Case 1:20-cv-00997-BAH Document 23 Filed 04/20/21 Page 1 of 41
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`CAUSE OF ACTION INSTITUTE,
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`Plaintiff,
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`v.
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`U.S. DEPARTMENT OF VETERANS
`AFFAIRS,
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`Defendant.
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`Civil Action No. 20-997 (BAH)
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`Chief Judge Beryl A. Howell
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`MEMORANDUM OPINION
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`Plaintiff Cause of Action Institute (“COA”), a “non-profit strategic oversight group
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`advocating for economic freedom and individual opportunity advanced by honest, accountable,
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`and limited government,” Compl. ¶ 6, ECF No. 1, challenges the response of defendant, the U.S.
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`Department of Veterans Affairs (“VA”), to a request submitted pursuant to the Freedom of
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`Information Act (“FOIA”), 5 U.S.C. § 552, for records related to pilot market assessments
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`created by a VA contractor in preparation for VA’s implementation of the congressionally
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`mandated Market Area Health System Optimization (“MAHSO”) analysis, part of a broader
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`national plan to improve the delivery of health care to veterans, see Compl., Ex. 1, Letter from
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`John E. McGlothlin, Counsel, COA, to VA FOIA Service (Jan. 16, 2019) (“FOIA Request”),
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`ECF No. 1-1. Specifically, plaintiff alleges in a single claim that VA unlawfully withheld
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`records responsive to plaintiff’s FOIA Request. Compl. ¶¶ 24–30; see also Pl.’s Mem. P. & A.
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`Opp’n Def.’s Mot. Summ. J. & Supp. Pl.’s Cross-Mot. Summ. J. (“Pl.’s Opp’n”) at 1, ECF No.
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`17-1.
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`Pending before the Court are the parties’ cross-motions for summary judgment. Def.’s
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`Mot. Summ. J. (“Def.’s Mot.”), ECF No. 16; Pl.’s Opp’n Def.’s Mot. Summ. J. & Cross-Mot.
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`1
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`Case 1:20-cv-00997-BAH Document 23 Filed 04/20/21 Page 2 of 41
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`Summ. J. (“Pl.’s Mot.”), ECF No. 17. For the reasons set forth below, VA’s Motion for
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`Summary Judgment is granted and plaintiff’s Cross-Motion for Summary Judgment is denied.
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`I.
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`BACKGROUND
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`Pertinent background underlying plaintiff’s FOIA Request is briefly described, followed
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`by review of the FOIA Request and VA’s responses thereto, both before and after initiation of
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`this lawsuit.
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`A.
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`Pertinent Background
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`“VA maintains a complex of medical facilities dedicated to Veteran health care that is
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`managed by the Veterans Health Administration (VHA),” including “approximately 140 [VA]
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`Medical Centers and nearly 1700 outpatient centers,” as well as Residential Treatment Facilities
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`and Community Living Centers. Def.’s Mot., Ex. 2, Decl. of Christine M. Stuppy, MBA
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`(“Stuppy Decl.”) ¶ 4, ECF No. 16-3. VA’s facilities are organized into eighteen geographic
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`regions, “known as Veterans Integrated Services Networks (VISNs),” that together “serve 96
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`geographic markets.” Id. In December 2014, Congress directed that the Secretary of VA
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`develop and deliver to Congress “a report including . . . a national realignment strategy that
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`includes a detailed description of realignment plans within each [VISN], including an updated
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`Long Range Capital Plan to implement realignment requirements” (the “National Realignment
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`Strategy”). Consolidated and Further Continuing Appropriations Act, 2015 (“2015 Act”), Pub.
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`L. No. 113-235, § 235, 128 Stat. 2130, 2566 (2014); see also Stuppy Decl. ¶ 5. The report was
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`also required to provide “an explanation of the process by which” VA developed its National
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`Realignment Strategy and “a cost vs. benefit analysis of each planned realignment.” 2015 Act
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`§ 235.
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`The VA MISSION Act of 2018 (“MISSION Act”), Pub. L. No. 115-182, 132 Stat. 1393
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`(2018), imposed additional procedural requirements on VA’s development of its realignment
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`2
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`Case 1:20-cv-00997-BAH Document 23 Filed 04/20/21 Page 3 of 41
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`strategy, see id. tit. II, subtit. A, § 203, 132 Stat. at 1446. This statute obligates the VA Secretary
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`to “publish in the Federal Register and transmit to the Committees on Veterans’ Affairs of the
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`Senate and the House of Representatives” the proposed and final criteria “to be used by [VA] in
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`assessing and making recommendations regarding the modernization or realignment of [VHA]
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`facilities.” Id. § 203(a)(1); see also id. § 203(a)(3). The deadline for publication of the final
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`criteria is May 31, 2021. Id. § 203(a)(3). By January 31, 2022, the Secretary must “publish in
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`the Federal Register and transmit,” id. § 203(b)(1), to Congress and the Asset and Infrastructure
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`Review Commission (“AIR Commission”) created by the MISSION Act, see id. § 202, “a report
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`detailing the recommendations regarding the modernization or realignment of facilities of the
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`[VHA] on the basis of the final criteria” previously submitted by the agency, id. § 203(b)(1).
