Lawyers' Committee for Civil Rights Under Law v. Office of Management and Budget

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS, et al.,

Plaintiffs,

v.
Civ. Action No. 18-645
U.S. OFFICE OF MANAGEMENT AND (EGS)
BUDGET,

Defendant.

MEMORANDUM OPINION

I. Introduction

Plaintiffs the Lawyers’ Committee for Civil Rights and the

National Women’s Law Center (collectively, “Plaintiffs”) filed

this action against the U.S. Office of Management and Budget

(“OMB,” “Defendant,” or the “agency”) under the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552. See generally Compl.,

ECF No. 1. 1 Plaintiffs seek agency records regarding OMB’s

decision to halt its initiative for the collection of pay data

from employers by the Equal Employment Opportunity Commission

(“EEOC”). See id. ¶ 1.

1 When citing electronic filings throughout this Opinion, the
Court refers to the ECF page numbers, not the page numbers of
the filed documents.
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 On November 24, 2020, the Court denied in part without

prejudice and held in abeyance in part OMB’s Motion for Summary

Judgment. See Lawyers’ Comm. for C.R. v. U.S. Off. of Mgmt. &

Budget, No. 18-CV-645 (EGS), 2020 WL 6887689, at *1 (D.D.C. Nov.

24, 2020). The Court also ordered the parties to submit

supplemental briefing “addressing the foreseeable harm standard,

along with any supplemental evidence Defendant may wish to

provide.” Minute Order (Dec. 30, 2020).

Upon careful consideration of OMB’s motion, the opposition,

and reply thereto, the supplemental briefing, the applicable

law, and the entire record herein, the Court hereby GRANTS OMB’s

Motion for Summary Judgment, see ECF No. 26.

II. Background

A. Factual

On September 20, 2017, Plaintiffs submitted five FOIA

requests to OMB to obtain information about an order issued by

OMB’s Office of Information and Regulatory Affairs under the

Paperwork Reduction Act, 44 U.S.C. § 3501 et seq., to initiate

an indefinite stay and review of the EEOC’s collection of pay

data through its updated EEO-1 form. See Pls.’ Counter-Statement

of Material Facts as to Which There is No Genuine Issue

(“SOMF”), ECF No. 29-1 ¶¶ 1-2. OMB has since disclosed 42

documents with redactions and withheld 23 documents in full. See

Ex. G—OMB’s Revised Vaughn List, Reply Ex. 1 (“Vaughn Index”),

2
ECF No. 30-1 at 127-46. The agency justifies its withholding of

this information under FOIA Exemption 5 and the deliberative

process privilege. See SOMF, ECF No. 29-1 ¶ 3.

B. Procedural

On September 18, 2019, OMB filed its Motion for Summary

Judgment. See Def.’s Mot. Summ. J., ECF No. 26; Mem. P. & A. in

Supp. Def.’s Mot. Summ. J. (“Def.’s Mot.”), ECF No. 26-1.

Plaintiffs filed a brief in opposition on October 25, 2019, see

Pls.’ Mem. P. & A. in Opp’n Def.’s Mot. Summ. J. (“Pls.’

Opp’n”), ECF No. 29; and OMB submitted a reply brief on November

8, 2019, see Reply in Supp. Def.’s Mot. Summ. J. (“Def.’s

Reply”), ECF No. 30.

The Court issued a Memorandum Opinion on November 24, 2020,

denying the motion in part on the issue of whether OMB properly

invoked the deliberative process privilege and holding the

motion in abeyance in part on the issue of whether OMB released

all reasonably segregable information. See Lawyers’ Comm., 2020

WL 6887689, at *4. The Court thereafter ordered OMB to file

supplemental briefing “addressing the foreseeable harm standard,

along with any supplemental evidence Defendant may wish to

provide.” Minute Order (Dec. 30, 2020).

OMB filed its supplemental brief on February 17, 2021, see

Def.’s Suppl. Br., ECF No. 36, and a new declaration from

Heather V. Walsh (“Ms. Walsh”), Deputy General Counsel in OMB’s

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Office of the General Counsel (“OGC”), see Third Decl. of

Heather V. Walsh (“Third Walsh Decl.”), ECF No. 36-1. On March

10, 2021, Plaintiffs submitted an opposition brief, see Pls.’

Suppl. Br., ECF No. 37; and OMB replied on March 24, 2021, see

Reply in Supp. Def.’s Suppl. Br., ECF No. 38. The motion is now

ripe and ready for adjudication.

III. Legal Standard

A. FOIA

FOIA cases are typically and appropriately decided on

motions for summary judgment. Gold Anti–Tr. Action Comm., Inc.

v. Bd. of Governors of Fed. Rsrv. Sys., 762 F. Supp. 2d 123, 130

(D.D.C. 2011) (citation and internal quotation marks omitted).

Summary judgment is warranted “if the movant shows [by affidavit

or other admissible evidence] that there is no genuine dispute

as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). A party opposing a

summary judgment motion must show that a genuine factual issue

exists by “(A) citing to particular parts of materials in the

record . . . or (B) showing that the materials cited do not

establish the absence . . . of a genuine dispute.” Fed. R. Civ.

P. 56(c). Any factual assertions in the moving party’s

affidavits will be accepted as true unless the opposing party

submits his own affidavits or other documentary evidence

contradicting the assertion. See Neal v. Kelly, 963 F.2d 453,

4
456 (D.C. Cir. 1992). However, “the inferences to be drawn from

the underlying facts . . . must be viewed in the light most

favorable to the party opposing the motion.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(citation and internal quotation marks omitted).

