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From Health Reform WK-EDGE, March 12, 2019

Some, but not all documents properly subject to Exemption 5 of FOIA request

By Sheryl Allenson, J.D.

A federal district court for the District of Columbia granted in part and denied in part cross-motions for summary judgment filed by Protect Democracy Project, Inc. (Protect Democracy) and HHS, relating to Freedom of Information Act action arising from the release of records concerning the discontinuation of advertising for healthcare.gov.

Here, the only remaining issue was whether the Department lawfully invoked FOIA Exemption 5, based on the deliberative process and attorney-client privilege, in order to withhold certain records or portions of records. Specifically, Protect Democracy submitted FOIA requests to the Department seeking certain documents, arising generally out of the Patient Protection and Affordable Care Act (ACA). The Department failed to timely produce the documents and Protect Democracy filed the instant action (Protect Democracy Project, Inc. v. HHS, February 27, 2019, Moss, R.).

Thereafter, the Department produced some records, but redacted portions pursuant to Exemption 5 of the FOIA. Some of the documents were in the files of the Office of the Secretary, referred to as HHS production, while others were produced from the files of the Centers for Medicare and Medicaid Services (CMS files). After the production, the Department moved for summary judgment in light of its production, and Protect Democracy filed a cross-motion shortly thereafter. Protect Democracy argued that the Department failed to conduct an adequate search and moreover improperly redacted records. In light thereof, the Department conducted an additional search, from which it turned over more than 200 additional documents. Additionally, it produced unredacted copies of certain documents.

In light thereof, Protect Democracy narrowed its motion to challenging the Department’s claim of Exemption 5, arguing that as to some redactions, it was improperly applied. As to other redactions. It claimed there was insufficient detail in the Vaughn indices to allow the court to decide whether the redactions were lawful. In sum, there was only one remaining issue arising from the motions, whether the Department lawfully redacted various records from its initial and supplemental production, pursuant to Exemption 5.

The court explained that the Department must submit "relatively detailed and non-conclusory" affidavits or declarations to meet its burden on summary judgment. Moreover, exemptions from disclosure are to be narrowly construed. "[C]onclusory and generalized allegations of exemptions are unacceptable," wrote the court, citing to another D.C. district court decision.

The court explained that background of Exemption 5, and the scope of its reach. Here, the Department sought to justify its redactions, replying on the deliberative process privilege and the attorney-client privilege. The former protects documents that reflect advisory opinions, deliberations and recommendations, from which governmental "’decisions and policies are formulated.’" The court explained that in order for the exemption to apply under the deliberative process privilege, the redacted information has to be both "predecisional" and "deliberative," and goes on to describe the context of each of these features.

For its part, Protect Democracy claimed that the Department is too broad in its application of the privilege, and that the Department does not meet its burden of showing that the privilege applies. Specifically, Protect Democracy claimed that the Department’s Vaughn indices and declarations are too vague and do not provide adequate descriptions of the withheld materials such that the court could decide whether the Exemption was applicable. The court agreed with Protect Democracy’s challenge to the adequacy of the Department’s Vaughn indices and declarations, and found the challenge was sufficient to overcome the Department’s motion for summary judgment relating to the deliberative process privilege. However, the court also ruled that "[b]ecause [it]. . .cannot determine, on the current record, whether the Department has lawfully invoked the deliberative process privilege, the Court must also deny Protect Democracy’s cross-motion for summary judgment," wrote the court. With one exception, the court also ruled that it would deny Protect Democracy’s request for an in camera inspection of the redacted documents.

The court explained its position relating to the deliberative process privilege, and the Department’s failure to adequately detail its Vaughn indices and declarations, although the Department does note that the deliberations subject to the FOIA request related to the Department’s discontinuation of ACA advertising. The court fund that the Department did not establish the deliberative process involved or how the documents played a role in that. By way of comparison, some of the Department’s other Vaughn indices and declarations explained in more depth how the redacted material was relevant in the deliberative process. "What is insufficient, however, is boilerplate language that might be used in any Vaughn index in any FOIA case," wrote the court.

Reviewing the fact that the Department’s submissions "fail to offer sufficient detail to permit the Court to evaluate whether the redactions were lawful," the court decided to deny the Department’s motion. Additionally, the court noted that it was not finding that Exemption 5 was inapplicable or that the redacted material was not deliberative, but instead found that the Department failed to provide ample information for the court to make the determination.

Additionally, the court declined to conduct an in camera review of the redacted documents, save one document t which the court found was the appropriate subject of an in camera review.

The court also considered the Department’s argument that the attorney-client privilege applied, for purposes of Exemption 5. After review and the application of an additional declaration from the Department, the court agreed that the limited number of redacted documents subject to the application of the attorney-client privilege ware properly the subject of Exemption 5, based on the attorney-client privilege.

The case is No. 1:17-cv-00792-RDM.

Attorneys: Benjamin Leon Berwick for Protect Democracy Project, Inc. Daniel J. Halainen, U.S. Department of Justice, for U.S. Department of Health & Human Services.

Companies: Protect Democracy Project, Inc.; U.S. Department of Health & Human Services

Cases: CaseDecisions AccessNews AgencyNews HealthInsuranceExchangeNews DistrictofColumbiaNews NewsFeed

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