Louise Trauma Ctr. v. U.S. Dep't of Justice

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LOUISE TRAUMA CENTER LLC, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 20-3517 (RC)

United States District Court, District of Columbia

March 28, 2023

MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT RE DOCUMENT NOS.: 28, 31

RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

This matter arises out of a series of FOIA requests Plaintiff Louise Trauma Center LLC (the “Center”) made to the Department of Justice (“DOJ”) in 2019 and 2020. See generally Compl., ECF No. 1. After the Center filed a six-count Complaint to enforce its requests in December 2020, see Compl., DOJ processed them and the parties began negotiations, see Joint Status Reports, ECF Nos. 10, 11, 12, 13, 15. Unable to reach agreement as to Counts 2 and 4, the parties filed cross motions for summary judgment in the summer of 2021. See Pl.'s 1d Mot. Summ. J., ECF No. 14; Def.'s 1d Cross-Mot. Summ. J., ECF No. 17. The Court denied Plaintiff's motion and granted DOJ's cross-motion only as to Count 4, leaving Count 2 unresolved. See Louise Trauma Ctr. v. Dep't of Justice (“Louise Trauma I”), No. 20-cv-3517, 2022 WL 278771, at *3-4, 10 (D.D.C. Jan. 30, 2022). Thereafter, DOJ conducted multiple reviews of the withheld material and made additional productions, while continuing to withhold certain material. See Def.'s Statement of Material Facts in Supp. Renewed Mot. Summ. J. (“Def.'s 2d SMF”) at 3-5, ECF No. 28-1; Pl.'s Resp. Def.'s 2d SMF at 3-5, ECF No. 30-1. The parties' renewed cross-motions on the still-withheld material are ripe for review.^[1] See Def.'s Renewed Mot. Summ. J. (“Def.'s 2d MSJ”), ECF No. 28; Pl.'s Opp'n to Def.'s 2d MSJ and Cross-Mot. for Summ. J. (“Pl.'s Opp'n and Cross-MSJ”) ECF No. 31. For the reasons set forth below, the Court grants in part and denies in part DOJ's motion, denies the Center's cross-motion, and instructs DOJ to provide certain records to the Court for in camera review.

I. BACKGROUND

While the Court presumes familiarity with the factual and procedural background laid out in Louise Trauma 1, 2022 WL 278771, at *1-2, it briefly reiterates the most relevant facts before summarizing the parties' more recent efforts to resolve this matter. The FOIA request reflected in Count 2 of the Complaint sought “all records . . . concerning Office of Immigration Litigation training materials for lawyers in the appellate section.” See Ex. 2 to Compl., ECF No. 1-2; Compl. ¶ 14. The responding division of DOJ, the Office of Immigration Litigation-Appellate Section (“OIL-App”), “located 4,364 responsive pages, of which the Civil Division released 172 pages in full, released 24 pages with redactions, and withheld 4,168 pages and 12 videos in full pursuant to FOIA Exemptions 5 and 6.” Louise Trauma I, 2022 WL 278771, at *3.

In its first Motion for Summary Judgment, the Center did not contest that Exemption 6 was appropriately applied, so the Court focused on DOJ's justifications for invoking Exemption 5, see id. at *3 n.1., which protects documents that would be privileged in ordinary civil litigation, see Loving v. Dep't of Def., 550 F.3d 32, 37 (D.D.C. 2008).^[2] DOJ submitted a Vaughn Index justifying its withholdings under Exemption 5 on grounds that the withheld material was subject to the attorney work product privilege, the deliberative process privilege, and/or the attorney-client privilege, but the Court found that the “information provided [was] insufficient to allow the Court to make a de novo determination about the appropriateness of the withholdings.” Louise Trauma I, 2022 WL 278771, at *4. Accordingly, the Court denied both parties' motions as to Count 2 and extended DOJ “another opportunity to meet its burden.” Id.

Subsequently, DOJ conducted multiple reviews of the withheld material, see Def.'s 2d SMF at 3-5; Pl.'s Resp. Def.'s 2d SMF at 3-5, ECF No. 30-1, and “determined that 1,922 pages should be released in full, 12 videos and 443 pages should be released in part, and 1,404 pages should be withheld in full.” Decl. Elizabeth A. Wood (“Wood Decl.”) ¶ 7, ECF No. 28-2.^[3] As to the withheld material, DOJ continues to assert Exemption 5 through the attorney work product privilege, the deliberative process privilege, and/or the attorney-client privilege, as well as Exemption 6. Id. ¶ 12-13.