An agency has the burden of demonstrating that “each

document that falls within the class requested either has been

produced, is unidentifiable, or is wholly [or partially] exempt

from the Act’s inspection requirements.” Goland v. CIA, 607 F.2d

339, 352 (D.C. Cir. 1978) (per curiam) (citation and internal

citation marks omitted). In reviewing a summary judgment motion

in the FOIA context, the court must conduct a de novo review of

the record, see 5 U.S.C. § 552(a)(4)(B); but may rely on agency

declarations, see SafeCard Servs. v. SEC, 926 F.2d 1197, 1200

(D.C. Cir. 1991). Agency affidavits or declarations that are

“relatively detailed and non-conclusory . . . are accorded a

presumption of good faith, which cannot be rebutted by purely

speculative claims about the existence and discoverability of

other documents.” Id. (citation and internal quotation marks

omitted). “The Court may grant summary judgment based solely on

information provided in an agency’s affidavits or declarations

when they describe ‘the documents and the justifications for

nondisclosure with reasonably specific detail, demonstrate that

the information withheld logically falls within the claimed

5
exemption, and are not controverted by either contrary evidence

in the record nor by evidence of agency bad faith.’” Sierra Club

v. U.S. Fish & Wildlife Serv., 523 F. Supp. 3d 24, 31-32 (D.D.C.

2021) (quoting Mil. Audit Project v. Casey, 656 F.2d 724, 738

(D.C. Cir. 1981)).

B. FOIA Exemptions

Congress enacted FOIA to “‘open up the workings of

government to public scrutiny through the disclosure of

government records.’” Jud. Watch, Inc. v. U.S. Dep’t of Com.,

375 F. Supp. 3d 93, 97 (D.D.C. 2019) (quoting Stern v. FBI, 737

F.2d 84, 88 (D.C. Cir. 1984)). Although the legislation is aimed

toward “open[ness] . . . of government,” id.; Congress

acknowledged that “legitimate governmental and private interests

could be harmed by release of certain types of information,”

Critical Mass Energy Project v. Nuclear Regul. Comm’n, 975 F.2d

871, 872 (D.C. Cir. 1992) (citation and internal quotation marks

omitted). As such, pursuant to FOIA’s nine exemptions, an agency

may withhold requested information. 5 U.S.C. § 552(b)(1)-(9).

However, “[b]ecause FOIA establishes a strong presumption in

favor of disclosure, requested material must be disclosed unless

it falls squarely within one of the nine exemptions carved out

in the Act.” Burka v. U.S. Dep’t of Health & Hum. Servs., 87

F.3d 508, 515 (D.C. Cir. 1996) (citations omitted).

6
 “The agency bears the burden of justifying any

withholding.” Bigwood v. U.S. Agency for Int’l Dev., 484 F.

Supp. 2d 68, 74 (D.D.C. 2007). “To enable the Court to determine

whether documents properly were withheld, the agency must

provide a detailed description of the information withheld

through the submission of a so-called ‘Vaughn index,’

sufficiently detailed affidavits or declarations, or both.”

Hussain v. U.S. Dep’t of Homeland Sec., 674 F. Supp. 2d 260, 267

(D.D.C. 2009) (citations omitted). Although there is no set

formula for a Vaughn index, the agency must “disclos[e] as much

information as possible without thwarting the exemption’s

purpose.” King v. Dep't of Just., 830 F.2d 210, 224 (D.C. Cir.

1987). “Ultimately, an agency’s justification for invoking a

FOIA exemption is sufficient if it appears logical or

plausible.” Jud. Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d

937, 941 (D.C. Cir. 2013) (per curiam) (citation and internal

quotation marks omitted).

IV. Analysis

FOIA Exemption 5 shields from disclosure “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). A document will fall under

Exemption 5 if it meets two conditions: “‘its source must be a

Government agency, and it must fall within the ambit of a

7
privilege against discovery under judicial standards that would

govern litigation against the agency that holds it.’” Stolt–

Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 733

(D.C. Cir. 2008) (quoting Dep’t of Interior v. Klamath Water

Users Protective Ass’n, 532 U.S. 1, 8 (2001)). Accordingly, this

exemption incorporates various common-law privileges, including

the deliberative process privilege. Jud. Watch, Inc. v. Dep’t of

Energy, 412 F.3d 125, 129 (D.C. Cir. 2005) (quoting Bureau of

Nat’l Affs. v. Dep’t of Just., 742 F.2d 1484, 1496 (D.C. Cir.

1984)).

To assert the privilege, the agency must establish that the

document at issue is both “predecisional and deliberative.”

Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364, 370 (D.C.

Cir. 2020). A document is predecisional if it was “generated

before the agency’s final decision on the matter” and

deliberative if it was “prepared to help the agency formulate

its position.” Campaign Legal Ctr. v. U.S. Dep’t of Just., 34

F.4th 14, 23 (D.C. Cir. 2022) (quoting U.S. Fish & Wildlife

Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 786 (2021)). The

deliberative process privilege “should be construed ‘as narrowly

as consistent with efficient Government operation.’” Tax’n With

Representation Fund v. I.R.S., 646 F.2d 666, 677 (D.C. Cir.

1981) (quoting EPA v. Mink, 410 U.S. 73, 87 (1973)).

8
 The FOIA Improvement Act (“FIA”), Pub. L. No. 114-185, 130

Stat. 538 (2016), imposes an additional requirement on agencies

seeking to invoke this or any other FOIA exemption. In relevant

part, the FIA provides that: “An agency shall . . . withhold

information under this section only if . . . (I) the agency

reasonably foresees that disclosure would harm an interest

protected by [a FOIA] exemption; or (II) disclosure is

prohibited by law.” 5 U.S.C. § 552(a)(8)(A). In other words, “an

agency must release a record—even if it falls within a FOIA

exemption—if releasing the record would not reasonably harm an

exemption-protected interest and if its disclosure is not

prohibited by law.” Rosenberg v. U.S. Dep’t of Def., 342 F.

Supp. 3d 62, 73 (D.D.C. 2018), on reconsideration in part, 442

F. Supp. 3d 240 (D.D.C. 2020).

Here, OMB has invoked the deliberative process privilege to

withhold 23 documents in full and 42 documents in part. There is

no dispute that the withheld information is predecisional. See

SOMF, ECF No. 29-1 ¶ 7. The Court agrees with this assessment

because the documents are “antecedent” to OMB’s decision to

issue the review-and-stay memorandum. Jud. Watch, Inc. v. U.S.

