Protect Democracy Project, Inc. v. U.S. Department of Health & Human Services

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PROTECT DEMOCRACY PROJECT, INC.,

Plaintiff,

v.
Civil Action No. 17-792 (RDM)
U.S. DEPARTMENT OF HEALTH &
HUMAN SERVICES,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Protect Democracy Project, Inc. (“Protect Democracy”) brings this Freedom of

Information Act, 5 U.S.C. §552 (“FOIA”) action, seeking to compel the Department of Health

and Human Services to release records related to the discontinuation of advertising for

healthcare.gov, the federal health insurance marketplace, during the final weeks of the 2016-17

open enrollment period. The case is currently before the Court on the parties’ cross-motions for

summary judgment. See Dkt. 18; Dkt. 20. The issues raised by those motions have been

narrowed over the course of briefing, and the only remaining question before the Court is

whether the Department lawfully invoked FOIA Exemption 5—in particular, the deliberative

process and attorney-client privileges—to withhold the disputed records or portions of records.

For the reasons explained below, the Court concludes that it currently lacks sufficient

information to decide this question with respect to the deliberative process privilege, and that,

with one exception, in camera review of the disputed material is premature. With respect to the

Department’s assertion of attorney-client privilege, however, the Court concludes that the
Department has met its burden. The Court will, accordingly, GRANT in part and DENY in part

both the Department’s motion for summary judgment and Protect Democracy’s cross-motion.

I. BACKGROUND

On February 15, 2017, Protect Democracy submitted a FOIA request to the Department

seeking the following records:

(1) Documents between and among employees of the Department of Health
and Human Services (“HHS”) and/or the Centers for Medicare and
Medicaid Services (“CMS”) “concerning the decision to discontinue
advertising for healthcare.gov and/or enrollment in healthcare
coverage;”
(2) Documents between the HHS and/or CMS transition teams and the
White House concerning the same;
(3) Documents between and among employees of HHS and/or CMS
“concerning the effect of the Trump Administration’s decision to
discontinue the advertising detailed above on enrollment numbers;”
(4) Documents between and among employees of the HHS Office of Public
Affairs and/or CMS Offices of Communications “concerning the article
published by Politico on January 26, 2017 entitled, ‘Trump White House
Abruptly Halts Obamacare Ads;’”
(5) Documents between and among employees of HHS and/or CMS
“concerning the number of people who enrolled in healthcare coverage
after President Trump took office;” and
(6) Documents between HHS and/or CMS employees and the White House
concerning the same.
Dkt. 1 at 2–3 (Compl. ¶ 5). When the Department did not timely respond to the request, see 5

U.S.C. § 552(a)(6)(A)(i), Protect Democracy commenced this action, see Dkt. 1 (Compl.).

Subsequently, the Department conducted a search for responsive records and released 274 pages

of records to Protect Democracy, redacting certain portions pursuant to FOIA Exemption 5. Dkt.

18-1 at 7. This initial production consisted of 33 pages located in the files of the Office of the

Secretary—which the Department refers to as the “HHS production”—and 241 pages of records

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located in the files of the Centers for Medicare and Medicaid Services (“CMS”)—which the

Department refers to as the “CMS production.” See Dkt. 20 at 11–12; Dkt. 25 at 6–7.

On December 15, 2017, the Department moved for summary judgment, Dkt. 18, and on

January 23, 2018, Protect Democracy filed its cross-motion for summary judgment, Dkt. 20. In

its cross-motion, Protect Democracy argued both that (1) the Department did not conduct an

adequate search, and (2) the Department unlawfully redacted numerous records pursuant to

FOIA Exemption 5. Dkt. 20 at 21. With respect to the redacted material, Protect Democracy

requested that the Court order the Department to re-produce the relevant records without the

improper redactions and to produce a more detailed Vaughn index (or, in the alternative, to

submit the unredacted versions of the relevant records to the Court for in camera review). Id. at

26.

