Court Decisions

Cox v. DOJ, No. 17-3329, 2020 U.S. Dist. LEXIS 223596 (E.D.N.Y. Nov. 26, 2020) (Mauskopf, J.)

Re:  Request for Senate Select Committee on Intelligence's ("SSCI") Study of the Central Intelligence Agency's Detention and Interrogation Program ("SSCI Report"), as well as related records

Disposition:  Denying defendants' motion to dismiss; denying in part and granting in part defendant's motion for summary judgment

• Litigation Considerations:  The court holds that defendants' motion to dismiss is denied.  The court finds that, "[f]irst, a motion to dismiss on the basis that the requested documents are not agency records is properly brought on the merits - under Federal Rule of Civil Procedure 12(b)(6) or as a motion for summary judgment under Rule 56 - not Rules 12(b)(1) or 12(h)(3)."  "The Second Circuit has construed the mention of 'jurisdiction' in § 552(a)(4)(B) 'to reference remedial power, not subject-matter jurisdiction.'"  "An agency's motion to dismiss based on the fact that the requested documents are not 'agency records' thus does not implicate the Court's power to order that relief, but the merits of the action, and is therefore properly brought as a motion to dismiss for failure to state a claim under Rule 12(b)(6)."  "Because the Agencies moved to dismiss pursuant to Rule 12(b)(1) and 12(h)(3), both the Agencies and [plaintiff] 'relied upon matters outside the pleadings' in briefing this motion to dismiss."  "Still, the Court finds that the parties' briefing is not appropriate for conversion to summary judgment."  "In opposing the motion to dismiss for lack of jurisdiction, [plaintiff] argued that he should be entitled to discovery before the Court dismisses the action based on Congress's intent to control the SSCI Report."  "Furthermore, [plaintiff] expressed an interest in potentially cross-moving for summary judgment, and conversion of the motion would deprive him of the opportunity to do so."  "Ultimately, the Court cannot say, as is necessary to convert a Rule 12 motion to a motion for summary judgment, that the 'parties should reasonably have recognized the possibility of conversion,' so the Court declines to convert the Agencies' motion to dismiss into a motion for summary judgment."
  
  "In adjudicating a motion to dismiss pursuant to Rule 12(b)(6), the Court may 'consider those documents submitted by the parties which are matters of public record or which are deemed included in the Complaint.'"  "[Plaintiff] appended to his second amended complaint the December 2012 Letter, the April 2014 Letter, the December 2014 Letter, and his FOIA requests to the Agencies."  "The Court may therefore consider these documents in adjudicating this motion to dismiss."  However, "[t]he Court cannot take judicial notice of the June 2009 Letter for the purpose of this motion to dismiss."  "This letter was not appended to or incorporated by reference in Cox's complaint."  "Even if the Court could take judicial notice of this based on its (arguable) status as a public record, the Court could consider the document only for the fact of its existence, 'not for the truth of the facts asserted' within the letter."  "It would therefore be improper for the Court to evaluate the June 2009 Letter for the purpose of determining the SSCI's intent regarding copies of the SSCI Report as it would not be using 'the extraneous documents . . . to establish their existence, but rather to provide the reasoned basis for the court's conclusion.'"  Notably, in the "June 2, 2009, letter, the SSCI wrote to then-CIA Director Leon Panetta regarding the planned review of records at the CIA."  "The letter outlined 'procedures and understandings' under which the SSCI and its staff would conduct its review."  "The letter discussed the documents that would be provided, protections for computers used by SSCI staff, and – most significantly, for the purposes of the instant action – SSCI's control over notes, documents, reports, and other materials generated by SSCI staff."  "According to the Agencies, '[b]efore the review commenced, the Senate Committee and officials at the CIA negotiated arrangements to deal with access to classified materials by Senators and their staff, and agreed on rules regarding the Committee's control over its work product.'"  "The Agencies maintain that the June 2009 letter 'memorialized' these 'arrangements.'"
   