II. LEGAL STANDARD

Congress enacted FOIA to permit citizens to discover “what their government is up to.” U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (quoting EPA v. Mink, 410 U.S. 73, 105 (1973) (Douglas, J., dissenting)). After an agency “[conducts] a search reasonably calculated to uncover all relevant documents,” Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983), FOIA requires the agency to disclose responsive records revealed by the search, unless material in the records falls within one of FOIA's nine statutory exemptions, 5 U.S.C. § 552(b). See also Jud. Watch, Inc. v. U.S. Dep't of Def., 847 F.3d 735, 738 (D.C. Cir. 2017) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975)). “The agency bears the burden of establishing that a claimed exemption applies,” Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of Just., 746 F.3d 1082, 1088 (D.C. Cir. 2014) (citing Dep't of Just. v. Reps. Comm. For Freedom of the Press, 489 U.S. 749, 755 (1989)), and exemptions are “given a narrow compass,” U.S. Dep't of Just. v. Tax Analysts, 492 U.S. 136, 151 (1989).

“FOIA cases typically and appropriately are decided on motions for summary judgment.” Pinson v. Dep't of Justice, 236 F.Supp.3d 338, 352 (D.D.C. 2017) (quoting Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). Courts review agency withholdings de novo. See 5 U.S.C. § 552(a)(4)(B). In general, summary judgment is appropriate when “the movant shows 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 “material” fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a reasonable factfinder to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380 (2007). In a FOIA case, summary judgment is appropriate “if no material facts are genuinely in dispute and the agency demonstrates ‘that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information.'” Prop. of the People, Inc. v. Off. of Mgmt. and Budget, 330 F.Supp.3d 373, 380 (D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA, 232 F.Supp.3d 172, 181 (D.D.C. 2017)).

The reviewing court may grant summary judgment based on the record and agency declarations if “the agency's supporting declarations and exhibits describe the requested 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.'” Pronin v. Fed. Bureau of Prisons, No. 17-cv-1807, 2019 WL 1003598, at *3 (D.D.C. Mar. 1, 2019) (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal citation omitted)). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Scudder v. Cent. Intel. Agency, 254 F.Supp.3d 135, 140 (D.D.C. 2017) (quoting Jud. Watch, Inc. v. U.S. Dep't. of Def., 715 F.3d 937, 941 (D.C. Cir. 2013)).

III. ANALYSIS

The Center again does not contest the propriety of DOJ's limited withholdings pursuant to Exemption 6, see Pl.'s Opp'n and Cross-MSJ at 21, so the parties' cross-motions focus on the broader set of withholdings pursuant to Exemption 5. Exemption 5 of FOIA protects “interagency 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). The Supreme Court and the D.C. Circuit have construed Exemption 5 to exempt documents “normally privileged in the civil discovery context,” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see also Martin v. Off. of Special Couns., 819 F.2d 1181, 118 (D.C. Cir. 1987), including under the work product privilege, the deliberative process privilege, and the attorney-client privilege, see Brown v. Dep't of State, 317 F.Supp.3d 370, 376 (D.D.C. 2018) (quoting Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 2008)).

Here, DOJ asserts the work product privilege over the vast majority of the withheld material. It asserts the attorney-client privilege concurrently over a PowerPoint presentation titled, “Professional Responsibility Advisory Office Training Powerpoint” and independently over four other sets of withholdings. See Vaughn Index at 8, 17, 33, 50-51, ECF No. 29-1. It also asserts the deliberative process privilege over a significant number of records, but states that this is “secondary to the concurrently-applied Attorney Work-Product Doctrine and the Attorney-Client Communication Privilege, which cover the same records.” Def.'s Opp'n and Reply at 1, ECF No. 32. Accordingly, with one exception identified below,^[4] the Court only considers the deliberative process privilege in connection with a single withholding for which DOJ failed to adequately justify other concurrently asserted privileges.

A. Attorney Work Product Privilege

The attorney work product privilege “shields materials ‘prepared in...