MEMORANDUM OPINION AND ORDER
Plaintiff Vern McKinley brings this action against the Federal Housing Finance Authority (“FHFA”), claiming that FHFA has improperly withheld two documents *87 that are responsive to a records request that McKinley submitted under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq. 1 McKinley argues that FHFA has incorrectly applied the deliberative-process and attorney-work-product privileges to withhold the documents. Before the Court are the parties’ cross-motions for summary judgment [# 9, 11]. Upon consideration of the motions, the oppositions thereto, and the record of this case, the Court concludes that the motions should be held in abeyance pending the Court’s in camera review of the documents.
I. BACKGROUND
FHFA was created in July 2008 by the Housing and Economic Recovery Act of 2008, 12 U.S.C. § 4501 et seq. Among other things, FHFA serves as the primary regulatory and oversight authority for the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation (known respectively as Fannie Mae and Freddie Mac and together as the Enterprises). Def.’s Mot. for Summ. J. Ex. 2 (“Wright Decl.”) ¶ 8; see 12 U.S.C. § 4511(b). In September 2008, FHFA placed the Enterprises in conservatorship, with the goal of stabilizing their operations and finances. Wright Decl. ¶ 10.
In May 2010, McKinley submitted a FOIA request to FHFA, seeking
any and all communications and records concerning or relating to the assessment of an adverse impact on systemic risk in addressing Fannie Mae and Freddie Mac, and in particular how the FHFA and the Department of the Treasury determined that conservatorship was the preferred option to avoid any systemic risk of placing Fannie Mae and Freddie Mac into receivership.
Compl. ¶ 5. This request, as McKinley subsequently clarified for FHFA, covers documents from the period spanning July 1 and September 30, 2008. In response to McKinley’s request, FHFA initially searched eight different internal offices, including the Office of General Counsel. Def.’s Mot. for Summ. J. Ex. 1 (“Lee Decl.”) ¶ 13. The Office of General Counsel produced three potentially responsive documents. Lee Decl. ¶ 15. An FHFA attorney reviewed the documents and concluded that they contained material protected by the deliberative-process and attorney-work-product privileges and were thus withholdable under FOIA’s Exemption 5. Lee Decl. ¶ 17; see 5 U.S.C. § 552(b)(5). McKinley was notified of that conclusion in July 2010. FHFA conducted a further search in October 2010 that uncovered no new responsive materials. Lee Decl. ¶¶ 18-23.
II. LEGAL STANDARD
To obtain summary judgment in a FOIA action, an agency must prove that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act’s inspection requirements.”
Goland v. CIA,
III. ANALYSIS
Here, McKinley does not challenge the sufficiency of FHFA’s search. He also elects not to contest FHFA’s withholding of the first of the three responsive documents that its search uncovered. He contends, however, that FHFA has misapplied the deliberative-process and attorney-work-product privileges to the remaining two documents. Neither privilege, McKinley asserts, justifies ths withholding of the entirety of each document. The Court addresses each privilege in turn.
A. The Deliberative-Process Privilege
The deliberative-process privilege protects materials that are “both predecisional and deliberative.”
Pub. Citizen, Inc. v. Office of Mgmt. & Budget,
Here, it is undisputed that the two documents are predecisional. The parties contest, however, whether the documents are deliberative. FHFA argues that documents are deliberative if, as here, they involve the weighing and consideration of potential courses of action. McKinley argues that a document is not deliberative unless the agency can show that the release of the document would harm the agency’s decisionmaking process, which, he contends, FHFA cannot do here. McKinley is incorrect.
On June 3, 2011, the D.C. Circuit rejected McKinley’s contention that an agency must show harm to its decisionmaking process in order to withhold a record as “deliberative.” Ruling on McKinley’s appeal in another FOIA case, the D.C. Circuit explained that “Congress enacted FOIA Exemption 5 ... precisely because it determined that disclosure of material that is both predecisional and deliberative
does
harm an agency’s decisionmaking process.”
McKinley v. Bd. of Governors of Fed. Reserve Sys.,
In turn, the Court must conclude that FHFA properly applied the privilege. As noted, McKinley concedes that the documents are predecisional. And, under the standard clarified and applied by the D.C. Circuit in
McKinley,
they are deliberative: they are internal documents that were “provided to ... senior policymakers to assist in their deliberations” regarding FHFA’s oversight of the Enterprises. Def.’s Mot. for Summ. J. Ex. 3 (“Pollard Deck”) ¶¶ 13-14. McKinley does not contend otherwise. Thus, the Court concludes that the documents are protected
*89
by the deliberative-process privilege.
See Renegotiation Bd. v. Grumman Aircraft Eng’g Corp.,
That conclusion, however, does not resolve this case. “[T]he deliberative process privilege does not protect documents in their entirety; if the government can segregate and disclose non-privileged factual information within a document, it must.”
Loving v. Dep’t of Defense,
B. The Work-Product Privilege
The work-product privilege protects “documents ... that are prepared in anticipation of litigation ... by or for [a] party or its representative.” Fed.R.Civ.P. 26(b)(3)(A);
see United States v. Deloitte LLP,
Document 2, according to FHFA’s Vaughn Index, 2 was “created by the Office of General Counsel to analyze the features, strengths and weaknesses of two alternate approaches for FHFA in dealing with the Enterprises — issuing a consent order or instituting a conservatorship.” Wright Decl. Attach. A (“Vaughn Index”) at 1. It addressed
the purpose behind both alternatives, analyses of the ability of each to address substantive issues and operational matters, analysis of the public perception of each alternative, analysis of the potential demands upon FHFA, analysis of the potential for judicial review, analysis of potential responses from the Enterprises and analysis of the potential challenges for FHFA under either approach.
Vaughn Index at 1. Document 3 was “created by the Office of General Counsel to assess and analyze the issues and options for FHFA’s efforts to address the problems of a troubled regulated entity.” Vaughn Index at 1. It covered
the ramifications of choosing either conservatorship or receivership and the factors that would support either choice, the factors that would trigger either [option], the powers and authorities of FHFA under either [option], issues for the agency in implementing [either option], the operational requirements that might be required in implementing [either option], the steps that could be required before implementing [either option], the steps that could be required during the implementation of [either option], the impact on officers and directors of implementing [either option], and alternatives to [either option] that might be available to FHFA, including the possibility of an informal order or cease and desist order.
Vaughn Index at 1.
McKinley contends that these descriptions reveal that the two documents were created to help FHFA decisionmakers *90 make policy choices, and not in anticipation of any litigation. FHFA concedes that each document has a policy component, but avers that each was also created to address the possibility that the Enterprises would bring a legal challenge to the policy that it adopted, or that FHFA itself would have to initiate litigation to effect its chosen policy. FHFA asserts that this dual role does not rob these documents of work-product protection.
FHFA is correct that having a non-litigation aspect does not automatically preclude a document from passing the anticipation-of-litigation test. Where a document has a non-litigation component, the key question is whether it “would have been created in essentially similar form irrespective of the litigation.”
United States ex rel. Fago v. M & T Mortg. Corp.,
Here, the Court lacks the information necessary to answer that question.
See Delaney, Migdail & Young, Chartered v. IRS,
IV. CONCLUSION
For the foregoing reasons, the parties’ cross-motions for summary judgment are held in abeyance pending this Court’s in camera review of the two documents withheld from disclosure. Accordingly, it is this 7th day of June 2011 hereby
ORDERED that defendant Federal Housing Finance Authority produce copies of the two contested documents (identified as Documents 2 and 3 in the Vaughn Index) for the Court’s in camera inspection by no later than July 1, 2011.