• Procedural Requirements, Agency Records:  "Based on the record before the Court, and drawing all inferences in [plaintiff's] favor, the Court cannot say that Congress 'manifested a clear intent to control' the SSCI Report."  The court relates that "[t]he Agencies rely to a large extent on the SSCI's June 2009 Letter to the CIA to argue that the SSCI intended to retain control over copies of the SSCI Report."  "However, as explained above, the Court cannot take judicial notice of this letter for the purposes of the instant motion to dismiss."  "On the other hand, documents of which the Court can take judicial notice – including the December 2012 Letter, the April 2014 Letter, and the December 2014 Letter appended to [plaintiff's] complaint – provide mixed evidence of the SSCI's intent to relinquish control over the SSCI Report."  The court finds that "[t]he Agencies accurately note the December 2012 Letter provides some support for the conclusion that the SSCI intended to retain control over the December 2012 SSCI Report."  However, the court also finds that "[i]f the December 2012 Letter contains indicia of the SSCI's intent to control the SSCI Report, it is difficult to ignore the absence of similar language in two subsequent letters from Senator Feinstein regarding the April 2014 SSCI Report and the December 2014 SSCI Report."  "In the April 2014 Letter, Senator Feinstein stated that she 'encourage[d] and approve[d] the dissemination of the updated report to all relevant Executive Branch agencies.'"  "Then, in the December 2014 Letter, Senator Feinstein used language even more indicative of an intent to relinquish control:  'T]he full report should be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate to help make sure that this experience is never repeated.'"  "'To help achieve that result, I hope you will encourage use of the full report in the future development of CIA training programs, as well as future guidelines and procedures for all Executive Branch employees, as you see fit.'"  "Both of these letters provide compelling evidence that SSCI intended to 'relinquish control' over the SSCI Report upon transmittal."  "The Agencies' remaining arguments in support of the conclusion that Congress intended to retain control over these records are not sufficient to justify dismissal here."  "The Agencies point to the fact that the SSCI's proceedings during the creation of the report were in closed session, and that SSCI information is by default confidential, but these facts provide little insight into what the SSCI intended with the reports once the SSCI transmitted them to the Agencies."
   
• Exemption 1:  The court finds that "[plaintiff] cannot meaningfully challenge the FBI's exemption one withholdings and the Court cannot meaningfully review them."  "Accordingly, the Court denies summary judgment with respect to the FBI's exemption one withholdings without prejudice."  The court explains that "nowhere in the CIA's Vaughn affidavit does it specifically list the documents it is withholding pursuant to exemption one."  "In addition to not identifying the bases upon which each record was withheld, the CIA's Vaughn affidavit omits discussion of some records withheld pursuant to exemption one altogether."  Regarding defendants' counter-argument, the court finds that "[t]he information necessary for [plaintiff] to challenge the agencies' withholdings or for the Court to perform de novo review of those withholdings must present in an agency's Vaughn affidavit – not provided by counsel in an agency's reply brief."  The court finds that "[plaintiff] cannot meaningfully challenge the FBI's exemption one withholdings and the Court cannot meaningfully review them."  "Although the Court denies summary judgment with respect to the FBI's exemption one withholdings at this time, the Court also declines [plaintiff's] request to engage in in camera review of . . . any . . . documents withheld pursuant to exemption one."  "Instead, the CIA and FBI are directed to supplement their Vaughn submissions regarding the FBI's withholding pursuant to exemption one of documents responsive to [plaintiff's] FOIA request."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "the FBI and CIA are directed to supplement their Vaughn submissions to adequately support the withholding of each record withheld pursuant to exemption five, and to support the conclusion that they released all reasonably segregable information in the records withheld."  The court explains that "[t]he FBI's Vaughn affidavit includes a single paragraph to justify its withholdings pursuant to the exemption five deliberative process privilege followed by a footnote identifying – by the Court's count – 63 pages of records withheld in full or in part pursuant to the exemption."  Additionally, the court finds that "[t]he FBI not only fails to provide a detailed basis for its exemption five withholdings, but at times wholly fails to justify its decision to withhold documents in full."  "[Plaintiff] reasonably argues that 'such "handwritten notes" [that defendants state that they withheld] likely contain "factual material" such as notes on the content of the [SSCI Report] itself.'"  "In contrast to this reasonable basis for doubting that these handwritten notes contain no segregable information, [defendants] provide only rote assurances that they have released all segregable material in the documents withheld."  "The Agencies are entitled to a presumption that they have adequately disclosed segregable material, but [plaintiff] specifically rebuts that presumption here – and the Agencies present no further basis upon which the Court could conclude they have released all segregable, non-exempt information withheld pursuant to exemption five."
   
