Protect Democracy Project, Inc. v. U.S. Dep't of Health & Human Servs.

569 F.Supp.3d 25

PROTECT DEMOCRACY PROJECT, INC., Plaintiff,

v.U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES, Defendant.

Civil Action No. 17-792 (RDM)

United States District Court, District of Columbia.

Signed September 13, 2021

Benjamin Leon Berwick, The Project Democracy Project, Inc., Watertown, MA, David H. Bernstein, Matthew D. Forbes, Pro Hac Vice, Sebastian P. Dutz, Pro Hac Vice, DeBevoise & Plimpton LLP, New York, NY, for Plaintiff.

James O. Bickford, U.S. Department of Justice, Civil Division, Johnny Hillary Walker, III, DOJ-CIV, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Plaintiff Protect Democracy Project, Inc. ("Protect Democracy") brings this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking to compel the Department of Health and Human Services to release records related to the discontinuation of advertising for healthcare.gov, the federal health insurance marketplace, during the final weeks of the 2016–2017 open enrollment period. The case is now before the Court on the parties’ renewed cross-motions for summary judgment. See Dkt. 43; Dkt. 45.

The sole remaining issue is whether the Department lawfully redacted portions of 13 records pursuant to the deliberative process privilege and FOIA Exemption 5. For the reasons explained below, the Court concludes that the Department has met its burden with respect to one of these records but that in camera review is necessary for the remaining 12. Accordingly, the Court will GRANT in part and DENY in part, without prejudice, the Department's motion for summary judgment; DENY without prejudice Protect Democracy's cross-motion for summary judgment; and ORDER the Department to provide the Court with unredacted copies of the 12 documents identified below for ex parte, in camera review.

I. BACKGROUND

On February 15, 2017, Protect Democracy submitted a FOIA request to the Department seeking the following records:

(1) Documents between and among employees of the Department of Health and Human Services ("HHS") and/or the Centers for Medicare and Medicaid Services ("CMS") "concerning the decision to discontinue advertising for healthcare.gov and/or enrollment in healthcare coverage;"

(2) Documents between the HHS and/or CMS transition teams and the White House concerning the same;

(3) Documents between and among employees of HHS and/or CMS "concerning the effect of the Trump Administration's decision to discontinue the advertising detailed above on enrollment numbers;"

(4) Documents between and among employees of the HHS Office of Public Affairs and/or CMS Offices of Communications "concerning the article published by Politico on January 26, 2017 entitled, ‘Trump White House Abruptly Halts Obamacare Ads;’ "

(5) Documents between and among employees of HHS and/or CMS "concerning the number of people who enrolled in healthcare coverage after President Trump took office;" and

(6) Documents between HHS and/or CMS employees and the White House concerning the same.

Dkt. 1 at 2–3 (Compl. ¶ 5). When the Department did not timely respond, see 5 U.S.C. § 552(a)(6)(A)(i), Protect Democracy commenced this action, see Dkt. 1 (Compl.).

The Department eventually conducted a search for responsive records and released 274 pages of records to Protect Democracy, redacting certain portions under FOIA Exemption 5. Dkt. 18-1 at 7. On December 15, 2017, the Department moved for summary judgment, Dkt. 18, and on January 23, 2018, Protect Democracy filed a cross-motion for summary judgment, Dkt. 20. In its cross-motion, Protect Democracy argued that (1) the Department did not conduct an adequate search, and (2) the Department unlawfully redacted numerous records pursuant to FOIA Exemption 5. Id. at 15.

The parties significantly narrowed the scope of their dispute over the course of briefing. After reviewing Protect Democracy's opposition and cross-motion, the Department requested an extension of time to file its final brief so that it could conduct further searches for responsive records, Dkt. 22, and the Court granted that request, Minute Order (Feb. 21, 2018). The Department then conducted supplemental searches and released an additional 256 pages of responsive records. Dkt. 27 at 12. The Department also reconsidered some of its prior withholdings and released unredacted copies of a handful of documents. Id. at 4. These releases had the effect of narrowing the parties’ dispute to whether certain records fell within the attorney-client privilege or deliberative process privilege, as the Department claimed. Id.

