disclose certain communications between the agencies and Congress as "intra-agency memorandums or letters." 5 U.S.C. § 552(b)(5).

The parties filed competing motions for summary judgment on that issue. The agencies argued that Exemption 5 applied because the communications were between Trump Administration officials and Republican members of Congress, and their staffs, who shared the "goal of repealing and replacing" the Affordable Care Act. See Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment at 20, Am. Oversight, Inc. v. U.S. Dep't of Health & Hum. Servs., No. 17 Civ. 827 (EGS) (DAR), 2022 WL 1719001 (D.D.C. May 27, 2022).

American Oversight acknowledged that, under our consultant corollary case law, Exemption 5's term "intra-agency" can be read to include some scenarios where an outside consultant assists an agency in carrying out the agency's functions. But here, it argued, the consultant corollary could not apply. According to American Oversight, Congress and its staffers were not functioning in a consultative capacity—they were negotiating with a co-equal branch of government to pass a new healthcare law, each side bringing its own interests to bear. In American Oversight's view, that certain members of Congress and the agencies shared a common goal to pass healthcare reform could not transform the cross-branch communications into "intra-agency" ones for purposes of Exemption 5.

The district court sided with the agencies and found nearly all the withholdings proper. The district court observed that in Klamath's wake, district courts in this Circuit have taken different approaches to the consultant corollary's scope. Some cases have required that outside consultants lack an "independent interest" in the subject that they discuss with the agency. See Am. Oversight, Inc., 2022 WL 1719001, at *13 (citing Am. Oversight v. U.S. Dep't of Health & Hum. Servs., 380 F. Supp. 3d 45, 54-55 (D.D.C. 2019)). Others have protected communications with outside consultants having such an interest, so long as the consultant and agency share overriding common goals. Id. (citing Jud. Watch, Inc. v. U.S. Dep't of State, 306 F. Supp. 3d 97, 111 (D.D.C. 2018)). The district court explained that depending on which line of cases it followed, the outcome here would be different. Under the first line of cases, American Oversight would win. See id. But under the second, the agencies would win. See id. The district court chose the latter course, and therefore held that the communications were protected from disclosure under Exemption 5. See id. at *12-15.

Separate from the Exemption 5 issue, American Oversight also challenged the adequacy of HHS's (but not OMB's) search for responsive records, arguing that HHS improperly omitted certain terms from its search. Each party moved for summary judgment, and the district court ruled for HHS. Id. at *11-12.

American Oversight appeals both rulings. Our review is de novo. Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 361 (D.C. Cir. 2021).

II

Congress enacted FOIA in 1966 to give the public "access to official information long shielded unnecessarily from public view." Env't Prot. Agency v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). The Act requires government agencies to make information available upon request unless the information is protected by one of nine statutory exemptions. 5 U.S.C. § 552(b). We recognize FOIA's "goal of broad disclosure" and give the exemptions "a narrow compass." U.S. Dep't of Just. v. Tax Analysts, 492 U.S. 136, 151, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989); see FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982).

The agencies here have invoked Exemption 5. 5 U.S.C. § 552(b)(5). Exemption 5 protects certain kinds of agency records under two conditions. It applies to (1) "inter-agency or intra-agency memorandums or letters" that (2) "would not be available by law to a party other than an agency in litigation with the agency." Id. On appeal, American Oversight does not dispute the government's claim that the second condition is satisfied because the records at issue are subject to the deliberative-process privilege, which protects certain documents used in government decision-making processes. See Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257 (D.C. Cir. 1982).

The parties' disagreement centers instead on the first condition, which requires the records to be either "interagency" or "intra-agency." The parties agree that the records are indisputably not "inter-agency." Congress is explicitly excluded from the statute's definition of "agency." 5 U.S.C. § 551(1)(a). The question, then, is whether the records can qualify as "intra-agency."

One might think that the statutory text yields a straightforward "no." The communications and documents, after all, were not authored by and exchanged between a single agency's employees. But under the "consultant corollary," our court and others have long treated Exemption 5's coverage of "intra-agency" records as extending beyond just that category.

We first endorsed the corollary in Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), to account for the reality that agencies often rely on outside experts for advice in their deliberative processes. We explained that "[t]he Government may have a special need for the opinions and recommendations of temporary consultants, and those individuals should be able to give their judgments freely without fear of publicity." Id. at 1078 n.44. An outsider's report can accordingly "be treated as an intra-agency memorandum of the agency which solicited it" for purposes of Exemption 5. Id. Other circuits followed suit. See Lead Indus. Ass'n, Inc. v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979) ("[W]e have nothing that can usefully be added to Chief Judge Bazelon's statement in Soucie . . . ."); Hoover v. Dep't of the Interior, 611 F.2d 1132, 1138 (5th Cir. 1980).

Over the years, we applied the consultant corollary to protect records an agency exchanged with non-agency outsiders. Although our cases often cited additional considerations, the dominant one guiding the doctrine's application was whether the record was ...