• Exemption 5, Attorney-Client Privilege:  The court holds that "[u]pon review of the Vaughn submissions from the DOJ, DOD, ODNI, and State Department, the Court finds that the Agencies carry their burden of establishing proper withholding of documents pursuant to FOIA exemption five, including the release of all segregable non-exempt information."  "The affidavits 'demonstrate that the information withheld logically falls within the claimed exemption,' they 'are not controverted by either contrary evidence in the record nor by evidence of agency bad faith,' and ultimately, appear 'logical or plausible.'"  "The Court need not address whether the crime-fraud exception applies to exemption five because Cox has not met his burden of establishing that review of these documents would reveal evidence that the communications were made in furtherance of criminal or fraudulent activity."  "The Court is conscious of the fact that its review at this stage of the litigation is de novo, and as a result, [plaintiff] should not be obliged to make a substantial showing with respect to the application of the crime-fraud exception before the Court reviews the Agencies' documents in camera."  "At the same time, [plaintiff] is challenging the propriety of the Agencies' withholdings pursuant to exemption five, and under the Second Circuit's 'restrained approach,' [plaintiff] must make some showing of 'contrary evidence' or that is 'suggestive of bad faith' by the Agencies before the Court conducts in camera review to test that the Agencies properly withheld these documents pursuant to exemption five."  "For the Court to review these documents in camera based on a concern that the crime-fraud exception applies, [plaintiff] must make some initial showing that an agency's request for guidance, or the guidance provided, was 'itself in furtherance' of the crime or fraud he claims occurred."

Laws. Comm. for C.R. v. OMB, No. 18-645, 2020 WL 6887689 (D.D.C. Nov. 24, 2020) (Sullivan, J.)

Re:  Request for records concerning OMB's decision to halt initiative previously approved by OMB for collection of pay data from employers by EEOC

Disposition:  Denying defendant's motion for summary judgment in part without prejudice; holding defendant's motion for summary judgment in abeyance in part

• Exemption 5, Deliberative Process Privilege:  The court holds that "OMB's Motion for Summary Judgment is denied in part without prejudice as to whether OMB properly invoked the deliberative process privilege; and held in abeyance in part as to whether OMB released all reasonably segregable information."  The court relates that "[t]he parties do not dispute that the withheld information is predecisional."  Additionally, the court relates that "[defendant] states, among other things, that '[t]he redacted information reflects confidential discussions and deliberations that informed OMB's internal policy formulation process regarding OMB's final decision on the review of [an] EEO-1 form."  "OMB redacted such information from these records to protect frank discussions from being chilled by the effects of public scrutiny of the deliberative process.'"  "However, neither party has briefed the Court on whether [defendant's] affidavit together with the Vaughn index satisfies OMB's burden to meet the foreseeable harm standard."

Nat. Res. Def. Council v. EPA, No. 17-5928, 2020 WL 6891537 (S.D.N.Y. Nov. 24, 2020) (Furman, J.)

