LatinoJustice PRLDEF v. Dep’t of the Treasury, No. 19-4417, 2024 WL 965653 (S.D.N.Y. Mar. 5, 2024) (Oetken, J.)

LatinoJustice PRLDEF v. Dep’t of the Treasury, No. 19-4417, 2024 WL 965653 (S.D.N.Y. Mar. 5, 2024) (Oetken, J.)

Re:  Request for records concerning candidates who were considered for appointment to Financial Oversight and Management Board for Puerto Rico

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiffs’ motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  “[T]he Court concludes that Treasury’s first . . . Declaration provides reasonably detailed explanations why any withheld material falls within an exemption.”  “It is thus sufficient to sustain the agency’s burden.”  “The First . . . Declaration describes each individual challenged record, identified according to Bates number, and includes information about the nature of the record (e.g., email, chart, attachment, etc.), the date or date range of the record (if any), the senders and recipients of the record, and the content of the exempted and non-exempted material.”  “The . . . Declaration also appends the challenged records themselves.”  “The non-exempt material in the records provides ample context to understand the nature of the content of the exempted material.”  “In each record, Treasury clearly marks the exempted material, and clearly identifies the relevant exemption or exemptions.”  “The . . . Declaration also discusses in detail the legal basis for exempting such material under the relevant exemption or exemptions.”  “Finally, that Treasury submitted an affidavit in lieu of a Vaughn index is a nonissue.”  “‘The materials provided by the agency may take any form so long as they give the reviewing court a reasonable basis to evaluate the claim of privilege.’”

• Exemption 5, Deliberative Process Privilege:  “The Court concludes that Treasury’s withholdings under the deliberative process privilege pursuant to FOIA Exemption 5 were proper.”  The court relates that “Plaintiffs contend that the lists of names of unselected candidates are ‘purely factual and do not reflect the give and take of the consultative process that Exemption 5 protects.’”  “Plaintiffs further contend that the summaries of unselected candidates’ biographical information are also purely factual and are nothing more than a reorganization and a repackaging of ‘a mass of dispersed public information.’”  The court finds that “[t]he materials containing the candidates’ names and Treasury personnel’s communications debating the relative merits of the candidates, ranking candidates by order of preference, and discussing which candidates would potentially work well together, are clearly deliberative.”  “Treasury was tasked with identifying and evaluating potential candidates and advising the President in appointing members to the Board.”  “The records contain the subjective views of individual Treasury employees about the potential candidates, which formed part of a consultative process by which subordinates formulated recommendations for the President.”  “The records do not reflect the final view of the President, who was tasked with rendering the final decision.”  “The candidates’ names and Treasury personnel’s subjective views on the candidates are thus at the heart of Treasury’s deliberative process and are properly withheld under Exemption 5.”  “The candidates’ biographical information is also properly withheld under Exemption 5.”  “As a threshold matter, Plaintiffs’ contention that these summaries ‘simply reorganize[d] and repackage[d] a mass of dispersed public information,’ is inaccurate.”  “Treasury proffers that the challenged records ‘distilled both pertinent publicly available information about the candidates and information obtained from the candidates themselves,’ and Treasury personnel who created these records ‘assessed the available information compiled about each candidate and selected the most important information for inclusion in their assessments and rankings.’”  “This biographical information is also at the heart of Treasury’s deliberations, as it goes to the relative merits and qualifications of the candidates.”  “The biographical information that Treasury personnel chose to include reveals what those personnel considered to be relevant to candidates’ effectiveness on the Board.”  “It is thus clear that the ‘selection [and] organization of facts [was] part of an agency’s deliberative process.’”  “Moreover, the candidates’ biographical information is ‘inextricably intertwined with policy making recommendations so that [its] disclosure would compromise the confidentiality of deliberative information that is entitled to protection under Exemption 5.’”  “Here, where the biographical information is highly detailed, releasing that biographical information would be nearly equivalent to releasing the candidates’ names themselves, as it seems likely that one could deduce the candidates’ names based on their biographical information.”  “Treasury has also withheld materials in two records relating to the proposed process for selecting and appointing candidates.”  “While it is true that timelines mapping out the implementation or rollout of already finalized policies cannot be withheld under the deliberative process privilege, here, where the timelines are proposing steps for rendering a final agency action, the timelines may be withheld under the privilege.”

• Exemption 5, Foreseeable Harm and Other Considerations:  The court finds that “Treasury specifically focused on the information at issue, and it concluded that disclosure of that information would chill future internal discussions and interviews.”  “Treasury has met its burden of establishing foreseeable harms that would arise from disclosure of the material, as required under the FIA . . . .”  The court explains that “[c]andor in vetting interviews is of ‘critical importance,’ as the government employee asking the questions ‘is seeking to understand both nonpublic views held by the candidate as well as non-public information that could be embarrassing or harmful if it later became public.’”  “Candidates’ reluctance to speak candidly would ‘deprive Treasury of valuable information necessary to its deliberations,’ which ‘would adversely affect Treasury’s ability to assist decisionmakers in selecting and appointing individuals.’”