EMMET G. SULLIVAN, United States District Judge.
This Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., case is before the Court on cross motions for summary judgment. At issue is the Consumer Financial Protection Bureau's ("CFPB" or the "Bureau") response to plaintiff Judicial Watch, Inc.'s requests for documents relating to the appointment of Richard Cordray as director of the CFPB. Upon consideration of the motions, the responses and replies thereto, the entire record, and for the reasons explained below, defendant's motion will be
Plaintiff is a non-profit, educational foundation which regularly requests access to the public records of government entities and disseminates its findings to the public. Compl. ¶ 3. On January 12, 2012, plaintiff submitted a FOIA request to CFPB, seeking all records of communications between the CFPB and various entities concerning President Obama's visit to the CFPB and his recess appointment of Richard Cordray as director of the CFPB. Declaration of Brett Kitt ("Kitt Decl.") Exh. A. The January 12 request was assigned a FOIA tracking number. Id. ¶ 3. On January 25, 2012, plaintiff submitted another FOIA request to CFPB, seeking all records of communications concerning Mr. Cordray's appointment as director of the CFPB and any documentation reflecting travel and lodging for Mr. Cordray, his family, and any additional guests. Id. Exh. B. The January 25 request was also assigned a FOIA tracking number. Id. ¶ 4.
On January 27, 2012 and January 30, 2012, CFPB sent letters to plaintiff formally acknowledging the receipt of the requests. Id. Exhs. C, D. On March 30, 2012, CFPB issued an interim response to plaintiff's January 25 FOIA request, explaining that the Bureau's initial search for the requested documents produced 269 pages, that the Bureau would partially release 220 pages, and that the Bureau would claim FOIA Exemptions 5 and 6 for the remaining 49 pages. Id. Exh. F. With this response, CFPB partially released 220 pages of responsive material. Id. In April 2012, there were additional communications between the parties regarding the status of CFPB's determinations on the pending FOIA requests. Id. Exhs. G, H. On June 7, 2012, CFPB informed plaintiff by telephone and by e-mail that the Bureau intended to issue its determination shortly. Id. Exh. I. On the same day, plaintiff brought this action alleging that CFPB failed to comply with the relevant timelines set forth in 5 U.S.C. § 552(a)(6)(A) with respect to both of its requests. See generally Compl. On June 8, 2012, CFPB issued its determination as to both of plaintiff's FOIA requests. Kidd Decl. Exhs. J, K. With this response, CFPB partially released an additional 12 pages of responsive material and withheld an additional 3 pages under FOIA Exemptions 5 and 6. Id. The response letters also informed plaintiff of the right to administratively appeal the Bureau's determination. Id.
Subsequently, while this litigation was pending, the CFFB conducted another search for records responsive to both FOIA requests. Kidd Decl. Exh. L. On September 28, 2012 it released a supplemental production to plaintiff consisting of 17 pages of responsive records released in full and 8 pages released in part. Id. Eight hundred eighty pages were withheld in full. Id. While preparing its Vaughn index, the Bureau identified a small amount of previously withheld material which it later determined could be partially released. Id. Exh. N. It released those records to plaintiff. Id.
On November 9, 2012, the Bureau moved for summary judgment, claiming that plaintiff did not exhaust its administrative remedies. Def.'s Mot for Summ. J.
Summary judgment is granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). In determining whether a genuine issue of fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Under FOIA, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; as such, only after an agency proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C.1996) (citing Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C.Cir.1983)). FOIA cases are typically and appropriately decided on motions for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F.Supp.2d 123, 130 (D.D.C.2011) (citations omitted).
In reviewing a motion for summary judgment under the FOIA, the court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B) (2012). The court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations that describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Agency affidavits or declarations must be "relatively detailed and non-conclusory." SafeCard Services v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Id. (internal citation and quotation omitted).
"Exhaustion of administrative remedies is generally required before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision." Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 61 (D.C.Cir.1990) (citing McKart v. United States, 395 U.S. 185,
Citizens for Responsibility and Ethics in Washington ("CREW") v. FEC, 711 F.3d 180, 188 (D.C.Cir.2013); see also 5 U.S.C. § 552(a)(6)(A)(i) (providing that the response must include the agency's "determination" on whether to comply with the request and "the reasons therefor," and notice of the requester's right to appeal any adverse determination). An agency response that does not include all the necessary components may be deemed insufficient to trigger the exhaustion requirement. See CREW, 711 F.3d at 188 (stating that more than "an initial statement that the agency will generally comply with a FOIA request and will produce non-exempt documents and claim exemptions in the future" is required); Oglesby, 920 F.2d at 67 (finding that an agency response that does not provide notice of FOIA requester's right to appeal was insufficient to trigger the exhaustion requirement).