Re:  Request for records concerning senior manager's participation in certain agency policymaking activities

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  Regarding the first set of records at issue, certain briefing materials, the court holds that the records are similar to other documents "which the Court previously held were not exempt from disclosure and, therefore, "are not protected by the deliberative process privilege for the same reasons."  "Nevertheless, the Court agrees with the EPA that [these documents] are sufficiently similar to the documents subject to the EPA's currently pending interlocutory appeal that the EPA's obligation to produce these records should be stayed pending resolution of that appeal."  Regarding the second set of records at issue, emails containing "a science advisor's 'opinions regarding and characterizations of certain academic literature,'" the court finds that, for certain emails, "[t]he EPA's Vaughn Index provides no basis for a connection between [the emails] and [a relevant] registration review other than the fact that the review was occurring at the same time and the underlying study was ["'related'"]."  "It is thus far from clear that this record 'relate[s] to a specific decision facing the agency' . . . ."  For other emails, the court finds that they "contain[] 'opinions regarding and characterizations of certain academic literature,' including which 'literature would be most useful . . . to review to inform upcoming . . . registration-related decision-making.'"  Regarding the third set of records, "an email chain 'concerning which materials need to be included in the docket for [certain] Framework Rules,'" the court finds that "the EPA does not sufficiently demonstrate that these decisions on how to comply with its own guidance on compiling a rulemaking docket (1) are actually exercises of the EPA's 'essential policymaking role' in and of themselves . . . or (2) would 'reflect[ ] internal agency deliberation on matters of substantive policy prior to . . . public announcement of those decisions.'"  The court holds that "'[t]he deliberative process privilege . . . is centrally concerned with protecting the process by which policy is formulated.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements & In Camera Inspection:  The court relates that "EPA avers that, after conducting multiple re-reviews applying the standards articulated in the Court's [previous] opinion, it 'has not identified any remaining segregable, non-exempt factual material' other than what has already been produced."  "'Agencies are entitled to a presumption that [they] disclosed reasonably segregable material,' . . . and the affidavits submitted by the agency in support of its determination 'are accorded a presumption of good faith' . . . ."  The court finds that "[Plaintiff] provides no basis to overcome these presumptions."  "Although [plaintiff] argues that the 'EPA's unsystematic disclosure of additional information from records . . . in piecemeal fashion' warrants in camera review, . . . the Court will not hold against the EPA the fact that it revisited records it had already reviewed and reconsidered earlier exemption determinations in the face of continued challenges from [plaintiff]."  "That is the way the FOIA process should work."

Immerso v. U.S. Dep't of Labor, No. 19-3777, 2020 WL 6826271 (E.D.N.Y. Nov. 20, 2020) (Garaufis, J.)

Re:  Request for email concerning company's contract with U.S. Department of State

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 4:  "The court finds that DOL has described the redacted material in terms that sufficiently establish all three elements of the tripartite test for withholding pursuant to FOIA Exemption 4."  First, the court relates that defendant stated that "the . . . email was 'transmitted to an in-house attorney for [the company] to apprise him of developments potentially impacting [a] contract.'"  The court finds that "[b]usiness organizations plainly have a commercial interest in their contracts and matters affecting such contracts, and the court finds that DOL has satisfactorily alleged that the redacted information was commercial or financial in nature."  Second, the court finds that "[i]t is . . . clear that the . . . email did not originate within the Government, but rather that it was obtained by DOL from 'a person'[ the company] within the meaning of FOIA Exemption 4, satisfying the second prong of the test."  Third, regarding privileged information, the court relates that "[defendant's] declaration explains that the . . . email was withheld because it was 'marked "Subject to Attorney Client Privilege" and transmitted to an in-house attorney for [the company] in order to apprise him of developments' relating to the . . . contract 'and to explicitly request the attorney's input and review of the information transmitted.'"  "DOL asserts, on the basis of [defendant's] declaration, that the . . . email is marked with an attorney-client privilege notation and contains an explicit request from [the company] to . . . a [company] in-house attorney, to review the material laid out in the email and to provide his input."  The court finds that "[t]hat explanation is 'reasonably detailed' and 'facially sufficient' for the court to credit DOL's conclusion that the information in question was privileged."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The court . . . credits DOL's assertion that the material which Plaintiff alleges ought to have been segregated was intertwined with privileged information and of insufficient informational value to warrant its segregation."  "The court defers to the agency's good-faith representations and will not direct it to disclose meaningless information, the substance of which has already been conveyed to Plaintiff, simply so that Plaintiff can test the veracity of DOL's representations."