380 F. Supp. 3d 45
D.C. Cir.2019Background
- American Oversight filed FOIA requests to HHS and OMB for communications between the agencies and Members of Congress or congressional staff about potential administrative actions relating to the Affordable Care Act (requests timeframe beginning March 6, 2017).
- Plaintiff sued after agencies produced records but redacted or withheld portions and labeled some material as “non-responsive”; rolling productions completed by Feb. 2018.
- Agencies defined a “record” narrowly as individual emails authored by agency personnel and redacted prior Congressional emails embedded in agency sent emails.
- Agencies withheld some material under FOIA Exemption 5 (deliberative process privilege), asserting communications with Congress reflected predecisional deliberations.
- Plaintiff challenged the redactions as improper (responsive material and cannot be excised from a responsive record) and argued Exemption 5 does not apply because Congressional communications are not intra-agency or neutral consultants.
- Court denied defendants’ summary judgment, granted plaintiff’s cross-motion, and ordered production of the redacted materials consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agencies may treat parts of an email chain as non-responsive and redact embedded Congressional material | Redactions are improper because agency-sent emails that include prior exchanges constitute a single responsive record and embedded text must be produced unless exempt | FOIA requested communications from agencies only, so emails authored by Congress are non-responsive and may be omitted | Court: Rejects defendants’ narrow definition; when agency emails contain prior Congressional messages inline, the entire chain is responsive and cannot be redacted as "non-responsive" |
| Whether communications with Congress qualify as "inter- or intra-agency" communications under Exemption 5 (consultant corollary) | Communications with Congress are not intra-agency; Congress had its own interests and did not act as a neutral consultant, so Exemption 5 does not apply | Communications are part of agencies’ deliberative process and thus are predecisional and deliberative; consultant corollary can apply to outside contributors | Court: Defendants failed to satisfy the threshold that outside participants were neutral consultants; Exemption 5 not established, so withheld material must be produced |
| Whether withheld material is predecisional and deliberative under Exemption 5 | N/A (court disposed at threshold) | Agencies assert materials were predecisional and deliberative and would chill candid internal discussion if released | Court: Did not reach because agencies failed the intra-/inter-agency requirement for Exemption 5 |
| Adequacy of agencies’ search for responsive records | Plaintiff withdrew challenge to search adequacy | Agencies argued searches were adequate | Not litigated further: plaintiff withdrew this challenge |
Key Cases Cited
- American Immigration Lawyers Ass'n v. Exec. Office for Immigration Review, 830 F.3d 667 (D.C. Cir. 2016) (FOIA requires production of responsive records as a unit; agencies may only redact under statutory exemptions)
- Klamath Water Users Protective Association v. United States Department of the Interior, 532 U.S. 1 (2001) (Exemption 5 consultant corollary applies only when outside contributor functions like a neutral consultant)
- Oglesby v. U.S. Dep't of Army, 920 F.2d 57 (D.C. Cir. 1990) (agency must make a good-faith search reasonably calculated to uncover requested records)
- McKinley v. Bd. of Governors of the Federal Reserve System, 647 F.3d 331 (D.C. Cir. 2011) (consultant corollary applies where outside entity does not represent its own or another client’s interest)
- Pub. Employees for Envtl. Responsibility v. U.S. Section, Int'l Boundary & Water Comm'n, 740 F.3d 195 (D.C. Cir. 2014) (post-Klamath emphasis that consultant corollary is confined to neutral consultants)