After reviewing Protect Democracy’s opposition and cross-motion, the Department

requested an extension of time to file its final brief so that it could conduct further searches for

potentially responsive records, Dkt. 22, and the Court granted that request, Minute Order (Feb.

21, 2018). The Department then conducted supplemental searches and released an additional

256 pages of responsive records. Dkt. 27 at 12. At the same time, moreover, the Department

reconsidered some of its prior withholdings and released unredacted copies of a handful of

documents. Id. at 4. This effort had the desired effect of narrowing the scope of the dispute, and

Protect Democracy withdrew its challenge to the adequacy of the Department’s searches and its

challenge with respect to the records that the Department re-released without redactions. Id.

Protect Democracy, however, continues to challenge the Department’s invocation of Exemption

5, arguing that, with respect to some redactions, it is evident that the Department has misapplied

Exemption 5 and that, as to others, the Vaughn index and supporting declarations offer

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insufficient detail to permit Protect Democracy or the Court to determine whether the redactions

were lawful. Id.

The sole remaining issue before the Court is whether the Department lawfully redacted

various records—in both its initial and supplemental productions—pursuant to Exemption 5.

II. LEGAL STANDARD

The Freedom of Information Act is premised on the notion that “an informed citizenry

[is] vital to the functioning of a democratic society . . . [and] needed to check against corruption

and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co.,

437 U.S. 214, 242 (1978). FOIA embodies a “general philosophy of full agency disclosure,”

U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 494 (1994) (quoting Dep’t of Air

Force v. Rose, 425 U.S. 352, 360 (1976)), mandating that an agency disclose records on request

unless they fall within one of nine exemptions. See 5 U.S.C. § 552(b). “These exemptions are

‘explicitly made exclusive’ and must be ‘narrowly construed.’” Milner v. Dep’t of Navy, 562

U.S. 562, 565 (2011) (first quoting EPA v. Mink, 410 U.S. 73, 79 (1973), then quoting FBI v.

Abramson, 456 U.S. 615, 630 (1982)). The agency bears the burden of showing that a claimed

exemption applies. Fed. Open Mkt. Comm. of the Fed. Reserve Sys. v. Merrill, 443 U.S. 340,

352 (1979); Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008).

FOIA cases are typically resolved on motions for summary judgment under Federal Rule

of Civil Procedure 56. See Beltranena v. U.S. Dep’t of State, 821 F. Supp. 2d 167, 175 (D.D.C.

2011). To prevail on a summary judgment motion, the moving party must demonstrate that there

are no genuine issues of material fact and that she is entitled to judgment as a matter of

law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). An agency may meet this

burden by submitting “relatively detailed and non-conclusory” affidavits or declarations,

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SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and an index of the

information withheld, Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973). In a FOIA case,

the Court may award summary judgment solely on the basis of information provided by an

agency in declarations when those declarations 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 Gallant v. NLRB, 26 F.3d 168, 171 (D.C.

Cir. 1994).

A reviewing court should “respect the expertise of an agency” and not “overstep the

proper limits of the judicial role in FOIA review.” Hayden v. Nat’l Sec. Agency/Cent. Sec.

Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979). “[E]xemptions from disclosure,” however, “must

be narrowly construed . . . and conclusory and generalized allegations of exemptions are

unacceptable.” Morley v. CIA, 508 F.3d 1108, 1114–15 (D.C. Cir. 2007) (citation and internal

quotation marks omitted). The Court reviews the agency’s decision de novo. See 5 U.S.C. §

552(a)(4)(B).

III. ANALYSIS

Exemption 5 protects “inter-agency or intra-agency memorandums or letters that would

not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. §

552(b)(5). The exemption shields “those documents . . . normally privileged in the civil

discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Courts have,

accordingly, looked to the three traditional civil discovery privileges in evaluating whether an

agency has lawfully withheld agency records pursuant to Exemption 5: “(1) the attorney work-

5
product privilege; (2) the deliberative process privilege; and (3) the attorney-client

privilege.” Wright v. U.S. Dep’t of Justice, 121 F. Supp. 3d 171, 184 (D.D.C. 2015).