Where the agency fails to issue a determination sufficient to trigger the exhaustion requirement within the statutory timelines, the FOIA requester is deemed to have exhausted administrative remedies. 5 U.S.C. § 552(a)(6)(C)(i). However, if the agency cures its failure to timely respond before the requester files suit, the constructive exhaustion provision does not apply and the requester must first administratively appeal any adverse determination. Oglesby, 920 F.2d at 63-64. Thus, to determine whether plaintiff must satisfy the exhaustion requirement in the instant case, it is necessary to determine whether CFPB has issued its determination within the relevant time period, or at least before plaintiff filed suit.
Plaintiff, in its Notice of Supplemental Authority, cites to the D.C. Circuit's decision in CREW to support its argument that CFPB's acknowledgement letters on January 27 and January 30, and CFPB's interim response letter on March 20 cannot trigger the administrative exhaustion requirement because the Bureau failed to notify plaintiff of the right to appeal. Pl.'s Notice of Supp. Auth. at 2. CFPB does not attempt to refute plaintiff's arguments. The Court agrees with plaintiff that CFPB's letters issued prior to the initiation of this case are insufficient to trigger the exhaustion requirement for this reason. CFPB only provided plaintiff with the notice of the right to appeal in its June 8 letter. However, because this letter was issued after plaintiff initiated this lawsuit, it cannot be used to cure CFPB's failure to timely respond to FOIA requests. Thus, the Court finds that CFPB failed to issue its determination within the statutory time period or before plaintiff brought this action, and that plaintiff has therefore constructively exhausted its administrative remedies.
Exemption 5 permits an agency to withhold documents such as "inter-agency or intra-agency memorandums or letters
The deliberative process privilege "rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the government." DOI v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (citations omitted). To qualify for withholding under the deliberative process privilege, the withheld material must be both predecisional and deliberative. "A document is predecisional if it was prepared in order to assist an agency decisionmaker in arriving at his decision, rather than to support a decision already made. Material is deliberative if it reflects the give-and-take of the consultative process." Petroleum Info Corp. v. Dep't of Interior, 976 F.2d 1429, 1434 (D.C.Cir. 1992) (citations and quotation marks omitted).
The attorney client privilege is meant "to assure that a client's confidences to his or her attorney will be protected, and therefore encourage clients to be as open and honest as possible with attorneys." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C.Cir. 1980). The privilege "is not limited to communications made in the context of litigation or even a specific dispute, but extends to all situations in which an attorney's counsel is sought on a legal matter." Id. The attorney work product privilege, by contrast, is "limited to documents prepared in contemplation of litigation." Id. at 864. While obviously related, the privileges have different goals: "the attorney client privilege exists to protect confidential communications," while the work product privilege "promote[s] the adversary system by safeguarding the fruits of an attorney's trial preparations." United States v. AT&T Co., 642 F.2d 1285, 1299 (D.C.Cir.1980).
The purpose of the presidential communications privilege is to "guarantee the candor of presidential advisers and to provide `[a] President and those who assist him . . . [with] freedom to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately." In re Sealed Case, 121 F.3d 729, 743 (D.C.Cir.1997) (quoting U.S. v. Nixon, 418 U.S. 683, 708, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)). "This privilege extends to communications authored or received in response to a solicitation by members of a presidential adviser's staff, since in many instances advisers must rely on their staff to investigate and issue and formulate the advice to be given to the President." ACLU v. DOJ, Case No. 10-123, 2011 WL 10657342, *10, 2011 U.S. Dist. LEXIS 156267, *30 (D.D.C. Feb. 14, 2011) (citing In re Sealed Case, 121 F.3d at 752).
Judicial Watch challenges the CFPB's withholding of two records for which the Bureau cites only the deliberative process privilege as grounds for the withholding. The Court addresses each in turn.
Plaintiff challenges the CFPB's withholding of two emails within a chain dated December 6, 2011, which discuss draft briefing materials for the Deputy
The Court finds the Bureau has carried its burden to prove the applicability of its claimed exemption. Internal communications regarding how to respond to media and Congressional inquiries have repeatedly been held to be protected under the deliberative process privilege. Judicial Watch, Inc. v. U.S. Dep't of the Treasury, 796 F.Supp.2d 13, 31 (D.D.C.2011); Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec., 736 F.Supp.2d 202, 208 (D.D.C.2010); Judicial Watch, Inc. v. U.S. Dep't of Commerce, 337 F.Supp.2d 146, 174 (D.D.C. 2004). The CFPB's declaration and Vaughn index indicate that the withheld documents contain talking points and briefing materials, including recommendations for how to answer questions about the CFPB, that were prepared by Bureau employees for the consideration of decision makers at Treasury. Judicial Watch's selective quoting of name of the attachment listed in the Vaughn index does not convince the Court otherwise.