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`The MISSION Act sets out a list of “factors” that the Secretary must consider in making
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`recommendations, id. § 203(b)(2), and requires the agency to “assess the capacity of each
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`[VISN] and medical facility . . . to furnish hospital care or medical services,” including through
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`“a commercial health care market assessment of designated catchment areas . . . conducted by a
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`non-governmental entity” and “consult[ation] with veterans service organizations and veterans,”
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`id. § 203(b)(3), which assessments must be submitted with the agency’s recommendations, id.
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`§ 203(c), but does not otherwise limit VA’s discretion to develop its recommendations.
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`Upon submission, the agency’s recommendations will be subject to review by the AIR
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`Commission, see id., which may only change the recommendations if, among other mandatory
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`findings, it “determines that the Secretary deviated substantially from the final criteria”
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`published by VA, id. § 203(c)(2)(B)(i). By the end of January 2023, the AIR Commission will
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`“transmit to the President a report containing [its] findings and conclusions based on a review
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`and analysis of the recommendations made by the Secretary, together with the Commission’s
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`3
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`Case 1:20-cv-00997-BAH Document 23 Filed 04/20/21 Page 4 of 41
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`recommendations.” Id. § 203(c)(2)(A). Within two weeks of receiving the report, by February
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`15, 2023, the President must “transmit to the Commission and to the Congress a report
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`containing the President’s approval or disapproval of the Commission’s recommendations,” id.
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`§ 203(d)(1), and VA then “shall begin to implement” the approved recommendations, id.
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`§ 204(a).
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`VA determined that, to formulate its National Realignment Strategy, a study was
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`necessary of all ninety-six VISN markets, known as the MAHSO analysis. Stuppy Decl. ¶ 5.
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`The agency entered a contract with PricewaterhouseCoopers (“PWC”), an outside consulting
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`firm, “to develop a uniform methodology to perform market assessments . . . on healthcare
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`markets within the VISNs,” with the goal of generating “a consistent method of conducting
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`market assessments across all 96 [VISN] markets” (the “market assessment methodology”). Id.
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`¶ 6. This contract (the “Pilot Study Contract”) was assigned VA Contract No. VA101F-17-C-
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`2843. See id.; Def.’s Mot., Ex. 1, Decl. of Barbara Swailes (“Swailes Decl.”) ¶ 15, ECF No. 16-
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`2. As part of the contract, PWC was to test the market assessment methodology “in three diverse
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`markets by conducting pilot market assessments.” Stuppy Decl. ¶ 6. PWC completed the three
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`pilot market assessments, which utilized an “eight-step draft methodology,” id. ¶ 8, in Spring
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`2017 and provided to VA “deliverables that memorialized the work,” consisting of the three pilot
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`market assessments and a briefing document on each assessment, id. ¶ 7; see also Swailes Decl.
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`¶¶ 13, 15.
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`B.
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`The FOIA Request
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`On January 16, 2019, plaintiff submitted the FOIA Request at issue to VA. FOIA
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`Request at 1; Def.’s Statement of Material Facts Not in Genuine Dispute (“Def.’s SMF”) ¶ 1,
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`ECF No. 16-4; Pl.’s Statement of Undisputed Material Facts (“Pl.’s SMF”) ¶ 1, ECF No. 17-2.
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`The Request sought “[a]ll records, including but not limited to email communications and
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`4
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`reports, relating to the results of The Pilot Study Contract (VA Contract No. VA101F-17-C-
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`2843).” FOIA Request at 1. The Request included in its scope “any information produced by
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`the Department of Veterans Affairs or provided by the contractor conducting the pilot studies,
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`which were designed to define processes and outputs for an ‘ideal healthcare delivery system,’”
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`from “December 6, 2016 to the present.” Id. VA received the FOIA Request that same day and
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`assigned it a tracking number. Swailes Decl. ¶ 5; Def.’s SMF ¶ 1.
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`C.