To justify its redactions, the Department relies on the deliberative process and attorney-

client privileges. See Dkt. 18 at 10–19. Protect Democracy, in turn, contends that it is evident

from the available information that some of the redactions at issue do not qualify for either

privilege and that, as to other redactions, the Department’s Vaughn index and supporting

declarations fail to provide sufficient information to support the redactions. See Dkt. 20 at 21–

25.

A. Deliberative Process Privilege

The deliberative process privilege protects “documents ‘reflecting advisory opinions,

recommendations and deliberations comprising part of a process by which governmental

decisions and policies are formulated.’” Sears, Roebuck & Co., 421 U.S. at 150 (quoting Carl

Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)). The “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.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532

U.S. 1, 8–9 (2001) (citations omitted).

“To qualify for withholding under Exemption 5’s [deliberative process] privilege,

information must be both ‘predecisional’ and ‘deliberative.’” Petroleum Info. Corp. v. U.S.

Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992); see also Nat’l Sec. Archive v. CIA, 752

F.3d 460, 463 (D.C. Cir. 2014); Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006).

A record “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,” and it is “deliberative if
6
it ‘reflects the give-and-take of the consultative process.’” Petroleum Info. Corp., 976 F.2d at

1434 (citations omitted). As with other FOIA exemptions, the agency bears the burden of

showing that it has properly invoked the privilege. See, e.g., Prop. of the People, Inc. v. Office of

Mgmt. & Budget, 330 F. Supp. 3d 373, 380 (D.D.C. 2018).

Protect Democracy contends that the Department has relied on the deliberative process

privilege “far too broadly” and, in any event, has failed to carry its burden of demonstrating that

it has lawfully invoked the privilege. Dkt. 20 at 21. Without going document-by-document,

Protect Democracy points to examples of inconsistent redactions between the HHS and the CMS

productions and examples of redactions of what appear to be factual or post-deliberative

material. Id. at 22–24. More generally, it argues that the Department’s Vaughn indices and

declarations fail to provide descriptions of the withheld material that are adequate to permit it or

the Court to determine whether the privilege is applicable. Id. at 23–24; see also Dkt. 27 at 5–

11. The Department, in turn, responds that inconsistent redactions are not fatal because

“Exemption 5 withholdings are discretionary by nature,” Dkt. 25 at 20; that any factual material

was properly redacted as “inextricably intertwined with the deliberative sections of documents,”

id.; that there is nothing wrong with formulaic Vaughn index entries, particularly “when a FOIA

request expressly seeks communications that are part of one ongoing deliberative process over

the course of a short period of time,” id. at 21; and that the post-deliberative material identified

by Protect Democracy has now been produced, id. at 22.

Protect Democracy’s challenge to the adequacy of the Department’s Vaughn indices is

sound and provides sufficient basis to deny the Department’s motion for summary judgment with

respect to the deliberative process privilege. Because the Court cannot determine, on the current

record, whether the Department has lawfully invoked the deliberative process privilege, the

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Court must also deny Protect Democracy’s cross-motion for summary judgment. Finally, with

one exception detailed below, the Court will deny—at least for now—Protect Democracy’s

alternative request that the Court conduct an in camera review of the documents. The Court will,

instead, order that the Department supplement its Vaughn indices and/or declarations to address

the concerns discussed below.

1. Adequacy of the Department’s Vaughn Indices

When evaluating assertions of the deliberative process privilege, courts “must give

considerable deference to the agency’s explanation of its decisional process, due to the agency’s

expertise in determining ‘what confidentiality is needed to prevent injury to the quality of agency

decisions.’” Pfeiffer v. CIA, 721 F. Supp. 337, 340 (D.D.C. 1989) (citation omitted). Still, to

meet its burden, the agency must offer “a relatively detailed justification” for assertion of the

privilege. Elec. Privacy Info. Ctr. v. U.S. Drug Enf’t Agency, 192 F. Supp. 3d 92, 103 (D.D.C.

