U.S. Department of the Treasury v. Pension Benefit Guaranty Corp.
222 F. Supp. 3d 38
| D.D.C. | 2016Background
- Respondents (Delphi salaried retirees) seek documents from the U.S. Department of the Treasury that Treasury withheld or redacted in connection with Respondents’ separate litigation against PBGC arising from Delphi’s 2009 pension termination.
- Treasury originally asserted privileges over 1,273 documents; Respondents challenged 866 of those. The Court ordered in camera review of a sample, then all contested documents.
- After the Court ordered in camera production, Treasury revoked privilege claims for nearly 640 of the 866 contested documents, leaving 221 contested documents. Treasury offered no explanation for its large revocation.
- Treasury asserted the deliberative process privilege as the sole basis for withholding 120 documents and as one of several privileges for others; it also asserted presidential communications, attorney-client, and work-product protections for additional documents.
- The Court found Treasury’s privilege log, agency declaration, and ex parte submissions inadequate to justify deliberative process claims because they failed to (a) identify predecisional/deliberative content, (b) show materials were not adopted as final policy, and (c) provide particularized factual explanations.
- Ruling: the Court ordered immediate production of all documents withheld solely under the deliberative process privilege, required a revised privilege log and in camera submission for remaining documents by January 10, 2017, and reserved ruling on other asserted privileges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Treasury properly invoked the deliberative process privilege for documents withheld solely on that basis | Respondents argue materials are not protected, privilege was waived/overcome, and Treasury’s submissions are conclusory | Treasury contends documents reflect predecisional, deliberative communications about auto-restructuring and thus are privileged | Court: Treasury failed to make the required particularized showing; ordered production of documents withheld solely under the deliberative process privilege |
| Whether Treasury’s privilege log and declarations satisfy the required detail for deliberative-process claims | Need for specific, document-level justification to assess privilege | Treasury provided a privilege log, Rasetti declaration, and ex parte sheets asserting categories and conclusory statements | Court: Log and declarations are inadequate (conclusory, inconsistent, lack showing documents weren’t adopted); privilege claims denied as to documents withheld solely on that ground |
| Whether Treasury’s partial revocations and inconsistent ex parte submissions affect privilege assertions and the Court’s review | Revocations suggest uncertainty and undermine privilege assertions; Respondents seek explanation and production | Treasury offered no explanation for withdrawing many claims after in camera order | Court: noted troubling revocations and inconsistency; ordered revised privilege log and renewed in camera submission limited to remaining contested documents |
| How to handle other asserted privileges (presidential communications, attorney-client, work product) | Respondents challenge remaining privileges and seek in camera review | Treasury maintains remaining privileges justify withholding some documents | Court: Deferred ruling; required revised log and in camera submission for the remaining contested documents and will analyze those claims after compliance |
Key Cases Cited
- Dep’t of the Interior v. Klamath Water Users Prot. Ass’n, 532 U.S. 1 (privilege protects advisory opinions, recommendations, deliberations)
- Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895 (D.C. Cir. 2015) (officials won’t communicate candidly if deliberative remarks are discoverable)
- Russell v. Dep’t of the Air Force, 682 F.2d 1045 (D.C. Cir. 1982) (judge officials by decisions, not predecisional matters)
- Mapother v. Dep’t of Justice, 3 F.3d 1533 (D.C. Cir. 1993) (deliberative process privilege requires predecisional and deliberative showing)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) (predecisional materials can lose privilege if adopted as final policy)
- Landry v. F.D.I.C., 204 F.3d 1125 (D.C. Cir. 2000) (agency declaration requirements for asserting privilege)
- Ascom Hasler Mailing Sys., Inc. v. U.S. Postal Serv., 267 F.R.D. 1 (D.D.C. 2010) (privilege log and declaration must provide specific rationale)
- Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252 (D.D.C. 2004) (draft designation alone insufficient to establish privilege)
- Taxation with Representation Fund v. IRS, 646 F.2d 666 (D.C. Cir. 1981) (deliberative process privilege construed narrowly)
- United States v. Philip Morris, 218 F.R.D. 312 (D.D.C. 2003) (privilege construed narrowly consistent with government operation)