In a Memorandum Opinion and Order, the Court granted summary judgment in favor of the Department with respect to its attorney-client privilege withholdings but concluded that the Department's Vaughn indices had not provided the Court with sufficient detail about the deliberative process privilege withholdings to assess whether they were proper, and so the Court denied summary judgment as to those withholdings. Protect Democracy, Inc. v. HHS , 370 F. Supp. 3d 159, 169 (D.D.C. 2019) (" Protect Democracy I "). The Court also granted in part and denied in part Protect Democracy's cross-motion for summary judgment. Id. at 171–72. The Court explained that the same lack of detail that prevented the Court from "evaluat[ing] whether the redactions were lawful" also left the Court unable to conclude that "Exemption 5 [was] inapplicable or that the redacted material [was] not deliberative." Id. at 171. With one exception, the Court also denied Protect Democracy's request that the Court conduct an in camera review of the disputed records and, instead, ordered the Department to supplement its Vaughn indices and/or declarations to better explain the bases for its withholdings. Id. at 169, 172. The Department subsequently released revised versions of 12 records, with narrower redactions. See Dkt. 44 at 8.

On October 9, 2020, the Department renewed its motion for summary judgment, Dkt. 43, and, along with that motion, filed a supplemental Vaughn index providing additional detail concerning the withheld documents. Dkt. 43-3. Protect Democracy, in turn, filed a renewed cross-motion for summary judgment on October 29, 2021. Initially, Protect Democracy identified 23 records in which it believed the Department had unlawfully redacted responsive information. Over the course of briefing, the parties have since narrowed the scope of their disagreement to redactions in 13 records.

II. LEGAL STANDARD

The Freedom of Information Act supports a fundamental pillar of free societies: transparency in government. FOIA is premised on the notion that "an informed citizenry [is] vital to the functioning of a democratic society" and necessary to "check against corruption and hold the govern[ment] accountable." NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). The "general philosophy" of FOIA is "full agency disclosure." U.S. Dep't of Def. v. Fed. Labor Rels. Auth. , 510 U.S. 487, 494, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (quoting Dep't of Air Force v. Rose , 425 U.S. 352, 360, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ). Upon receiving a FOIA request, an agency must disclose all responsive records to the requestor unless those records fall within one of nine statutory exemptions. Id. ; see 5 U.S.C. § 552(b). "These exemptions are ‘explicitly made exclusive’ and must be ‘narrowly construed.’ " Milner v. Dep't of Navy , 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (first quoting EPA v. Mink , 410 U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) ; and then quoting FBI v. Abramson , 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) ).

The agency bears the burden of showing that a claimed exemption applies. Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill , 443 U.S. 340, 352, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979) ; Loving v. Dep't of Def. , 550 F.3d 32, 37 (D.C. Cir. 2008). But merely identifying an exemption that covers some material found in a record does not permit an agency to withhold the record in its entirety. Rather, the agency must "take reasonable steps necessary to segregate and release nonexempt information." 5 U.S.C. § 552(a)(8)(A)(ii)(II).

FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56. See Beltranena v. U.S. Dep't of State , 821 F. Supp. 2d 167, 175 (D.D.C. 2011). To prevail on a summary judgment motion, the moving party must demonstrate that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In FOIA cases, an agency can meet this burden by submitting "relatively detailed and non-conclusory" affidavits or declarations, SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991), and an index of the information withheld, Vaughn v. Rosen , 484 F.2d 820, 827–28 (D.C. Cir. 1973). The Court may grant summary judgment solely on the basis of information provided by an agency in declarations when those declarations (1) describe "the documents and the justifications for nondisclosure with reasonably specific detail," (2) "demonstrate that the information withheld logically falls within the claimed exception," and (3) "are not controverted by either contrary evidence in the record nor by evidence of agency bad faith."

Mil. Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981) ; see also Gallant v. NLRB , 26 F.3d 168, 171 (D.C. Cir. 1994).

If "agency affidavits in support of a claim of exemption are insufficiently detailed," however, "[s]ummary judgment may not be appropriate without in camera review." Armstrong v. Exec. Office of President , 97 F.3d 575, 578 (D.C. Cir. 1996). In such a circumstance, "district court judges [have] broad discretion in determining whether in camera review is appropriate." Id. ; see, e.g. , Elec. Priv. Info. Ctr. v. DOJ , 442 F. Supp. 3d 37,...