Reinhard v. Dep't of Homeland Sec.

JOSHUA L. REINHARD, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, Defendant.

Civil Action No. 18-1449 (JEB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 11, 2019

MEMORANDUM OPINION

The United States Coast Guard fired Plaintiff Joshua Reinhard following a barrage of misconduct allegations. Reinhard wishes to reverse this course. Believing that he was not given a fair shake, he has spent the last three years fighting the Coast Guard's administrative separation. In the present litigation, which is but a cog in the wheel of this broader dispute, Plaintiff has turned to a tool often employed by those vexed by government action: the Freedom of Information Act. Reinhard filed two requests with Defendant Department of Homeland Security — the federal agency that houses the Coast Guard — seeking records concerning his termination. These documents, he hopes, will reveal material beneficial to his appeal. In response, DHS turned over more than one thousand pages of records. In addition to this trove, however, it withheld some documents under FOIA's exemption for information shielded by litigation privileges. Plaintiff challenges those withholdings in this suit.

Both parties have now filed Motions for Summary Judgment. Concluding that the Government has met its burden as to many, but not all, of its withholdings, the Court will grant in part in and deny in part both DHS's Motion for Summary Judgment and Reinhard's Cross-Motion.

I. Background

The factual path that led to Reinhard's FOIA requests bears little on the legal issue at hand. The Court will thus skip this setup and proceed to details of his requests. Readers curious to learn the circumstances behind his suit are directed to the opinion, issued by another court in this district, rebuffing Plaintiff's attempt to enjoin his separation from the military. See Reinhard v. Johnson, 209 F. Supp. 3d 207, 210-13 (D.D.C. 2016).

Reinhard's first FOIA request went straight to the point. He sought from DHS the release of "all communication and correspondence . . . amongst the command regarding his administrative separation." See ECF No. 2 (Compl.), ¶ 6. A few months later, Plaintiff followed up with a more targeted inquiry, this time seeking "the command climate survey conducted in or about January 2016 at Eighth Coast Guard District, New Orleans, Louisiana and into the climate under Captain Rush." Id., ¶ 13. After DHS did not satisfactorily respond within the statutorily prescribed timeframe, Reinhard filed this suit. Id., ¶¶ 9-10, 17-18.

The Coast Guard eventually located numerous records responsive to both requests. (Unless the difference holds some significance, the Court will use the terms Defendant, the Government, DHS, and the Coast Guard interchangeably in this Opinion.) It turned over to Plaintiff a total of 197 documents containing 1,069 pages of material. See ECF No. 8 (Def. MSJ), Attach. 4 (First Declaration of Jesse L. Houck), ¶ C.4. Defendant, however, redacted in part several documents and withheld others in full largely pursuant to FOIA Exemption 5's protection for inter- or intra-agency records shielded by a litigation privilege. Id., Exh. E (First Vaughn Index) at 1-6. Others it withheld or redacted under Exemption 6's shield for privatepersonal information and 7(C)'s protection for private law-enforcement records. Id. at 4; First Houck Decl., ¶ C.4. Reinhard does not challenge documents withheld under these latter two exemptions, instead saving his fire for the Coast Guard's invocation of Exemption 5. See ECF No. 11 (Pl. MSJ & Opp.) at 4. Following Plaintiff's Motion for Summary Judgment, the Government released several more documents, obviating the Court's need to wade into those waters. See ECF No. 15 (Def. Opp. & Reply), Attach. 1 (Second Declaration of Jesse L. Houck), ¶ 5.

After the parties completed briefing in this case, this Court ordered — as it often does in these circumstances — that DHS provide unredacted copies of the disputed records in camera. See Minute Order of Mar. 5, 2019. Having reviewed these records, the Court is primed to resolve the parties' dispute.

II. Legal Standard

Summary judgment may be granted 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). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). In the event of conflicting evidence on a material issue, the Court is to construe the conflicting evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).

FOIA cases typically and appropriately are decided on motions for summary judgment, and the agency bears the ultimate burden of proof. See Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int'l Dev., 484 F. Supp. 2d68, 73 (D.D.C. 2007); see also Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). And "[u]nlike the review of other agency action[,] . . . the FOIA expressly places the burden 'on the agency to sustain its action' and directs the district courts to 'determine the matter de novo.'" U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). 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." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. Analysis

Congress enacted FOIA "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quotation marks and citation omitted). In doing so, FOIA helps "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). The statute provides that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person." 5 U.S.C.§ 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See id. § 552(a)(4)(B); Reporters Comm., 489 U.S. at 754-55.

The Government need not, however, turn over requested information that falls into one of nine statutorily created exemptions from FOIA's broad directive. See 5 U.S.C. § 552(b)(1)-(9). These exemptions must be "narrowly construed." Rose, 425 U.S. at 361. That is so because courts must "[a]t all times . . . bear in mind that FOIA mandates a 'strong presumption in favor of disclosure.'" Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991)).

A. Exemption 5

Only one exemption is at issue here: Exemption 5. This applies to "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). Withholdings are restricted to "those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see also United States v. Weber Aircraft Corp., 465 U.S. 792, 798-99 (1984). In contrast to certain disclosures in that context, the needs of a particular plaintiff are irrelevant to a court's determination of whether a particular communication is exempt from disclosure under Exemption 5. See Martin v. Office of Special Counsel, Merit Sys. Prot. Bd., 819 F.2d 1181, 1184 (D.C. Cir. 1987) (citing Sears, Roebuck & Co., 421 U.S. at 149 & n.16).

Exemption 5 encompasses three distinct components — namely, the deliberative-process privilege (sometimes referred to as "executive privilege"), the attorney-client privilege, and the attorney-work-product privilege. See Am. Immigration Council v. U.S. Dep't of Homeland Sec.,905 F. Supp. 2d 206, 216 (D.D.C. 2012). Narrowed over the course of briefing, the parties' dispute concerns only the first two privileges. See Second Houck Decl., ¶ 8. The Court will begin with the documents for which DHS invokes the deliberative-process privilege, before turning to those for which the attorney-client privilege is at issue. In this case, these categories of documents do not overlap.

1. Deliberative-Process Privilege

The deliberative-process privilege shields internal agency "advisory opinions, recommendations and deliberations" in order to "protect[] the decision making processes of government agencies." Sears, Roebuck & Co., 421 U.S. at 150 (citations omitted). To qualify under this privilege, a record must meet two requirements. First, it must be predecisional — i.e., "generated before the adoption of an agency policy." Judicial Watch, Inc. v. U.S. Dep't of Def., 847 F.3d 735, 739 (D.C. Cir. 2017) (citation omitted)....