Nat'l Ass'n of Minority Veterans v. United States Dep't of Veterans Affairs

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NATIONAL ASSOCIATION OF MINORITY VETERANS, Plaintiff, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.

Civil Action No. 21-1298 (RC)

United States District Court, District of Columbia

February 27, 2024

MEMORANDUM OPINION

RE DOCUMENT NO.: 37, 40

GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

Plaintiff National Association of Minority Veterans (the “Association”) brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against the United States Department of Veterans Affairs (the “VA”). The Association, which represents the interests of minority veterans, seeks to compel disclosure of VA records pertaining to the policies and practices of the VA Police Force at Veterans Health Administration facilities. The Association claims that these documents were unlawfully withheld by the VA. Earlier in this case, the Association and the VA filed competing motions for summary judgment; the Court denied the VA's motion and granted in part and denied in part the Association's motion. See generally Nat'l Ass'n of Minority Veterans v. United States Dep't of Veterans Affs., 642 F.Supp.3d 83 (D.D.C. 2022). Subsequently, the VA disclosed some of the records the Association seeks but has withheld others pursuant to FOIA Exemptions 3, 5, 6, and 7(E). The parties' dispute now centers solely on (1) redacted answers and follow up communications related to Office of Inspector General (“OIG”) surveys, (2) a large excel spreadsheet-withheld in full-containing information compiled from VA Police Force records, and (3) a large excel spreadsheet- withheld in full-containing information compiled from VA patient health records.

Before the Court are the VA's renewed motion for summary judgment, ECF No. 37-1 (“MSJ”), the Association's renewed cross-motion for summary judgment, ECF No. 40-1, (“Cross-MSJ”), and the parties' respective responses and replies. After the parties filed their motions, this Court ordered the VA to submit the withheld and redacted records for in camera review. See In Camera Review Order, ECF No. 47. After reviewing the parties' briefs and the documents in camera, the Court grants in part and denies in part the VA's motion for summary judgment and grants in part and denies in part the Association's motion for summary judgment.

II. BACKGROUND

The Court presumes familiarity with the factual and procedural background described in its prior opinion, see Nat'l Ass'n of Minority Veterans, 642 F.Supp.3d at 86, but briefly summarizes subsequent developments as relevant here. After the Court's previous opinion and order, the VA searched for and identified records responsive to the Association's FOIA request. See MSJ at 4-5; Cross-MSJ at 2. The VA released some responsive records, but withheld and redacted others under FOIA Exemptions 3, 5, 6, and 7. See MSJ at 4-5; Cross-MSJ at 2. Specifically, the VA redacted some questions, answers, and follow up communications related to two OIG surveys and withheld in full two excel spreadsheets compiled in preparation for OIG reports. See generally Vaughn Index, ECF No. 37-3; MSJ at 12, 13; Cross-MSJ at 2; Def.'s Reply in Support of Mot. for Summ. J. (“Def.'s Reply”) at 6, ECF No. 43; Pl.'s Reply in Support of Cross Mot. for Summ. J. (“Pl.'s Reply”) at 1, ECF No. 46. The Association argues that the VA's withholdings were not justified by FOIA Exemption 5 and Exemption 7(E). See Cross-MSJ at 1; Pl.'s Reply at 1. Unable to resolve their dispute, both parties moved for summary judgment. After the parties filed their renewed summary judgment briefs, the Court ordered the VA to submit the withheld and redacted records for in camera review. See In Camera Review Order. With briefing and in camera review of the disputed documents complete, the parties' cross-motions are now ripe for resolution.

III. LEGAL STANDARD

FOIA is designed “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (quotation omitted). It “directs that ‘each agency, upon any request for records . . . shall make the records promptly available to any person' unless the requested records fall within one of the statute's nine exemptions.” Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting 5 U.S.C. § 552(a)(3)(a)). “FOIA expressly recognizes that important interests are served by its exemptions and those exemptions are as much a part of FOIA's purposes and policies as the statute's disclosure requirement.” Food Mktg. Inst. v. Argus Leader Media, 139 S.Ct. 2356, 2366 (2019) (cleaned up). Nevertheless, “[t]he 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). “This burden does not shift even when the requester files a cross-motion for summary judgment because ‘the Government ultimately has the onus of proving that the documents are exempt from disclosure. . .'” Hardy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 243 F.Supp.3d 155, 162 (D.D.C. 2017) (cleaned up) (quoting Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904-05 (D.C. Cir. 1999)).

FOIA cases “are typically and appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F.Supp.2d 6, 12 (D.D.C. 2009) (citations omitted). Summary judgment is appropriate “if 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). At the summary judgment stage, the Court must “view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008) (citations omitted). “Typically, the agency demonstrates the applicability of a FOIA exemption by providing affidavits regarding the claimed exemptions.” Shapiro v. U.S. Dep't of Just., 893 F.3d 796, 799 (D.C. Cir. 2018). “[A]n agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Id. (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). Even if a FOIA exemption applies, however, an agency cannot withhold information unless it also “reasonably foresees that disclosure would harm an interest protected by” the relevant exemption. 5 U.S.C. § 552(a)(8)(A)(i)(I); see Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 369 (D.C. Cir. 2021) (explaining the FOIA Improvement Act of 2016's “foreseeable harm” requirement). And “even where exemptions apply, the VA must take reasonable steps necessary to segregate and release nonexempt information.” Nat'l Ass'n of Minority Veterans, 642 F.Supp.3d at 97 (quotation and citations omitted).

Here, the VA relies on FOIA Exemptions 3, 5, 6, and 7(E) to justify its redactions and withholdings. See MSJ at 4-5. The Association challenges only the VA's redactions and withholdings under Exemptions 5 and 7(E); it “does not contest the agency's withholdings under Exemption 6 and Exemption 3.” Cross-MSJ at 2-3, 25.^[1]

Exemption 5 authorizes the Government to withhold “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). One situation in which records “would not be available” is where those records are protected by the deliberative process privilege. Louise Trauma Ctr. LLC v. U.S. Dep't of Just., No. CV 20-3517, 2023 WL 6646335, at *2 (D.D.C. Oct. 12, 2023). “The deliberative process privilege protects documents that reflect an agency's decision-making process.” Id. at *3. “To be protected, however, the document must contain information that is both predecisional and deliberative.” Id. “Documents are ‘predecisional' if they were generated before the agency's final decision on the matter, and they are ‘deliberative' if they were prepared to help the agency formulate its position.” Id. (quoting United States Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S.Ct. 777, 786 (2021) (citation omitted)). “More specifically, a document is considered deliberative if it ‘reflects the give-and-take of the consultative process.'” Id. (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).

Exemption 7(E) protects from disclosure

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.

5 U.S.C. § 552(b)(7)(E). Hence, a record must satisfy three requirements to qualify for the exemption: (1) the record must be “compiled for law enforcement purposes”; (2) the record's release must disclose techniques, procedures, or guidelines used for law enforcement investigations or prosecutions; and (3) disclosure of those techniques, procedures, or guidelines must “reasonably be expected to risk circumvention of the law.” See Advancement Project v. U.S. Dep't of Homeland Sec., 549 F.Supp.3d 128, 142 (D.D.C. 2021).

With respect to Exemption 7(E)'s third requirement-i.e., that disclosure “could reasonably be expected to risk circumvention of the law”-“an Exemption 7(E) claimant must show a risk of circumvention of the law regardless of...