Protect the Public’s Trust v. DOE, No. 21-2486, 2024 WL 1344453 (D.D.C. Mar. 30, 2024) (Berman Jackson, J.)

Protect the Public’s Trust v. DOE, No. 21-2486, 2024 WL 1344453 (D.D.C. Mar. 30, 2024) (Berman Jackson, J.)

Re:  Request for records concerning specific DOE employee

Disposition:  Granting defendant’s motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that “Plaintiff has not raised any issues in its opposition with respect to the adequacy of the agency’s search, and defendant has satisfied its burden to come forward with evidence establishing that adequate searches were conducted by submitting the declaration of [its declarant].”  “[Defendant] sets forth facts sufficient to enable the Court to conclude that the agency made the necessary good faith effort, and that it was reasonable to expect that the methods utilized appropriately canvassed Department records for plaintiff’s requested information.”

• Exemption 5, Attorney Work-Product Privilege:  “[T]he Court finds the emails to be attorney work product and protected from disclosure under Exemption 5.”  “Defendant has invoked FOIA Exemption 5 and the attorney work product privilege with respect to six documents.”  “The withheld records are each described as a communication ‘among attorneys within the Office of the General Counsel [that] discusses litigation strategy as it relates to a matter currently being litigated[]’ . . . .”  “According to the Department’s declarant, these communications included ‘weekly updates on the status of matters in litigation and internal discussion related to the litigation,’ and they were ‘provided in order to aid the attorney[s] in responding to other matters that related to the subject of the litigation.’”  “And the documents included ‘attorneys’ legal strategies, reasoning and analysis related to the case and were intended to inform[] discussion of related matters.’”

• Exemption 5, Attorney-Client Privilege:  “The Court . . . finds that documents and communications between [the DOE employee] and agency attorneys during the conflicts screening process were appropriately withheld under FOIA Exemption 5.”  “These documents can be separated into roughly three categories:  ‘emails involv[ing] the communication of legal conclusions and recommendations to the client from the attorney related to a letter received from Protect the Public’s Trust’; emails containing ‘attorney advice on [ ] ethical question[s] raised’ regarding potential speaking engagements, meetings, events, and [the DOE employee’s] service as a reference for a former colleague; communications concerning ethics questions related to the financial contributions, conflicts of interest, and financial disclosures of [the DOE employee] and her spouse.”  “Another document contains ‘a question from a junior attorney to a senior attorney about how best to proceed’ in a matter involving [the DOE employee].”  “Plaintiff objects to the Department’s assertion of the attorney-client privilege insofar as ‘DOE cannot simultaneously claim that its in-house attorneys represent the DOE and represent employees of DOE against whom DOE must enforce ethical obligations and regulations.’”  “According to plaintiff, ‘[t]he client of DOE in-house attorneys is necessarily the Department itself; DOE represents its own employees only insofar as the employees are acting on behalf of the government.’”  “‘An employee acting under a conflict of interest is inherently not working on behalf of the government, and an employee seeking advice related to interests personal to the employee is not seeking advice on behalf of the Department.’”
  
  “Plaintiff’s argument appears to put the cart before the horse.”  “Plaintiff simply posits that [the DOE employee] is working under a conflict of interest and that, therefore, her interests cannot be aligned with the agency’s for purposes of the attorney-client privilege.”  “There is no evidence in the record that supports this assumption, and the Court cannot base its ruling on speculation.”  “Defendant’s supplemental Vaughn index and the sworn declaration from [the] DOE Deputy General Counsel . . . make clear that the requested documents detail communications related to Ethics in Government Act compliance, specifically legal advice from agency attorneys to [the DOE employee] regarding her completion of the Office of Government Ethics (‘OGE’) Form 278e Financial Disclosure Report.”  “As [ the declarant] attests, these communications are part of the process the agency has put in place to comply with the Ethics in Government Act, and it can include multiple rounds of interviews and frank personal discussions all designed to not just ‘identify’ but also ‘avoid potential conflicts of interest.’”  “While the communications undoubtedly involve personal information related to [the DOE employee] and her family, that does not mean that the attorneys’ work in advising her about her ethical obligations falls outside of the agency lawyers’ attorney-client privilege.”  “The agency official was not the client.”  “The lawyers were not retained by [the DOE employee], and she is not the one asserting the privilege.”  “The agency’s declaration explains how ensuring employees’ compliance with disclosure obligations enables agency lawyers to fulfill their duty to the agency to monitor and avoid potential conflicts of interest on the part of high-ranking officials.”  “The advice was rendered to [the DOE employee] in her official capacity as an agency official, and in that capacity, she was entitled to their full and frank advice, just as she would have been if they were providing advice about a program or initiative she was considering.”
   