2016) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir.

1977)). The agency “cannot justify its withholdings on the basis of summary statements that

merely reiterate legal standards or offer ‘far-ranging category definitions for information.’”

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 955 F. Supp. 2d 4, 13

(D.D.C. 2013) (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210, 221 (D.C. Cir. 1987)).

“The need to describe each withheld document when Exemption 5 is at issue is

particularly acute because ‘the deliberative process privilege is so dependent upon the individual

document and the role it plays in the administrative process.’” Animal Legal Def. Fund, Inc. v.

U.S. Dep’t of Air Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999) (quoting Coastal States v. U.S.

Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980)). Under the deliberative process privilege,

unlike other exemptions where the agency declaration and Vaughn index may
be read in conjunction to provide an adequate justification for application of an
exemption to a class or category of records, to sustain its burden of showing that
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 records were properly withheld under Exemption 5, an agency must provide in
its declaration and Vaughn index precisely tailored explanations for each
withheld record at issue.

Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 188 (D.D.C. 2013). At the very least, an

agency is required to provide the following information for each document at issue: “(1) the

nature of the specific deliberative process involved, (2) the function and significance of the

document in that process, and (3) the nature of the decisionmaking authority vested in the

document’s author and recipient.” Id. at 189 (citing Senate of P.R. v. U.S. Dep’t of Justice, 823

F.2d 574, 585–86 (D.C. Cir. 1987); Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257–58 (D.C.

Cir. 1982); Coastal States, 617 F.2d at 867–68). Here, at least in many instances, the

Department’s Vaughn indices and declarations lack detail sufficient to satisfy this burden.

First, although the Department does note that the deliberations at issue dealt with the

subject of the FOIA request—i.e., the Department’s discontinuation of ACA advertisements—its

Vaughn indices and declarations are otherwise devoid of any detail about the nature of relevant

deliberations. The declarations submitted in support of the Exemption 5 withholdings from the

HHS initial and supplemental productions, for example, merely note that “HHS invoked this

privilege to protect deliberative recommendations concerning the discontinuation of certain

advertisements for healthcare.gov.” Dkt. 18-2 at 7 (Marquis Decl. ¶ 17); Dkt. 25-1 at 8 (Bell

Decl. ¶ 19). The Vaugh index relating to the initial HHS production is similarly anemic. With

one exception, it merely repeats the same uninformative description for each withholding:

“redacted material consists of pre-decisional, deliberative recommendations concerning the

discontinuation of certain advertisements for healthcare.gov.” See Dkt. 18-2 at 110–13 (Ex. 10).

Many of the Vaughn descriptions for the Department’s other productions—the CMS initial

production, the CMS supplemental production, and the HHS supplemental production—contain

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this same description. See Dkt. 18-3 at 11–23 (Ex. 1); Dkt. 25-1 at 245–55 (Ex. 3); Dkt. 25-2 at

41–42 (Ex. 3). Far from “establish[ing] ‘what deliberative process is involved, and the role

played by the documents in issue in the course of that process,’” Senate of P.R., 823 F.2d at 585–

86 (citation omitted), these meager descriptions give this Court no means by which to assess

whether the privilege applies. They “tell[] the court little,” if anything, “about the deliberative

nature of the information contained in the document in question.” Judicial Watch, 449 F.3d at

152.

A comparison to some of the Department’s other Vaughn descriptions, which provide

more detail, illustrates this deficiency.1 The Department, for example, included Vaughn

descriptions explaining that some of the redacted material contains recommendations (1)

concerning “how to respond to questions from the press, along with draft press release and

talking points,” Dkt. 25-1 at 250 (Ex. 3); (2) concerning “the agency’s response to a letter from

the Governor of Minnesota,” id. at 255 (Ex. 3); and (3) reflecting “a draft of an instruction to a

government contractor,” Dkt. 18-2 at 111 (Ex. 10). These examples show that the Department is

able, contrary to its assertion, to “identify[] the specific proposals and recommendations under

discussion” without “reveal[ing] the information that the exemption is designed to protect.” Dkt.