Postal Serv., 297 F. Supp. 2d 252, 259 (D.D.C. 2004) (citation

omitted); see SOMF, ECF No. 29-1 ¶ 7 (“[A]ll of the information

withheld predated OMB’s final decision on August 29, 2017.”).

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 Three issues remain in this litigation: (1) whether the

documents at issue are deliberative; (2) whether OMB has

satisfied the foreseeable harm standard; and (3) whether OMB has

released all reasonably segregable information. For the reasons

listed below, the Court determines that the withholdings are

deliberative; OMB has satisfied the foreseeable harm standard;

and OMB has met its segregability obligations.

A. The Documents OMB Withheld Are Deliberative

“[A] ‘deliberative’ document is one that is ‘a direct part

of the deliberative process in that it makes recommendations or

expresses opinions on legal or policy matters.’” Jud. Watch, 297

F. Supp. 2d at 259 (quoting Vaughn v. Rosen, 523 F.2d 1136,

1143–44 (D.C. Cir. 1975)). More specifically, “[o]nly those

portions of a predecisional document that reflect the give and

take of the deliberative process may be withheld.” Pub. Citizen,

Inc. v. Off. of Mgmt. & Budget, 598 F.3d 865, 876 (D.C. Cir.

2010) (citing Access Reports v. Dep’t of Just., 926 F.2d 1192,

1195 (D.C. Cir. 1991)).

OMB uses its Vaughn index, declarations, and briefing to

show that the withheld documents are deliberative. See generally

Def.’s Mot., ECF No. 26-1; Def.’s Reply, ECF No. 30; First Walsh

Decl., ECF No. 26-3, Second Walsh Decl., ECF No. 30-1; Vaughn

Index, ECF No. 30-1 at 127-46. The Court properly considers all

of these materials to determine whether the agency has met its

10
burden. See Jud. Watch, Inc. v. Food & Drug Admin., 449 F.3d

141, 146 (D.C. Cir. 2006) (“Any measure will adequately aid a

court if it ‘provide[s] a relatively detailed justification,

specifically identif[ies] the reasons why a particular exemption

is relevant and correlat[es] those claims with the particular

part of a withheld document to which they apply.’” (quoting Mead

Data Ctr., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251

(D.C. Cir. 1977))).

Plaintiffs challenge application of the deliberative

process privilege to: (1) all of OMB’s withholdings generally;

and (2) nine withheld documents in particular. See Pls.’ Opp’n,

ECF No. 29 at 15-19. The Court addresses each issue in turn.

1. The Withheld Documents Generally

Plaintiffs contend that OMB cannot invoke the deliberative

process privilege to withhold any responsive records because

they claim that the agency has produced insufficient evidence to

support the privilege. See id. at 16-19. First, they argue that

the Vaughn index is inadequate because OMB “repeats th[e] exact

same explanation” for the majority of its entries. Id. at 17-18.

The Vaughn index gives document-specific descriptions for all

documents withheld pursuant to the deliberative process

privilege. See Vaughn Index, ECF No. 30-1 at 127-46. The index

includes ten categories of information: (1) the index entry

number; (2) the FOIA request tracking number; (3) the document

11
ID; (4) the production label range; (5) the document title (or

subject line, in the case of email communications); (6) the

sender (for email communications); (7) the recipient(s) (for

email communications); (8) the total number of pages; (9) the

production status (that is, whether entirely or partially

withheld); and (10) the reason(s) for the withholding. See id.

Although there are 87 2 entries in the index, OMB lists one

of only three distinct reasons for the withholding for each

entry:

• The withheld/redacted information consists
of deliberations internal to the Executive
Branch regarding OMB’s then-pending
decision whether to issue a review and stay
of the EEOC’s pay data collection that was
under consideration among staff of OMB at
the time of the discussion;

• The withheld document consists of
deliberations internal to the Executive
Branch regarding OMB’s then-pending
decision whether to issue a review and stay
of the EEOC’s pay data collection that was
under consideration among staff of OMB at
the time of the discussion, and no factual
information could be segregated and
released without revealing deliberative
information;

• Withheld draft documents in the process of
revision that do not reflect final agency
decisions but are part of a decisionmaking
process regarding OMB’s decision whether to
issue a review and stay of the EEOC’s pay
data collection.

2 The original Vaughn index contained 87 entries but removed 22
entries in its reply briefing. See Second Walsh Decl., ECF No.
30-1 ¶¶ 15-16.
12
Id. As OMB explains in its reply brief, see Def.’s Reply, ECF

No. 30 at 7; a Vaughn index is not inadequate simply because an

agency grouped similar documents into a single category and

provided the same reason for withholding information across that

category, see Landmark Legal Found. v. I.R.S., 267 F.3d 1132,

1138 (D.C. Cir. 2001) (“It is not the agency’s fault that

thousands of documents belonged in the same category, thus

leading to exhaustive repetition.”). Here, OMB has appropriately

grouped its withholdings into two categories: (1) inter-agency

or intra-agency email communications; and (2) draft documents.

Def’s Mot., ECF No. 26 at 13. OMB justifies its withholdings in

each category with one of the three explanations listed above.

See generally Vaughn Index, ECF No. 30-1 at 127-46. The Court

concludes that this approach is adequate to establish that the

withheld documents are deliberative.

Second, Plaintiffs argue that OMB’s evidence is inadequate

because its assertions are conclusory. See Pls.’ Opp’n, ECF No.

29 at 17-18. Plaintiffs are correct that “conclusory assertions

of privilege will not suffice to carry the Government’s burden

of proof in defending FOIA cases.” Coastal States Gas Corp. v.

Dep’t of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980). FOIA

permits withholding only if the agency shows that the document

“reflect[s] the give and take of the deliberative process.” Pub.

