Lawyers' Comm. for Civil Rights v. U.S. Office of Mgmt. & Budget

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LAWYERS' COMMITTEE FOR CIVIL RIGHTS, et al., Plaintiffs, v. U.S. OFFICE OF MANAGEMENT AND BUDGET, Defendant.

Civ. No. Action 18-645 (EGS)

United States District Court, District of Columbia

May 12, 2023

MEMORANDUM OPINION

EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE.

I. Introduction

Plaintiffs the Lawyers' Committee for Civil Rights and the National Women's Law Center (collectively “Plaintiffs”) filed this action against the U.S Office of Management and Budget (“OMB,” “Defendant,” or the “agency”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. See generally Compl., ECF No. 1.^[1]Plaintiffs seek agency records regarding OMB's decision to halt its initiative for the collection of pay data from employers by the Equal Employment Opportunity Commission (“EEOC”). See id. ¶ 1.

On November 24, 2020, the Court denied in part without prejudice and held in abeyance in part OMB's Motion for Summary Judgment. See Lawyers' Comm. for C.R. v. U.S. Off. of Mgmt. & Budget, No. 18-CV-645 (EGS), 2020 WL 6887689, at *1 (D.D.C. Nov. 24, 2020). The Court also ordered the parties to submit supplemental briefing “addressing the foreseeable harm standard, along with any supplemental evidence Defendant may wish to provide.” Minute Order (Dec. 30, 2020).

Upon careful consideration of OMB's motion, the opposition, and reply thereto, the supplemental briefing, the applicable law, and the entire record herein, the Court hereby GRANTS OMB's Motion for Summary Judgment, see ECF No. 26.

II. Background

A. Factual

On September 20, 2017, Plaintiffs submitted five FOIA requests to OMB to obtain information about an order issued by OMB's Office of Information and Regulatory Affairs under the Paperwork Reduction Act, 44 U.S.C. § 3501 et seq., to initiate an indefinite stay and review of the EEOC's collection of pay data through its updated EEO-1 form. See Pls.' Counter-Statement of Material Facts as to Which There is No Genuine Issue (“SOMF”), ECF No. 29-1 ¶¶ 1-2. OMB has since disclosed 42 documents with redactions and withheld 23 documents in full. See Ex. G-OMB's Revised Vaughn List, Reply Ex. 1 (“Vaughn Index”), ECF No. 30-1 at 127-46. The agency justifies its withholding of this information under FOIA Exemption 5 and the deliberative process privilege. See SOMF, ECF No. 29-1 ¶ 3.

B. Procedural

On September 18, 2019, OMB filed its Motion for Summary Judgment. See Def.'s Mot. Summ. J., ECF No. 26; Mem. P. & A. in Supp. Def.'s Mot. Summ. J. (“Def.'s Mot.”), ECF No. 26-1. Plaintiffs filed a brief in opposition on October 25, 2019, see Pls.' Mem. P. & A. in Opp'n Def.'s Mot. Summ. J. (“Pls.' Opp'n”), ECF No. 29; and OMB submitted a reply brief on November 8, 2019, see Reply in Supp. Def.'s Mot. Summ. J. (“Def.'s Reply”), ECF No. 30.

The Court issued a Memorandum Opinion on November 24, 2020, denying the motion in part on the issue of whether OMB properly invoked the deliberative process privilege and holding the motion in abeyance in part on the issue of whether OMB released all reasonably segregable information. See Lawyers' Comm., 2020 WL 6887689, at *4. The Court thereafter ordered OMB to file supplemental briefing “addressing the foreseeable harm standard, along with any supplemental evidence Defendant may wish to provide.” Minute Order (Dec. 30, 2020).

OMB filed its supplemental brief on February 17, 2021, see Def.'s Suppl. Br., ECF No. 36, and a new declaration from Heather V. Walsh (“Ms. Walsh”), Deputy General Counsel in OMB's Office of the General Counsel (“OGC”), see Third Decl. of Heather V. Walsh (“Third Walsh Decl.”), ECF No. 36-1. On March 10, 2021, Plaintiffs submitted an opposition brief, see Pls.' Suppl. Br., ECF No. 37; and OMB replied on March 24, 2021, see Reply in Supp. Def.'s Suppl. Br., ECF No. 38. The motion is now ripe and ready for adjudication.