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`Processing of the Request and Procedural History
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`The FOIA Request was initially referred to the VA Office of Procurement Policy
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`Services’ FOIA Office for processing, Swailes Decl. ¶ 5, and in February 2019, that office
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`informed plaintiff that it had forwarded the FOIA Request to the VA Construction Facility and
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`Management (“CFM”) FOIA Office “for file search and direct response” to plaintiff,” id. ¶ 6; see
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`also id., Ex. B, Email from Patricia Litewski, FOIA Officer, Procurement Policy Services, VA,
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`to John McGlothlin, Counsel, COA (Feb. 15, 2019, 9:54 AM), ECF No. 16-2; Pl.’s SMF ¶ 6;
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`Def.’s Resp. Pl.’s Statement of Undisputed Material Facts (“Def.’s Resp. SMF”) ¶ 6, ECF No.
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`19-1. The CFM FOIA Office soon determined that the Pilot Study Contract had been handled by
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`VHA rather than CFM, and thus transferred the FOIA Request to the VHA Central Office FOIA
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`Office (“VHA FOIA Office”) for further processing. Swailes Decl. ¶ 7. Plaintiff was informed
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`of the transfer in March 2019. Id. ¶¶ 8, 9; see also id., Ex. C, Letter from Michael B. Sarich,
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`Director, VHA FOIA Off., to John McGlothlin, Counsel, COA (Mar. 8, 2019), ECF No. 16-2;
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`id., Ex. D, Letter from Michael B. Sarich, Director, VHA FOIA Off., to John McGlothlin,
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`Counsel, COA (Mar. 15, 2019), ECF No. 16-2.
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`At the time of the transfer, the VHA FOIA Officer sent record search inquiries to VHA’s
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`Office of Policy and Planning (“OPP”), Office of Healthcare Transformation (“OHT”), and
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`Office of Capital Asset Management, Engineering, and Support (“OCAMES”). Swailes Decl.
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`5
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`¶ 10. OHT “responded by indicating that” the Pilot Study Contract “was not an OHT contract,”
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`and OCAMES “request[ed] that the record search be directed to OPP due to OPP’s involvement
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`with the market assessment project.” Id. As of June 2019, the FOIA Officer had not received
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`any response from OPP. Id. Nearly a year later, on April 14, 2020, having received no
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`communications from VA since March 2019, plaintiff requested a status update on the
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`processing of the FOIA Request. Id. ¶ 11. The VHA FOIA Officer responded to plaintiff on the
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`same day and “provided the end of the calendar year 2020 as an estimated date of completion.”
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`Id. Two days later, on April 16, 2020, plaintiff initiated this litigation. See Compl.; Pl.’s SMF
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`¶ 8; Def.’s Resp. SMF ¶ 8.
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`Two weeks after the filing of the instant Complaint, OPP informed the FOIA Officer that
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`it had produced some potentially responsive documents in response to a previous FOIA request
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`for the pilot market assessments. Swailes Decl. ¶ 10. The FOIA Officer tracked down “the
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`responsive documents” identified pursuant to that request, consisting of “seven documents,
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`totaling four hundred and eighty-nine . . . pages, [B]ates numbered 1-489.” Id. The seven
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`documents included the three pilot market assessments, with one of the three studies split into
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`two files, and three related briefing documents, all prepared by PWC in consultation with VA
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`employees pursuant to the Pilot Study Contract. See id.; id., Ex. F, Vaughn Index FOIA Request
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`19-05023-F (“Vaughn Index”) at 1–24, ECF No. 16-2.
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`On May 11, 2020, the VHA FOIA Officer issued VA’s first Initial Agency Decision (the
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`“First IAD”), addressing these seven documents, to plaintiff. Id. ¶ 13; id., Ex. E, Letter from
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`Barbara Swailes, VHA FOIA Officer, VHA FOIA Off., to John E. McGlothlin, Counsel, COA
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`(May 11, 2020) (“First IAD”) at 2, ECF No. 16-2; Def.’s SMF ¶ 3(a); Pl.’s Resp. SMF ¶ 3; Pl.’s
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`SMF ¶¶ 10–11; Def.’s Resp. SMF ¶¶ 10–11. All 489 pages were withheld in full pursuant to the
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`6
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`deliberative process privilege of FOIA Exemption 5, with certain overlapping withholdings
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`under FOIA Exemption 6. First IAD at 2–7; see also Swailes Decl. ¶ 13; Def.’s SMF ¶ 3(a);
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`Pl.’s Resp. SMF ¶ 3; Pl.’s SMF ¶¶ 11–12; Def.’s Resp. SMF ¶¶ 11–12. As reflected in the
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`parties’ first Joint Status Report to the Court, VA agreed to produce a Vaughn Index
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`corresponding to the First IAD to plaintiff, see Joint Status Report (June 3, 2020) at 1, ECF No.