13
Citizen, 598 F.3d at 876. OMB therefore must establish two

elements: (1) “what deliberative process is involved”; and (2)

“the role played by the documents in issue in the course of that

process.” Senate of P.R. v. U.S. Dep’t of Just., 823 F.2d 574,

585–86 (D.C. Cir. 1987) (quoting Coastal States Gas Corp., 617

F.2d at 868).

OMB identifies the deliberative process involved for all

its withholdings: “a decision-making process conducted among

staff in OMB or in consultation with other components of the

Executive Office of the President and Executive Branch agencies

pursuant to authority delegated to OMB by the Paperwork

Reduction Act, 44 U.S.C. §§ 3501–3521, over the approval of

collection of information by the federal government” in service

of “OMB’s then-pending decision by OMB on whether to issue a

letter initiating a review and stay of the EEO-1 form.” Def.’s

Mot., ECF No. 26-1 at 13. This aligns with OMB’s statements in

its Vaughn index and declarations, see First Walsh Decl., ECF

No. 26-3; Second Walsh Decl., ECF No. 30-1; Vaughn Index, ECF

No. 30-1 at 127-46; and satisfies the first step of the inquiry.

Plaintiffs argue that OMB’s argument fails at the second

step, claiming that the agency “made no attempt to explain what

role each of these documents played in the deliberative

process.” Pls.’ Opp’n, ECF No. 29 at 18. The Court reviews OMB’s

justifications by category of withholding.

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 The first category of withholdings consists of inter-agency

or intra-agency email communications that OMB withheld in part.

OMB describes the role these emails played in the deliberative

process as “deliberations internal to the Executive Branch

regarding OMB’s then-pending decision whether to issue a review

and stay of the EEOC’s pay data collection that was under

consideration among staff at the time of the discussion.” Vaughn

Index, ECF No. 30-1 at 127-46; Def.’s Reply, ECF No. 30 at 9.

The agency has also produced the date, subject line, sender(s),

and recipient(s) of each email, thereby providing specific

contextual information about each email. See Vaughn Index, ECF

No. 30-1 at 127-46.

Plaintiffs argue that OMB has insufficiently explained the

role these email communications played in the deliberative

process. See Pls.’ Opp’n, ECF No. 29 at 18. OMB responds that it

“cannot be any more specific about the content of the email[s]

and attachments without revealing privileged information the

withholding of which is the very issue in the litigation.”

Def.’s Reply, ECF No. 30 at 9 (citing Oglesby v. U.S. Dep’t of

the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996); Peter S.

Herrick’s Customs & Int’l Trade Newsletter v. USCBP, Civ. A. No.

04-0377 (JDB), 2005 WL 3274073, at *4 (D.D.C. Sept. 22, 2005)).

The Court agrees with OMB. FOIA imposes a “difficult obligation”

on an agency “to justify its actions without compromising its

15
original withholdings by disclosing too much information.” Jud.

Watch, Inc., 449 F.3d at 146. Courts therefore require that

“[t]he description and explanation the agency offers . . .

reveal as much detail as possible as to the nature of the

document, without actually disclosing information that deserves

protection.” Oglesby, 79 F.3d at 1176. Here, the briefing and

declarations, along with the copies of the redacted emails at

issue, “adequately demonstrate that the documents constituted

candid [discussion] about whether and how” OMB should issue a

review-and-stay memorandum. Reps. Comm. for Freedom of the Press

v. Fed. Bureau of Investigation, 3 F.4th 350, 368 (D.C. Cir.

2021) (citing Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir.

2007)). The Court concludes that OMB has supplied sufficient

detail to justify the deliberative role of these email

communications. Compare ECF No. 26-3, and ECF No. 30-1, with

Senate of P.R., 823 F.2d at 585–86 (“The information provided by

the DOJ—consisting almost entirely of each document’s issue

date, its author and intended recipient, and the briefest of

references to its subject matter—will not do.”).

The second category of withholdings consists of draft

documents that OMB withheld in full. In the Vaughn index, OMB

explains the role these documents played in the deliberative

process as “draft[s] in the process of revision that do not

reflect final agency decisions but are part of a decisionmaking

16
process regarding OMB’s decision whether to issue a review and

stay of the EEOC’s pay data collection.” Vaughn Index, ECF No.

30-1 at 127-46; Def.’s Reply, ECF No. 30 at 10. In its briefing

and declarations, the agency further clarifies that these draft

documents played two roles in the deliberative process: (1) the

drafts “were ‘part of both a decisionmaking process regarding

the final composition of such documents’”; and (2) the drafts

“were ‘part of . . . the larger decisionmaking process regarding

OMB’s decision whether to issue a review and stay of the EEOC’s

pay data collection.’” Def.’s Reply, ECF No. 30 at 10 (quoting

First Walsh Decl., ECF No. 26-3 ¶ 14).

Plaintiffs again claim that OMB has not adequately

explained the role these documents played in the deliberative

process. See Pls.’ Opp’n, ECF No. 29 at 18. Indeed, “an agency

cannot withhold the material merely by stating that it is in a

draft document.” Dudman Commc’ns Corp. v. Dep’t of Air Force,

815 F.2d 1565, 1569 (D.C. Cir. 1987). Nonetheless, the Court

concludes that OMB has met its burden. The agency states that

these drafts “do not reflect final agency decisions” but are

instead draft versions of the then-pending decision to issue a

review-and-stay memorandum. Vaughn Index, ECF No. 30-1 at 127-

46; Def.’s Reply, ECF No. 30 at 10. “Proposed drafts of a non-

final agency decision that are still undergoing review, debate,

and editing are the type of deliberative work in progress that

17
falls at the core of the deliberative process privilege.” Reps.

Comm. for Freedom of the Press, 3 F.4th at 364–65 (citing U.S.

Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 786

(2021)).

