Cause of Action Institute v. U.S. Department of Justice

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CAUSE OF ACTION INSTITUTE, Plaintiff, v. Civil Action No. 17-1423 (JEB) UNITED STATES DEPARTMENT OF JUSTICE, Defendant. MEMORANDUM OPINION Plaintiff Cause of Action Institute caught wind of a congressional committee’s instruction to various government agencies to withhold certain records in response to Freedom of Information Act requests. Hoping to uncover the agencies’ reactions to this directive, the Institute filed a FOIA request with Defendant United States Department of Justice. Frustrated with DOJ’s delayed response, the Institute then initiated this suit. DOJ eventually identified and turned over responsive records, but partially redacted some and refused to provide others, citing the protections afforded by FOIA Exemptions 5 and 6. Both parties now move for summary judgment. In so doing, the Institute concedes the adequacy of the Government’s search and presents no challenge to its redactions of personal information. But it does take issue with information withheld pursuant to two privileges under Exemption 5’s umbrella: the attorney-client privilege and the deliberative-process privilege. After conducting an in camera review of the documents at issue, the Court finds merit in both parties’ Motions. It agrees that the claimed privileges do indeed cover a subset of the withheld documents, but concludes that they do not extend quite as 1 far as DOJ claims. Some of the redacted content reveals no confidential communication within the scope of an attorney-client relationship and no deliberation of agency personnel. The Court, therefore, grants in part and denies in part each side’s Motion for Summary Judgment. I. Background Little need be said to tee up the narrow issues at play. In the spring of 2017, Representative Jeb Hensarling, Chairman of the United States House of Representatives Committee on Financial Services, sent a letter to the twelve agencies within his committee’s jurisdiction. This letter instructed the agencies that communications with the committee should be treated as “congressional records” rather than “agency records.” See ECF No. 1 (Compl.), Exh. 1 (FOIA Request) at 8-9 (Letter from Chairman Hall to Secretary Mnuchin (Apr. 3, 2017)). The import of this instruction for FOIA requests is significant: while “agency records” must generally be turned over in response to a FOIA request, “congressional records” are often protected from disclosure. Id. For this reason, the letter requested that the agencies “decline to produce any such congressional records in response to a request under the Freedom of Information Act.” Id. at 9. The Chairman’s letter found its way into the hands of the press, prompting the Institute to file a FOIA request with DOJ to obtain additional information. See ECF No. 16 (Pl. MSJ & Opp.) at 3. Plaintiff sought “[a]ll communications” between two DOJ divisions – the Office of Information Policy (OIP) and the Office of Legislative Affairs (OLA) – and any of the twelve agencies under the Financial Services Committee’s purview concerning the Chairman’s “directive.” FOIA Request at 2-3 (Letter from Ryan P. Mulvey, CoA Inst., to Laurie Day, DOJ OIP (May 18, 2017)). The request also sought ...

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