25 at 21.

The Department argues that its use of identical descriptions across entries does not mean

that those descriptions are inadequate. Dkt. 25 at 21. That is correct, as far as it goes. Courts in

this circuit “permit the satisfaction of the government’s burden of proof . . . through generic,

1
Protect Democracy seems to concede that some of the Department’s Vaughn index entries are
sufficient, making it difficult to discern which documents remain at issue. See, e.g., Dkt. 27 at 8.
If the Department renews its motion and Protect Democracy files a second cross-motion, Protect
Democracy should identify with specificity the discrete withholdings or redactions that it is
contesting.

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categorical showings” in appropriate circumstances. Maydak v. Dep’t of Justice, 218 F.3d 760,

766 (D.C. Cir. 2000). What is insufficient, however, is boilerplate language that might be used

in any Vaughn index in any FOIA case. Because such boilerplate descriptions are unmoored

from the specific rationale for, or the content of, the relevant redactions, they fail to provide the

Court with “a reasonable basis to evaluate the claim of privilege.” Gallant v. NLRB, 26 F.3d at

173 (internal quotation omitted). In other words, the problem is not that each Vaughn entry is

identical; the problem is that the entries lack sufficient detail.

Second, and for much the same reason, the Department fails to make an adequate

showing regarding the function and significance of the withheld material to any agency

deliberations. As noted above, in both the initial and supplemental HHS productions, the

Department “invoked th[e] privilege to protect deliberative recommendations concerning the

discontinuation of certain advertisements for healthcare.gov.” Dkt. 18-2 at 7 (Marquis Decl. ¶

17); Dkt. 25-1 at 8 (Bell Decl. ¶ 19). The Vaughn indices, with minor exception, simply repeat

this conclusory assertion. See generally Dkt. 18-2 at 110–13 (Ex. 10); Dkt. 25-1 at 245–55 (Ex.

3). But that description says nothing of the role the documents played in the deliberative

process.

In this respect, the Department’s descriptions of the materials withheld from the CMS

productions fare better, although they also lack important detail. Most of the entries in the

Vaughn index mirror the uninformative entries provided for the HHS productions. See generally

Dkt. 18-3 at 11–23 (Ex. 1); Dkt. 25-2 at 41–42 (Ex. 3). The relevant declarations, however, offer

additional detail, noting, for example, that some of the redactions were made because the

relevant documents were drafts, subject to further review, edit, and modification, and others were

made because the records were emails reflecting “back and forth discussions between federal

11
employees providing comment, opinion, and recommendations on various subject matter,” Dkt.

18-3 at 8 (Gilmore Decl. ¶ 19); see also Dkt. 25-2 at 6 (Second Gilmore Decl. ¶ 17). But even

this detail is inadequate, because it is not tied to specific records or redactions and because it

provides little insight regarding the nature of the withheld material. Knowing that the redactions

include back and forth discussions providing recommendations on various topics or show the

creation and review of drafts is helpful, but is not enough to permit the Court to determine

whether each redaction at issue is consistent with FOIA.

Finally, in order to show that redactions reflect recommendations, rather than agency

decisions, the agency must provide information relating to “the positions in the chain of

command of the parties to the documents.” Arthur Andersen, 679 F.2d at 258. The vast majority

of the Department’s Vaughn index entries, however, simply note that the withheld materials were

“[e]mail chain[s] . . . between [Department] officials.” See generally Dkt. 18-2 at 110–13 (Ex.

10); Dkt. 18-3 at 11–23 (Ex. 1); Dkt. 25-1 at 245–55 (Ex. 3); Dkt. 25-2 at 41–42 (Ex. 3).

