American Oversight v. HHS, 101 F.4th 909

Background

American Oversight submitted FOIA requests to HHS and OMB seeking communications between those agencies and Congress related to healthcare reform efforts in early 2017.
The agencies withheld responsive records under FOIA Exemption 5, arguing these were protected “intra-agency” communications under the consultant corollary doctrine.
American Oversight sued, arguing that Congress and its staff had an independent stake in healthcare reform and thus the withheld communications could not be considered “intra-agency.”
The district court ruled for the agencies, applying a broad version of the consultant corollary allowing Exemption 5 protection if there was a shared goal, even where Congress had its own interests.
On appeal, the D.C. Circuit considered whether agency communications with members of Congress about proposed legislation could be classified as "intra-agency" for FOIA Exemption 5 purposes.
The court also assessed whether HHS conducted an adequate search in response to the FOIA request.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Do agency-Congress communications over potential legislation qualify as "intra-agency" under Exemption 5?	Congress had its own stake and acted as a negotiating party, not as a disinterested consultant; so the consultant corollary does not apply.	The agencies and Congress shared the goal of healthcare reform; thus, communications are protected as part of the deliberative process, even if Congress has its own interests.	No, Exemption 5 does not apply because Congress had an independent interest—communications are not “intra-agency.”
Does Klamath limit the consultant corollary to non-self-interested outsiders?	Yes; Exemption 5 only reaches outside consultants who, like employees, have no stake in the agency's decision beyond providing disinterested advice.	No; Klamath only excluded self-interested parties seeking benefits at others' expense, not situations with common interests.	Yes; Klamath restricts Exemption 5 to disinterested consultants without their own stake in the outcome.
Is a showing of "common interest" enough to invoke Exemption 5 for external collaborators such as Congress?	No; mere common purpose is not sufficient if the external collaborator brings its own independent interest.	Yes; if the agency and consultant share overriding common goals, protection applies.	No; the existence of an independent stake by Congress defeats Exemption 5 protection.
Was HHS's search for responsive records adequate?	No; HHS failed to use obvious search terms like “Obamacare,” “repeal and replace,” and full statute names.	Yes; HHS claims its chosen acronyms and terms were sufficient, and more general terms would be burdensome.	No; HHS’s search was not reasonably calculated to uncover all relevant records.

Key Cases Cited

Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (Supreme Court limited Exemption 5's reach to disinterested, employee-analogous consultants)
EPA v. Mink, 410 U.S. 73 (describing the scope and purpose of FOIA and its exemptions)
U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (emphasizing FOIA’s presumption of broad disclosure and narrow exemption construction)
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (the President and top aides are not agencies for FOIA purposes)
Rockwell Int'l Corp. v. Dep't of Justice, 235 F.3d 598 (providing precedent on the effect of sharing privileged materials with Congress)
Murphy v. Dep't of Army, 613 F.2d 1151 (congressional access and privilege not waived when agency shares documents with Congress)
Clinton v. City of New York, 524 U.S. 417 (discussing the President’s role in recommending legislation to Congress)
Judicial Watch, Inc. v. Dept. of Energy, 412 F.3d 125 (post-Klamath application of Exemption 5 to agency-adjacent entities)