• Exemption 5, Deliberative Process Privilege:  The court relates that “[i]n addition to those documents for which defendant has invoked Exemption 5 on other grounds, defendant invoked the deliberative process privilege with respect to 28 documents.”  “According to the agency, the records ‘are pre-decisional communications circulated during the back-and forth, internal analysis and recommendation process within the agency that assisted [the DOE employee] with filing her Financial Disclosure Report and responding to engagement requests from third parties, as well as assisted DOE in responding to letters from outside parties.’”  “Defendant has . . . supplemented its Vaugh[n] index to incorporate additional pieces of information that plaintiff faults the agency for not incorporating initially, and the Court is satisfied that the documents within each of the categories . . . were properly withheld or redacted pursuant to Exemption 5.”  “For each document, defendant identifies the relevant actors, the dates on which the documents were generated, and a final decision to which the documents relate, if any.”  “And these decisions are the type of agency judgments that the deliberative process privilege may protect:  how best to respond to inquiries from Congress, . . . decisions concerning where officials will speak and what they will say – with the agency’s imprimatur – to advance the agency’s goals, . . . and how to navigate ethics requirements while at the same time pursuing the agency’s programmatic interests.”  “Because permitting plaintiff to obtain this information would chill these activities in the future and cause foreseeable harm to the agency, the Court finds that documents and communications were appropriately withheld under FOIA Exemption 5.”
   
• Exemption 6:  The court relates that “Defendant invokes Exemption 6 alone with respect to seven documents.”  “According to the government’s supplemental Vaughn Index, the information contained in the requested documents includes:  ‘an employee’s time off schedule,’ . . . personal phone numbers and Venmo account information, . . . and two documents that each contain ‘a statement regarding a non-public conflict of interest clearance related to the appointment process.’”  “In its opposition, plaintiff does not appear to take issue with redactions related to employee schedules, phone numbers, or Venmo account information, but it questions the redaction of information related to conflicts of interest.”  “The Court has reviewed the materials in camera to assess the first question in the analysis:  whether the privacy interest involved in documents 000304 and 000306 is substantial or de minimis.”  “As described in the government’s Vaughn index, the information contained in the documents relates to the conflicts of interest clearance process for appointments.”  “Although an individual’s privacy interest in keeping the information contained in the emails away from the public eye is not necessarily substantial, neither is it de minimis, and it must be weighted against the public interest in disclosure, which in this circumstance, is minimal.”  “Although the government came into the possession of personal information about [the DOE employee] while she was fulfilling a governmental role, it cannot be said that the public has an interest in information unrelated to that role.”  “Because, after reviewing the materials in camera, the Court finds that the redacted personal information would do nothing to assist the public in assessing what the agency ‘was up to,’ or how the agency – or this official acting on its behalf – were carrying out their duties, redaction of the information was proper.”
   
• ​​​​​​​Litigation Considerations, “Reasonably Segregable” Requirements:  “The Court will . . . grant defendant’s motion for summary judgment on the issue of segregability.”  The court finds that “[t]he Department has provided a comprehensive, 45-page supplemental Vaughn index, which describes each document withheld and the exemption under which it was withheld.”  “In addition, the Department’s declarants aver that the agency ‘conducted a document-by-document and line-by-line review of each [responsive] document such that every effort was made to provide Plaintiff with all reasonably segregable, non-exempt records,’ and that ‘[n]o reasonably segregable, non-exempt portions of responsive records have been withheld.’”  “The Court [previously] called for the submission of these documents for in camera review given [a] dispute, and it has confirmed that the agency’s characterization [of that dispute regarding segregability is correct.”  “Considering all of the segregation determinations in combination with defendant’s declaration, the Court is satisfied that the agency has met its segregability requirement.”  “Further, the Court’s in camera review of the provided documents confirms this conclusion.”