Moreover, although the redacted records do disclose the names and offices of the senders and

recipients, the Department never explains who these individuals are, nor, more importantly, what

role they played in the relevant discussions. Without that information—even in summary

form—the Court cannot “discern whether these communications ‘reflect the give and take of the

deliberative process.’” Nat’l Sec. Counselors, 960 F. Supp. 2d at 191 (quoting Pub. Citizen v.

Office of Mgmt. & Budget, 598 F.3d 965, 976 (D.C. Cir. 2010)).

Having concluded that the Department’s submissions fail to offer sufficient detail to

permit the Court to evaluate whether the redactions were lawful, the Court must decide what this

means for the parties’ respective cross-motions for summary judgment. For one thing, it

certainly means that the Court must deny the Department’s motion. Although perhaps less

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obvious, the same conclusion applies to Protect Democracy’s cross-motion. The Court has not

concluded that Exemption 5 is inapplicable or that the redacted material is not deliberative; it has

merely held that the Department “has failed to supply [the Court] with . . . the minimal

information necessary to make [that] determination.” Coastal States Gas Corp., 617 F. 2d at

861. Because the Department’s submissions give “the court no way to determine whether the

withheld information is of a deliberative nature,” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 152

(D.C. Cir. 2006), the Court cannot reach Protect Democracy’s other arguments—such as its

contention that some of the material at issue appears to be post-decisional or factual—on the

present record.2 Accordingly, under these circumstances, the proper course is to deny Protect

Democracy’s cross-motion as well.

2. Request for In Camera Inspection

At the current stage of proceedings, the Court will—with one exception—also decline

Protect Democracy’s alternative request that the Court conduct an in camera review of the

challenged redactions on a document-by-document basis to determine whether the redacted

material is, in fact, deliberative. Where, as here, a court finds that an “agency [has] fail[ed] to

provide a sufficiently detailed explanation to enable the . . . court to make a de novo

2
Protect Democracy objects, for example, to the Department’s decision to withhold portions of
“a list of Open Enrollment activities planned for the next two weeks,” which was apparently
developed during the closing days of the Obama administration. Dkt. 25-1 at 192–93 (Ex. 1);
see also Dkt. 27 at 10–11. According to Protect Democracy, “[t]he Trump administration’s
decision to revisit this plan does not retroactively make it deliberative.” Dkt. 27 at 10–11. At
least on the present record, it is unclear whether that assertion is correct. The deliberative
process privilege applies to “agency” deliberations, not to deliberations specific to a particular
administration. The email at issue, moreover, was sent on January 23, 2017, after the change in
administrations occurred. It is entirely possible that, as of that date, no final decision had been
made to go forward with the planned activities and that, even if others in the Department had
previously decided to go forward, that decision was not final and remained subject to
deliberations.

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determination of the agency’s claims of exemption, the . . . court . . . has several options,

including inspecting the documents in camera, requesting further affidavits, or allowing the

plaintiff discovery.” Spirko v. U.S. Postal Serv., 147 F.3d 992, 997 (D.C. Cir. 1998). “[A]

district court should not undertake in camera review of withheld documents,” however, “as a

substitute for requiring an agency’s explanation of its claimed exemptions.” Id. Mindful of the

Department’s expertise and “the proper limits of the judicial role in FOIA review,” Hayden, 608

F.2d at 1388, the Court will permit the Department, in the first instance, to offer a more detailed

description of its bases for concluding that each of the redactions at issue was necessary to

protect the deliberative process.

The Court reaches a different conclusion, however, with respect to one document. The

unredacted portion of that document asserts:

Here is what we are providing on the record from HHS spokesman:

“We aren’t going to continue spending millions of taxpayers’ dollars promoting
a failed government program. Once an assessment was made, we pulled back
the most expensive and least efficient part of this massive ad campaign which
was set to run over the weekend. Those cost savings will be returned to the U.S.
Treasury.”