2. The Nine Documents Plaintiffs Specifically Challenge

In addition to challenging the adequacy of OMB’s evidence,

see Pls.’ Opp’n, ECF No. 29 at 16-19; Plaintiffs also contest

the withholding of nine documents in particular:

Vaughn Index Entry 15: “EEO-1 Outline.docx”
Document;

Vaughn Index Entries 19-22: “EEO-1/Memo for
OIRA” Email and Attachments “Attach1USC,”
“Attach2EEAC,” and “EEO-1 Memo Rao
07.2017.docx”;

Vaughn Index Entry 40: “Call or meet next
week” Email;

Vaughn Index Entry 76: “2017-06-23 -
Memorandum re Equal Pay_.docx” Document;

Vaughn Index Entry 77: “EPA Affirmative
Defense Memo (June 23 2017)” Document;

Vaughn Index Entry 83: “Background Memo on
EEO-1 rt jn.docx” Document.

Id. at 15-16 (citing App. A – Vaughn Index, Ex. A, ECF No. 26-3

at 53, 54-55, 60, 69, 71). Plaintiffs do not raise any new

arguments as to these withholdings. See generally Pls.’ Opp’n,

ECF No. 29. The Court briefly considers each document below.

18
 a. Vaughn Index Entry 15: “EEO-1 Outline” Document

OMB maintains that this document is deliberative because

“[t]he withheld/redacted information consists of deliberations

internal to the Executive Branch regarding OMB’s then-pending

decision whether to issue a review and stay of the EEOC’s pay

data collection that was under consideration among staff of OMB

at the time of the discussion.” Vaughn Index, ECF No. 30-1 at

131. The agency has also provided some contextual information:

the EEO-1 Outline was an attachment to an email dated May 1,

2017, from EEOC Chief of Staff and Senior Counsel Jim Paretti,

Jr. to Deputy and Acting Administrator of OMB’s Office of

Information and Regulatory Affairs Dominic Mancini. See Second

Walsh Decl., ECF No. 30-1 ¶ 3. In the email, Mr. Paretti

explains that the outline is of a presentation by the EEOC’s

Acting Chair. Id. Further, the production shows that the EEO-1

Outline was forwarded to other OMB employees. See id. The Court

concludes that OMB has provided reasonably specific detail as to

the role this outline played in the deliberative process. See

Reps. Comm. for Freedom of the Press, 3 F.4th at 368.

b. Vaughn Index Entries 19-22: “EEO-1/Memo for OIRA”
Email and Attachments “Attach1USC,” Attach2EEAC,”
and “EEO-1 Memo Rao 07.2017.docx”

These records include: (1) an email from the EEOC Chief of

Staff to the Deputy and Acting Administrator of OMB’s Office of

Information and Regulatory Affairs on July 14, 2017; and (2)

19
three documents attached to that email. See Second Walsh Decl.,

ECF No. 30-1 ¶ 4. OMB withheld all four records in full and

states that these documents can be withheld because they

“consist[] of deliberations internal to the Executive Branch

regarding OMB’s then-pending decision whether to issue a review

and stay of the EEOC's pay data collection that was under

consideration among staff of OMB at the time of the discussion.”

Vaughn Index, ECF No. 30-1 at 131-32. This description, in

combination with the subject line, sender, and recipient of the

email, provides a reasonably specific explanation as to the role

these documents played in the deliberative process. See Reps.

Comm. for Freedom of the Press, 3 F.4th at 368.

Plaintiffs also suggest that Attach1USC and Attach2EEAC

cannot be protected from disclosure by the deliberative process

privilege because they refer to and “presumably discuss or

contain information from” two non-governmental organizations:

the United States Chamber of Commerce and the Equal Employment

Advisory Council. Pls.’ Opp’n, ECF No. 29 at 19. OMB responds

that “Plaintiff’s speculation about what the documents might

contain does not overcome the presumption of good faith accorded

to the Agency’s declaration.” Def.’s Reply, ECF No. 30 at 16.

OMB also points out that this objection does not bear on whether

the documents are deliberative in nature. See id. The Court

agrees with OMB. The Agency has averred that none of the

20
information withheld under Exemption 5 was shared with anyone

outside the Executive Branch. First Walsh Decl., ECF No. 26-3 ¶

9. And it has explained how these documents fit within the scope

of the deliberative process privilege because, as stated in the

Vaughn index, the “withheld/redacted information consists of

deliberations internal to the Executive Branch regarding OMB’s

then-pending decision whether to issue a review and stay of the

EEOC’s pay data collection that was under consideration among

OMB staff at the time of the discussion.” Vaughn Index, ECF No.

30-1 at 132. This explanation provides adequate detail to

establish the role the records played in the deliberative

process. See Reps. Comm. for Freedom of the Press, 3 F.4th at

368.

c. Vaughn Index Entry 40: “Call or Meet Next Week”
Email

This record consists of a series of emails between the EEOC

Acting Chair and the Chief of Staff for Ivanka Trump, then

Advisor to the President. See Second Walsh Decl., ECF No. 30-1 ¶

5. OMB states that it may withhold parts of these email

communications because they “consist[] of deliberations internal

to the Executive Branch regarding OMB’s then-pending decision

whether to issue a review and stay of the EEOC’s pay data

collection that was under consideration among staff of OMB at

the time of the discussion.” Vaughn Index, ECF No. 30-1 at 136.

21
The agency also produced portions of these emails, including

non-deliberative email text. See Ex. C, ECF No. 30-1 at 14-21.

