UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VERN MCKINLEY,
Plaintiff,
v.
Civil Action 10-01165 (HHK)
FEDERAL HOUSING FINANCE
AGENCY,
Defendant.
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 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
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McKinley originally sought three documents, but has dropped his claim to one of
them. This opinion, however, refers to the remaining documents as “Document 2” and
“Document 3” because the parties’ filings and exhibits do so.
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.
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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, 607 F.2d 339, 352
(D.C. Cir. 1978) (quoting Nat’l Cable Television Ass’n, Inc. v. FCC, 479 F.2d 183, 186 (D.C.
Cir. 1973)) (internal quotation marks omitted). If the agency withholds documents under a FOIA
exemption, it may earn summary judgment by producing affidavits or declarations that describe
“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). The exemptions, however, “are to be
narrowly construed,” FBI v. Abramson, 456 U.S. 615, 630 (1982). If the Court finds that any
records were improperly withheld, it may order their production. 5 U.S.C. § 552(a)(4)(B).
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 the withholding of the entirety of each document. The Court addresses each
privilege in turn.
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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, 598 F.3d 865, 867 (D.C. Cir.
2010). A document is the former if “it was generated before the adoption of an agency policy”
and is the latter if “it reflects the give-and-take of the consultative process.” Coastal States Gas
Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980); accord Judicial Watch, Inc. v.
FDA, 449 F.3d 141, 151 (D.C. Cir. 2006).
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., 2011 WL 2162896, at *7 (D.C. Cir. Jun. 3, 2011). The D.C.
Circuit further explained that it would be impracticable for courts to determine on a case-by-case
basis whether the release of predecisional materials would be harmful. See id. at *7–8 (citing
Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 775 (D.C. Cir. 1988) (en banc)). It is
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thus clear that McKinley’s position rests on an erroneous understanding of what must be shown
for the deliberative-process privilege to apply.
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 Decl.”) ¶¶ 13–14.
McKinley does not contend otherwise. Thus, the Court concludes that the documents are
protected by the deliberative-process privilege. See Renegotiation Bd. v. Grumman Aircraft
Eng’g Corp., 421 U.S. 168, 184 (1975) (“[P]redecisional memoranda prepared in order to assist
an agency decisionmaker in arriving at his decision . . . are exempt from disclosure . . . .”
(emphasis added)).
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, 550 F.3d 32, 38 (D.C. Cir. 2008). Here, FHFA has undertaken no segregability analysis
because it believes that the documents are also protected by the work-product doctrine, which
does not require the segregation of disclosable material. See Judicial Watch, Inc. v. Dep’t of
Justice, 432 F.3d 366, 371 (D.C. Cir. 2005). Thus, to determine whether FHFA has properly
withheld the entirety of both documents, the Court must determine whether they are protected
work product.
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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, 610 F.3d 129, 134–35 (D.C. Cir. 2010); In re Sealed Case, 146 F.3d 881,
884 (D.C. Cir. 1998). Thus, the essential question here is whether these records were prepared in
anticipation of litigation. See In re Sealed Case, 146 F.3d at 884.
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.
2
See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
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Vaughn Index at 1.
McKinley contends that these descriptions reveal that the two documents were created to
help FHFA decisionmakers 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., 242 F.R.D. 16,
18 (D.D.C. 2007) (quoting Willingham v. Ashcroft, 228 F.R.D. 1, 4 (D.D.C. 2005)) (internal
quotation marks omitted). If so, it is unprotected.
Here, the Court lacks the information necessary to answer that question. See Delaney,
Migdail & Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C. Cir. 1987) (“The agency must
provide the reviewing court with materials conveying the nature of the withheld documents in a
manner that permits the court to critically evaluate the merit of the agency’s claim of privilege.”).
After reviewing the Vaughn Index, the Court cannot discern the proportion of the documents’
contents that is devoted to the possibility of litigation, or the depth of that discussion. Likewise,
the FHFA’s affidavits are insufficient to establish that the documents would have been created in
essentially similar form irrespective of the litigation. Accordingly, the Court will order FHFA to
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produce the two documents for in camera inspection. See Quinon v. FBI, 86 F.3d 1222, 1228
(D.C. Cir. 1996) (noting that “in camera review may be particularly appropriate when . . . the
agency affidavits are insufficiently detailed to permit meaningful review of exemption claims”).
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.
Henry H. Kennedy, Jr.
United States District Judge
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