Here is what we are providing on background:

[redacted]

Dkt. 25-1 at 96 (Ex. 1). The Vaughn index reports that the redacted material consists of “draft

talking points.” Id. at 250 (Ex. 3). The accompanying declaration provides no additional

information with respect to this redaction.

Protect Democracy is, understandably, perplexed by the Department’s invocation of the

deliberative process privilege here. It argues that “[t]he context is clear that for both sets of

talking points”—the on the record talking points, and the “background” talking points—“the

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decision had already been made as to what to provide to the press.” Dkt. 27 at 10. The fact that

the second set of talking points were provided on “background,” Protect Democracy further

argues, has no bearing on whether that material was deliberative. Id. The deliberative process

privilege, after all, applies only to “communications that are pre-decisional[,] deliberative,” Nat’l

Sec. Archive, 752 F.3d at 463, and non-public, and it therefore provides no protection for

information that an agency has decided to disseminate—and appears to have disseminated—

whether on the record or on background.

It may be that the Department is correct that the first half of the email reflects a final

agency decision about its (on the record) position, while the second half contains draft (off the

record) comments, subject to further review, consideration, or refinement. The Court cannot

make that determination, however, on the present record, and Protect Democracy has made at

least a prima facie showing that the redacted material was in final form. The Court will,

accordingly, direct that the Department submit an unredacted version of the email to the Court

for ex parte, in camera review.

B. Attorney-Client Privilege

Exemption 5 also incorporates the attorney-client privilege, which protects “confidential

communications between an attorney and his client relating to a legal matter for which the client

has sought professional advice.” Mead Data, 566 F.2d at 252. In FOIA cases, the agency is

typically the “client” and the agency’s lawyers are typically the “attorneys” for the purposes

of attorney-client privilege. See In re Lindsey, 148 F.3d 1100, 1105 (D.C. Cir. 1998)

(citing Coastal States, 617 F.2d at 863). “The attorney-client privilege protects confidential

communications from clients to their attorneys made for the purpose of securing legal advice,”

and “communications from attorneys to their clients if the communications ‘rest on confidential

15
information obtained from the client.’” Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997)

(quoting In re Sealed Case, 737 F.2d 94, 98–99 (D.C. Cir. 1984)).

The Department withheld or redacted only a handful of records based on an assertion of

attorney-client privilege. Protect Democracy, nonetheless, argues that the Department “may . . .

have over-applied” the attorney-client privilege. Dkt. 20 at 24. In particular, Protect Democracy

objects to the Department’s invocation of the attorney-client privilege with respect to “a

communication from non-lawyer Mark Weber to four other non-lawyers . . . and three block

redactions of text that the Vaughn index describes as attorney-client communications without

reference to the communication containing legal advice.” Dkt. 27 at 9–10.

The redacted versions of the first two of these documents, Dkt. 18-2 at 77 (Ex. 9); id. at

79 (Ex. 9), merely show that Mark Weber, who was the Acting Assistant Secretary for Public

Affairs at the relevant time, Dkt. 18-2 at 6 (Marquis Decl. ¶ 14), forwarded two emails to

Michael Marquis, who is the FOIA officer for the Office of the Secretary, id. at 1 (Marquis Decl.

¶ 1), and who, presumably, received the emails for purposes of responding to Protect

Democracy’s FOIA request. The underlying emails, including address information, are redacted

in their entirety. See Dkt. 18-2 at 77 (Ex. 9); id. at 79 (Ex. 9). The Vaughn index, moreover,

does not identify who sent or received the redacted emails, and it merely asserts that the

“redacted material discloses communications between [the Office of General Counsel (“OGC”)]

and CMS concerning the possibility of discontinuing certain advertisements for healthcare.gov.”

Dkt. 18-2 at 110–11 (Ex. 10). The accompanying declaration, in turn, merely repeats this

description. Id. at 8 (Marquis Decl. ¶ 19).