Thus, Ms. Walsh’s explanation, considered with the information

OMB produced for each email in this record, provides a

reasonably specific explanation as to the role these documents

played in the deliberative process. See Reps. Comm. for Freedom

of the Press, 3 F.4th at 368.

d. Vaughn Index Entry No. 76: “2017-06-23 Memorandum
re Equal Pay__.docx” Document; Vaughn Index Entry
No. 77: “EPA Affirmative Defense Memo (June 23
2017).docx” Document; Vaughn Index Entry No. 83:
“Background Memo on EEO-1rt jn.docx” Document

OMB withheld in full “2017-06-23 Memorandum re Equal

Pay_.docx” and “EPA Affirmative Defense Memo (June 23

2017).docx,” and withheld in part “Background Memo on EEO-1rt

jn.docx.” See Second Walsh Decl., ECF No. 30-1 ¶¶ 6-8; First

Walsh Decl., ECF No. 26-3 ¶ 20. The agency justifies all three

documents as deliberative because they “consist[] of

deliberations internal to the Executive Branch regarding OMB’s

then-pending decision whether to issue a review and stay of the

EEOC’s pay data collection that was under consideration among

staff of OMB at the time of the discussion.” Vaughn Index, ECF

No. 30-1 at 143-45. OMB also states that these documents consist

of “discussion[s] involving economic, legal, and policy issues

in which the facts are inextricably intertwined with

deliberative discussion, opinions, and policy recommendations.”

22
Second Walsh Decl., ECF No. 30-1 ¶¶ 6-8. This explanation and

the titles of the documents provide adequate detail to establish

the role the records played in the deliberative process. See

Reps. Comm. for Freedom of the Press, 3 F.4th at 368.

Accordingly, the Court concludes that all of OMB’s

withholdings are deliberative in nature.

B. OMB Has Satisfied the Foreseeable Harm Standard

To invoke the deliberative process privilege, OMB must also

satisfy the foreseeable harm standard set forth in the FIA. See

Reps. Comm. for Freedom of the Press, 3 F.4th at 361. Under this

standard, “[a]n agency shall . . . withhold information under

this section only if . . . (I) the agency reasonably foresees

that disclosure would harm an interest protected by an exemption

described in subsection (b); or (II) disclosure is prohibited by

law.” 5 U.S.C. § 552(a)(8)(A)(i). Congress imposed this

additional requirement on agencies “to foreclose the withholding

of material unless the agency can articulate both the nature of

the harm [from release] and the link between the specified harm

and specific information contained in the material withheld.”

Reps. Comm. for Freedom of the Press, 3 F.4th at 369 (citation

and internal quotation marks omitted). This is a “heightened

standard for an agency’s withholdings under Exemption 5,” Jud.

Watch, Inc., 375 F. Supp. 3d at 100; and it constitutes “an

independent and meaningful burden,” Ctr. for Investigative

23
Reporting v. U.S. Customs & Border Prot., 436 F. Supp. 3d 90,

106 (D.D.C. 2019) (quoting NRDC v. EPA, No. 17-CV-5928 (JMF),

2019 WL 3338266, at *1 (S.D.N.Y. July 25, 2019)).

The parties did not specifically address the foreseeable

harm standard in their initial briefing, and so the Court

ordered supplemental briefing on the issue. See Minute Order

(Dec. 30, 2020). To meet its burden, OMB groups the documents

and discusses the specific foreseeable harms of disclosure on a

category-by-category basis. See Def.’s Suppl. Br., ECF No. 36 at

4. These groups correspond with the three phases of deliberation

preceding the agency’s August 2017 review-and-stay memorandum:

(1) “high-level deliberations among Executive Branch officials

whether to begin in earnest consideration of issuing a review-

and-stay memorandum”; (2) “coordination between the EEOC and OMB

culminat[ing] on July 14, 2017, when the EEOC submitted a formal

petition to OMB asking it to issue a stay of the EEO-1

collection”; and (3) “preparation and issuance of the review-

and-stay memorandum.” Id. As Plaintiffs concede, see Pls.’

Suppl. Br., ECF No. 37 at 3; this “categorical approach” is

permissible.

OMB next identifies two harms that are foreseeable if the

withheld documents are disclosed. See Def.’s Suppl. Br., ECF No.

36 at 3-6. The Court discusses each harm in turn.

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 First, the agency argues that disclosure “can be reasonably

expected to chill candid discussions within OMB and among OMB

and other Executive Branch agencies.” Id. at 3. Ms. Walsh, OMB’s

declarant, articulates the link between this harm and each

category of withheld documents in a third declaration. See Third

Walsh Decl., ECF No. 36-1. As to the first category, Ms. Walsh

draws a direct link between agency staff’s “awareness of, and

confidence in,” the deliberative process privilege and their

“willingness . . . to offer immediate impressions and contrary

arguments about matters before the government.” Id. ¶ 8. She

then points to the specific documents to clarify her point. She

states that Vaughn index entries 1-7, 47, 53-54, 73-74, 83, and

85 “contain strategic advice about initiating a deliberation”

and “arguments regarding particular policy outcomes,” the

release of which would expose the substance and procedure of

“early, high-level decisionmaking . . . to public scrutiny.” Id.

¶ 9. She also states that Vaughn index entries 14, 15, 34, 35,

37, 38, 62, 63, 75, 78, and 84 involve “the creation and editing

of broadly deliberative materials to be shared in a March 2,

2017, meeting, in which the Executive Branch decided to begin in

earnest the consideration of issuing a review-and-stay

memorandum,” the release of which would expose details about the

drafting process and meeting deliberations. Id. ¶ 10. For all

documents, Ms. Walsh explains that disclosure “would prompt OMB

25
staff to be less candid” or perhaps not meaningfully participate

in the deliberative process, which in turn would “seriously

harm[] OMB’s ability to function.” Id.

As to the second category, Ms. Walsh states that disclosure

of these inter-agency communications would inhibit OMB’s ability

to have frank and open discussions on policy matters with other

parts of the Executive Branch. See id. ¶¶ 11-14. She explains

that OMB staff make communications like the ones at issue here

“[o]n a daily basis” and that OMB policy officials rely on these

communications to inform decision makers. Id. ¶ 11. Ms. Walsh

again describes the link between the harm and the specific

documents in this category. She states that release of Vaughn

index entries 17-21, 53-54, and 73-74—documents that contain the

EEOC’s legal analysis—would cause other Executive Branch

agencies to “hesitate to provide or self-censor their

communications to OMB out of concern that the views they offered

would face public scrutiny,” “result[ing] in fewer options being

considered and fewer views being heard on a whole spectrum of

deliberations before OMB.” Id. ¶ 12. Vaughn index entries 22, 23

76, and 77 consist of inquiries and advice following a May 2,

2020 meeting about the opinions of various officials, and their

release, Ms. Walsh states, “would foreseeably inhibit similar

officials from being candid with OMB in the future.” Id. ¶ 13.