The second document challenged by plaintiff is an email from Nicole Isaac, a White House staffer, to CFPB employee Lisa Konwinski. Vaughn Index at 12 (Bates 390-91). It is titled "HJC February 15th on Cordray," and the Bureau claims it is subject to the deliberative process privilege because it constitutes "a request of the White House for advice regarding a Congressional hearing and [to] discuss suggestions for responding to that request." Id. Judicial Watch argues that it is not subject to the privilege because under FOIA, the deliberative process privilege is limited to "inter-agency or intra-agency" records, 5 U.S.C. § 552(b)(5), and "[g]enerally, the White House staff is not considered to be an agency for purposes of FOIA." Pl.'s Combined Cross Mot./Opp'n at 9-10. The Bureau concedes that the White House is not an agency for the purposes of FOIA, but argues that Exemption 5 nevertheless applies to communications between agencies and the White House that would otherwise be privileged in civil discovery. Def.'s Combined Opp'n/Reply at 13-14.
The Court agrees with plaintiff that the Bureau has not demonstrated this document should be withheld under Exemption 5. The FOIA directs that "each agency, upon any request for records . . ., shall make the records promptly available to any person" for "public inspection and copying," unless the records fall within one of the exclusive statutory exemptions. See
The cases cited by the Bureau do not support its claim that the deliberative process privilege is available to employees in the Office of the President in FOIA litigation. The first case CFPB cites, CREW v. Dep't of Homeland Security, Case 06-173, 2008 U.S. Dist. LEXIS 57442 (D.D.C. July 22, 2008) concerns Exemption 5's presidential communications privilege, not its deliberative process privilege. Unlike the deliberative process privilege, "there is [available in FOIA litigation] . . . a built-in presidential communications privilege for records in the possession of, or created by, immediate White House advisers, who are not considered an agency for the purposes of FOIA." Judicial Watch, 365 F.3d at 1112. The other case cited by Defendant, Judicial Watch, Inc. v. Dep't of Energy, 412 F.3d 125 (D.C.Cir.2005), is likewise not helpful to the Bureau because it involved a committee within the Executive Office of the President, which is subject to the FOIA and can therefore assert the deliberative process privilege. Id. see also In re: Cheney, 406 F.3d 723, 725 (D.C.Cir.2005).
Accordingly, because FOIA's deliberative process privilege applies to certain employees working in the White House but not to all, the application of the privilege hinges on what capacity in the White House Ms. Isaac worked, and for what office. The Bureau's declaration and Vaughn index do not provide this information. Thus the Court cannot conclude that the deliberative process privilege is properly invoked, and will therefore deny the Bureau's motion for summary judgment with respect to the records in Bates Range 390-391. CFPB must either disclose the record withheld or, in the alternative, indicate in sufficient detail why withholding is proper.
Plaintiff challenges the Bureau's withholding of four communications between employees at the Bureau and attorneys at the Department of Justice.
In assessing whether the proponent has carried its burden to show a document is protected as work-product, the relevant inquiry is "whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared. . . because of the prospect of litigation." EEOC v. Lutheran Soc. Servs., 186 F.3d 959, 968 (D.C.Cir.1999). Although an agency need not have a specific claim in mind when preparing the documents, there must exist some articulable claim that is likely to lead to litigation in order to qualify the documents as attorney work-product. Coastal States Gas Corp., 617 F.2d at 865; Am. Immigration Council v. Dep't of Homeland Security, 905 F.Supp.2d 206, 221 (D.D.C.2012) (work product encompasses documents prepared for litigation that is "foreseeable," if not necessarily imminent; "documents that . . . advise the agency of the types of legal challenges likely to be mounted to a proposed program, potential defenses available to the agency, and the likely outcome," are covered).
In this case, the CFPB's affidavit and Vaughn index consistently demonstrate that the documents were prepared in reasonable anticipation of litigation challenging the appointment of Director Cordray. It is a matter of public record that the legality of the appointment was immediately questioned by some members of Congress, and the recess appointments of three members of the National Labor Relations Board made on the same day as Director Cordray's were the subject of litigation in this court within two weeks thereafter. Def.'s Mot. at 3. The emails at issue here were written within one to four weeks following the recess appointment; they involve the Justice Department attorneys authorized to represent the Bureau in litigation; and they are described in the Vaughn index as containing advice and analysis regarding potential legal challenges to the appointment. Kitt Decl. ¶¶ 25-27, Vaughn Index at 9 (Bates 339-382), 16 (Bates 423), 28 (Bates 578-79), 30 (Bates 658), 31 (Bates 666-69). Accordingly, the records fall within the attorney work product privilege. As a result, the court does not reach the question whether they are also protected by the attorney-client privilege.
Finally, Judicial Watch challenges the Bureau's withholding, under the presidential communications privilege, of two email exchanges between White House counsel and CFPB employees.
Id. at 752 (emphasis added).
Under FOIA, "[i]f a document contains exempt information, the agency must still release any reasonably segregable portion after deletion of the nondisclosable portions." Oglesby v. U.S. Dep't of
For the foregoing reasons, Defendant's motion for summary judgment is