The second two documents, in contrast, reveal the underlying email header. The first of

these is an email from Mark Weber to two Department employees, with two other employees

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listed on the cc line. Dkt. 18-2 at 99 (Ex. 9). None of these employees is identified as associated

with the OGC, and the only substance that is revealed simply states: “Jeff – when you get a

chance give me a call.” Id. (Ex. 9). The second is an email from Weber to Michael Goulding,

whose email address is associated with the OGC. Id. at 101 (Ex. 9). The only disclosed portion

of this email says: “Contact info . . . Thanks.” Id. (Ex. 9). The redacted portion appears below

the signature line, suggesting that it was copied or forwarded from another email. Id. (Ex. 9).

The Vaughn index and supporting declaration, once again, merely assert that the redacted

materials disclose “communications between OGC and CMS concerning the possibility of

discontinuing certain advertisements for healthcare.gov.” Id. at 112 (Ex. 10); id. at 8 (Marquis

Decl. ¶ 19).

Recognizing that this information was too limited to support an assertion of attorney-

client privilege, the Department filed a supplemental declaration along with its reply brief and

opposition to Protect Democracy’s cross-motion. Dkt. 25-1 (Bell Decl.). That declaration attests

as follows:

HHS invoked [the attorney-client] privilege to protect confidential
communications between agency officials and counsel with the Office of
General Counsel (OGC) for purposes of obtaining legal advice, including where
the contents of those communications with counsel were subsequently
disseminated and discussed among agency officials, concerning any legal
ramifications related to the possibility of discontinuing certain advertisements
for healthcare.gov. In this declaration, I am clarifying that the attorney-client
privileged information was withheld from the September 2017 release
(previously described in the declaration of Michael S. Marquis submitted in this
matter) on this basis: confidential communications between OGC and CMS
relating to OGC’s professional legal advice on the discontinuation of
advertisements.

Dkt. 25-1 at 8–9 (Bell Decl. ¶ 20).

With this clarification, the Court is persuaded that the Department lawfully withheld

redacted portions of the four documents based on Exemption 5 and the attorney-client privilege.

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Although the Department has not, with one exception, identified the specific lawyer who

provided the relevant legal advice, it has attested that the Department’s Office of General

Counsel provided legal advice to CMS. It has attested that the redacted communications were

“confidential” and that they were either for the purpose “of obtaining legal advice” or to

disseminate and discuss that advice with other agency officials. Dkt. 25-1 at 8–9 (Bell Decl.

¶ 20). And it has explained that the advice at issue related to “any legal ramifications related to .

. . discontinuing [the] advertisements for healthcare.gov.” Id. In short, the Department has

carried its burden on showing that the communications were between a law office—the Office of

the General Counsel—and a client—CMS (or was passed along to other agency officials); that

those communications were “confidential;” and that they were either for the purpose of securing

or disseminating legal advice. Nothing more is required to maintain the privilege. In re Sealed

Case, 737 F.2d at 98–99.

Protect Democracy, moreover, does not seem to dispute that an attestation by a

knowledgeable official that “the withheld communications contained ‘confidential

communications between OGC and CMS concerning legal advice related to the possibility of

discontinuing certain advertisements for healthcare.gov’” would suffice. Dkt. 27 at 9 (emphasis

omitted) (quoting Dkt. 25-2 at 42 (Ex. 3)). Protect Democracy merely contends that the

Department failed to make such a showing with respect to its initial production. Dkt. 27 at 9–10.

For the reasons explained above, the Court disagrees and, accordingly, concludes that the

Department has carried its burden with respect to the attorney-client privilege.

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 CONCLUSION

For the foregoing reasons, the Department’s motion for summary judgment, Dkt. 18, is

hereby GRANTED in part and DENIED in part. Plaintiff’s cross-motion for summary

judgment, Dkt. 20, is hereby GRANTED in part and DENIED in part.

SO ORDERED.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: February 27, 2019

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