She makes the same statement regarding Vaughn index entries 40-

26
42 and 69, which contain substantive discussions between EEOC

and OMB officials about particular decision outcomes. See id. ¶

14. In sum, the agency maintains that disclosure of these

documents “would seriously hamper” OMB’s ability “to coordinate

among the Departments and agencies,” which is “the lifeblood of

OMB’s unique role in the Federal Government.” Id. ¶¶ 11, 14.

Ms. Walsh states that disclosure of the third category of

withholdings “would lead OMB staff to withhold their candid

opinions concerning these types of decisions” because these

documents reveal “the initiation, timing, scope, participants,

drafting, and publication of decisions.” Id. ¶ 15. Specifically,

Vaughn index entries 43, 48-52, 60-61, 64-66, 70, and 72 are

unfinished drafts whose disclosure would expose “the changes

that were suggested by specific staff[] and . . . the drafting

process as a whole, which would likely diminish the candor that

drafters would incorporate into their comments.” Id. ¶ 16.

Plaintiffs concede, as they must, that chilling candid

discussions within OMB and with OMB and other Executive Branch

agencies is the type of harm that the deliberative process

privilege is meant to prevent. Pls.’ Suppl. Br., ECF No. 37 at

3-4; Machado Amadis, 971 F.3d at 371. They instead argue that

Ms. Walsh’s explanation of the link between this harm and the

specific information withheld “sweep[s] too broadly.” Pls.’

Suppl. Br., ECF No. 37 at 4. They contend that OMB has made “a

27
blanket refusal to genuinely engage in the exercise of

determining whether particular material can be released without

harm” and of “taking the position that no substantive

information regarding its decisions . . . can ever be released.”

Id. at 5 (emphasis omitted).

The Court is unpersuaded by Plaintiffs’ argument and

concludes that OMB has adequately linked the harm to OMB’s

inter-agency and intra-agency discussions to the specific

information withheld here. In its declaration, OMB has explained

the content of each category of withholding and the specific

harm that would result from the release of that information. See

Ctr. for Pub. Integrity v. U.S. Dep’t of Def., 486 F. Supp. 3d

317, 337 (D.D.C. 2020). Contrary to Plaintiffs’ position, the

agency “did not present generic, across-the-board articulations

of harm . . . as to a broad range of document types.” Id.

(citation and internal quotation marks omitted). It instead

specifically addressed the information it withheld in each

category and explained why disclosure would harm future inter-

agency and intra-agency discussions. See Third Walsh Decl., ECF

No. 36-1. Accordingly, OMB “correctly understood the governing

legal requirement and reasonably explained why it was met here.”

Machado Amadis, 971 F.3d at 371.

OMB also asserts a second harm: that “releasing [its]

deliberative communications would cause public confusion about

28
[its] motives for or reasoning of the final decision in

question.” Def.’s Suppl. Br., ECF No. 36 at 3-4. Although the

briefing seems to suggest that this harm would result from

disclosure of any withheld document, see generally id. at 3-7;

Ms. Walsh explains how public confusion would ensue from

disclosure of only the third category of withholdings, see Third

Walsh Decl., ECF No. 36-1. She states that release of the draft

documents in Vaughn index entries 43, 48-52, 60-61, 64-66, 70,

and 72 would cause public confusion because those documents

contain arguments for and against certain text as well as

changes, comments, and edits. Id. ¶ 18. Revealing this

information, she continues, “would be likely to create incorrect

impressions in the public about the intentions behind this

record” and would “decreas[e] the certainty the public would

have in interpreting it.” Id. She also states that disclosure of

Vaughn entries 48-51 and 70, which are “clean” drafts without

any visible edits, comments, or “draft” labels, “could . . .

diminish[] the public’s certainty in the veracity of records

purporting to be OMB’s actual policy document.” Id. ¶ 19.

Plaintiffs concede that public confusion is another type of

harm that the deliberative process privilege is meant to

prevent. Pls.’ Suppl. Br., ECF No. 37 at 3-4. They contend,

however, that here, disclosure would not cause confusion but

instead “would provide insight into how the Agency made a

29
decision, which would clear up confusion, to the extent any

exists.” Id. at 5. Plaintiffs also dispute Ms. Walsh’s argument

as to Vaughn entries 48-51 and 70 in particular, stating that

OMB could redact text and append a “draft” label to prevent

public confusion. See id.

The Court concludes that this second harm is also

reasonably foreseeable from disclosure of the withholdings. As

the parties agree, the deliberative process privilege is

intended to protect against “confusing the issues and misleading

the public by dissemination of documents suggesting reasons and

rationales for a course of action which were not in fact the

ultimate reasons for the agency’s action.” Coastal States Gas

Corp., 617 F.2d at 866. The Court concludes that OMB has

explained how release of the documents in the third category of

withholdings would cause this harm. The declaration “goes beyond

the merely formulaic and boilerplate” language that courts

regularly reject. Pub. Emps. for Env’t Resp. v. Dep’t of

Homeland Sec., 575 F. Supp. 3d 34, 51 (D.D.C. 2021).

Plaintiffs contend that permitting these withholdings “is

inconsistent with the aims of both FOIA and the FIA.” Pls.’

Suppl. Br., ECF No. 37 at 5. The Court disagrees. FOIA

establishes a presumption of openness, Jud. Watch, Inc., 375 F.