III. Legal Standard

A. FOIA

FOIA cases are typically and appropriately decided on motions for summary judgment. Gold Anti-Tr. Action Comm., Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 762 F.Supp.2d 123, 130 (D.D.C. 2011) (citation and internal quotation marks omitted). Summary judgment is warranted “if the movant shows [by affidavit or other admissible evidence] 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). A party opposing a summary judgment motion must show that a genuine factual issue exists by “(A) citing to particular parts of materials in the record . . . or (B) showing that the materials cited do not establish the absence . . . of a genuine dispute.” Fed.R.Civ.P. 56(c). Any factual assertions in the moving party's affidavits will be accepted as true unless the opposing party submits his own affidavits or other documentary evidence contradicting the assertion. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

However, “the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks omitted).

An agency has the burden of demonstrating that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements.” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (per curiam) (citation and internal citation marks omitted). In reviewing a summary judgment motion in the FOIA context, the court must conduct a de novo review of the record, see 5 U.S.C. § 552(a)(4)(B); but may rely on agency declarations, see SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Agency affidavits or declarations that are “relatively detailed and non-conclusory . . . are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” Id. (citation and internal quotation marks omitted). “The Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they 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.'” Sierra Club v. U.S. Fish & Wildlife Serv., 523 F.Supp.3d 24, 31-32 (D.D.C. 2021) (quoting Mil. Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)).

B. FOIA Exemptions

Congress enacted FOIA to “‘open up the workings of government to public scrutiny through the disclosure of government records.'” Jud. Watch, Inc. v. U.S. Dep't of Com., 375 F.Supp.3d 93, 97 (D.D.C. 2019) (quoting Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984)). Although the legislation is aimed toward “open[ness] . . . of government,” id.; Congress acknowledged that “legitimate governmental and private interests could be harmed by release of certain types of information,” Critical Mass. Energy Project v. Nuclear Regul. Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (citation and internal quotation marks omitted). As such, pursuant to FOIA's nine exemptions, an agency may withhold requested information. 5 U.S.C. § 552(b)(1)-(9). However, “[b]ecause FOIA establishes a strong presumption in favor of disclosure, requested material must be disclosed unless it falls squarely within one of the nine exemptions carved out in the Act.” Burka v. U.S. Dep't of Health & Hum. Servs., 87 F.3d 508, 515 (D.C. Cir. 1996) (citations omitted).

“The agency bears the burden of justifying any withholding.” Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 74 (D.D.C. 2007). “To enable the Court to determine whether documents properly were withheld, the agency must provide a detailed description of the information withheld through the submission of a so-called ‘Vaughn index,' sufficiently detailed affidavits or declarations, or both.” Hussain v. U.S. Dep't of Homeland Sec., 674 F.Supp.2d 260, 267 (D.D.C. 2009) (citations omitted). Although there is no set formula for a Vaughn index, the agency must “disclos[e] as much information as possible without thwarting the exemption's purpose.” King v. Dep't of Just., 830 F.2d 210, 224 (D.C. Cir. 1987). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” Jud. Watch, Inc. v. U.S. Dep't of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (per curiam) (citation and internal quotation marks omitted).

IV. Analysis

FOIA Exemption 5 shields from disclosure “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). A document will fall under Exemption 5 if it meets two conditions: “‘its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.'” Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 733 (D.C. Cir. 2008) (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001)). Accordingly, this exemption incorporates various common-law privileges, including the deliberative process privilege. Jud. Watch, Inc. v. Dep't of Energy, 412 F.3d 125, 129 (D.C. Cir. 2005) (quoting Bureau of Nat'l Affs. v. Dep't of Just., 742 F.2d 1484, 1496 (D.C. Cir. 1984)).

To assert the privilege, the agency must establish that the document at issue is both “predecisional and deliberative.” Machado Amadis v. U.S. Dep't of State, 971 F.3d 364, 370 (D.C. Cir. 2020). A document is...