Supp. 3d at 100; but an agency may overcome that presumption

through its supporting affidavits or declarations, see

30
Rosenberg, 342 F. Supp. 3d at 75. Further, the FIA “was intended

to restrict agencies’ discretion in withholding documents under

FOIA,” Ctr. for Investigative Reporting, 436 F. Supp. 3d at 106;

not to eliminate agencies’ use of the FOIA exemptions

altogether. As explained supra, OMB addressed the documents at

issue and reasonably explained why its withholdings are

appropriate under the FIA. See Machado Amadis, 971 F.3d at 371.

Accordingly, the Court concludes that it is reasonably

foreseeable that specific harms will result from disclosure of

the withheld documents.

C. OMB Has Established That It Produced All Reasonably
Segregable Information

“The focus of the FOIA is information, not documents.” Mead

Data Cent., Inc., 566 F.2d at 260. Therefore, “even if some

materials from the requested record are exempt from disclosure,

any ‘reasonably segregable’ information from those documents

must be disclosed after redaction of the exempt information

unless the exempt portions are ‘inextricably intertwined with

exempt portions.’” Johnson v. Exec. Off. for U.S. Att’ys, 310

F.3d 771, 776 (D.C. Cir. 2002) (quoting 5 U.S.C. § 552(b)). As

relevant here, under Exemption 5, an agency may withhold “[o]nly

those portions of a predecisional document that reflect the give

and take of the deliberative process” and “must disclose those

portions of predecisional and deliberative documents that

31
contain factual information that does not inevitably reveal the

government’s deliberations.” Pub. Citizen, 598 F.3d at 876

(citations and internal quotation marks omitted).

The agency must provide “a detailed justification and not

just conclusory statements to demonstrate that all reasonably

segregable information has been released.” Valfells v. CIA, 717

F. Supp. 2d 110, 120 (D.D.C. 2010) (citation and internal

quotation marks omitted). The Court has an “affirmative duty” to

ensure that the agency satisfies its segregability obligations.

Trans–Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d

1022, 1028 (D.C. Cir. 1999). “Agencies are entitled to a

presumption that they complied with the obligation to disclose

reasonably segregable material,” which must be overcome by some

“quantum of evidence” from the FOIA requester. Sussman v. U.S.

Marshals Serv., 494 F. 3d 1106, 1117 (D.C. Cir. 2007).

Here, OMB argues that it “carefully assessed whether any

factual or otherwise nonexempt information could be segregated

and disclosed” and “determined that all nonexempt segregable

information has been released.” Def.’s Mot., ECF No. 26 at 15

(quoting First Walsh Decl., ECF No. 26-3 ¶ 19). The agency

states that it cannot release any nonexempt information from the

records it withheld in full because those “facts are

inextricably intertwined with deliberative discussion, opinions,

32
and policy recommendations.” Id. (quoting First Walsh Decl., ECF

No. 26-3 ¶ 20).

Plaintiffs argue that OMB failed to produce segregable

information, pointing out that “[e]ven where documents are

subject to the deliberative process privilege, an agency must

release ‘those portions of predecisional and deliberative

documents that contain factual information that does not

inevitably reveal the government’s deliberations.’” Pls.’ Opp’n,

ECF No. 29 at 19 (quoting Pub. Citizen, 598 F.3d at 876).

Plaintiffs argue that the nature OMB’s decision “should have

involved a consideration of the factual matters required by the

applicable rules,” concluding that the documents “likely contain

factual material and that material should be disclosed.” Id.

For example, Plaintiffs point out that “[t]he decision OMB faced

when considering staying the EEO-1 collection of pay data

required a straightforward statement of the [relevant] facts,”

but that OMB did not produce a single document regarding the

facts that would have justified staying the EEO-1 collection of

pay data. Id. at 20. Plaintiffs conclude that the relevant

declaration is “little more than conclusory and boilerplate”

language that merely “repeat[s] the legal standard” and

“offer[s] no meaningful basis” to conclude that OMB met its

segregability obligations and therefore OMB failed to meet its

burden. Id. at 20-21.

33
 In reply, OMB argues that any facts it withheld are

inextricably intertwined with deliberative discussion, opinions,

and policy recommendations, noting that “[i]n some contexts, the

release of factual information does not expose the deliberations

or opinions of agency personnel, but that is not the case here.”

Def.’s Reply, ECF No. 30 at 5-6. OMB argues that the facts it

gathered and considered in its review would reveal the nature of

the deliberations here because “[a] simple bright line between

factual and deliberative material cannot be easily drawn in a

case such as this in which the facts themselves reflect the

Agency’s deliberative process.” Id. at 6.

The Court concludes that OMB has satisfied its

segregability obligations. The Court rejects Plaintiffs’

argument that “the Walsh declaration fails to establish that

none of the withheld information could be segregated and

produced,” Pls.’ Opp’n, ECF No. 29 at 23; because the Walsh

declaration explains that here, the “facts are inextricably

intertwined with deliberative discussion, opinions, and policy

recommendations, such that disclosing any facts, and how they

are presented, would reveal the thought processes of 0MB during

deliberations. Thus, I have determined that disclosure of such

factual material would reveal the nature and substance of the

agency deliberations.” Walsh Decl., ECF No. 26-3 ¶ 20. And the

Court disagrees that OMB’s justifications for withholding

34
factual information “are simply not credible,” Pls.’ Opp’n, ECF

No. 29 at 23; because OMB has explained that here, “the facts

themselves reflect the Agency’s deliberative process.” Def.’s

Reply, ECF No. 30 at 6. For these reasons, OMB has demonstrated

that disclosure of the factual information would inevitably

reveal the government’s deliberations. See Pub. Citizen, 598

F.3d at 876 (agencies “must disclose those portions of

predecisional and deliberative documents that contain factual

information that do[] not inevitably reveal the government’s

deliberations”) (citations and internal quotation marks

omitted).

V. Conclusion

For the foregoing reasons, the Court GRANTS OMB’s Motion

for Summary Judgment, see ECF No. 26.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
May 12, 2023

35