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`10, and did so in June 2020, Swailes Decl. ¶ 24.1
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`Between June 2020 and September 2020, the VHA FOIA Officer searched for additional
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`materials responsive to the FOIA Request. Swailes Decl. ¶ 25; see also Joint Status Report
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`(Aug. 3, 2020) at 1–2, ECF No. 11. The FOIA Officer issued two further IADs during this
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`period, in August and September. Swailes Decl. ¶ 25; Pl.’s SMF ¶¶ 15–16; Def.’s Resp. SMF
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`¶¶ 15–16; Joint Status Report (Sept. 4, 2020) (“Sept. 4 JSR”) at 1, ECF No. 12. After realizing
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`that these two IADs addressed duplicate documents, Swailes Decl. ¶ 25, the parties “agreed to
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`narrow the scope of summary judgment to those responsive records identified in” the First IAD,
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`Pl.’s SMF ¶ 17; see also Def.’s Resp. SMF ¶ 17. Their next status report advised the Court that
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`“[p]laintiff d[id] not contest the adequacy of the search but intend[ed] to challenge [VA]’s
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`withholding of certain pilot studies and related records under Exemptions 5 and 6,” and that the
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`parties therefore “believe[d] that briefing on summary judgment [was] necessary.” Joint Status
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`Report (Sept. 25, 2020) (“Sept. 25 JSR”) at 1, ECF No. 13. A schedule for dispositive motions
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`was accordingly set. See Min. Order (Sept. 28, 2020); Min. Order (Dec. 8, 2020).
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`On December 14, 2020, less than a month before its Motion for Summary Judgment was
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`due, see Min. Order (Dec. 8, 2020), VA “issued a notification letter” to plaintiff “as a follow-up”
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`to the First IAD. Swailes Decl. ¶ 26; see also Pl.’s SMF ¶ 18; Def.’s SMF ¶ 18. This letter
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`1
`“A Vaughn index describes the documents withheld or redacted [by the agency] and the FOIA exemptions
`invoked, and explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C.
`Cir. 2015).
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`advised that the agency “had determined that the eight-step methodology” used in the three pilot
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`market assessments “could be released.” Swailes Decl. ¶ 26. The VHA FOIA Officer
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`accordingly “re-reviewed” the 489 pages that had been withheld in the First IAD “and released
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`the five pages containing the methodology in full,” as well as “additional pages that repeated
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`methodology information.” Id. She further “determined that [the agency] could release several
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`pages that had essentially no substantive content and release of which would not harm the
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`agency.” Id. As a result of this second review of the First IAD, “[a] total of thirty-eight . . .
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`pages” previously withheld “were released in full or in part,” id., but VA continued to withhold
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`in full the remaining 451 pages. The agency also produced to plaintiff a revised Vaughn Index.
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`Id.; see also Vaughn Index. The parties’ briefing continued on the basis of the revised First IAD,
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`and the pending cross-motions for summary judgment became ripe for resolution on March 26,
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`2021. See Pl.’s Reply Br. Supp. Pl.’s Cross-Mot. Summ. J. (“Pl.’s Reply”), ECF No. 21.
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`II.
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`LEGAL STANDARD
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`Under Federal Rule of Civil Procedure 56, “‘[a] party is entitled to summary judgment
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`only if there is no genuine issue of material fact and judgment in the movant’s favor is proper as
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`a matter of law.’” Soundboard Ass’n v. FTC, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (quoting
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`Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006));
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`see also Fed. R. Civ. P. 56(a). “‘In FOIA cases, summary judgment may be granted on the basis
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`of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory
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`statements, and if they are not called into question by contradictory evidence in the record or by
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`evidence of agency bad faith.’” Aguiar v. DEA, 865 F.3d 730, 734–35 (D.C. Cir. 2017) (quoting
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`Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013)); see also Students
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`Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (“[A]n agency is entitled
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`to summary judgment if no material facts are in dispute and if it demonstrates ‘that each
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`document that falls within the class requested either has been produced . . . or is wholly exempt
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`from the Act’s inspection requirements.’” (omission in original) (quoting Goland v. CIA, 607
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`F.2d 339, 352 (D.C. Cir. 1978))). Most FOIA cases “can be resolved on summary judgment.”
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`Brayton v. Off. of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
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`FOIA was enacted “to promote the ‘broad disclosure of Government records’ by
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`generally requiring federal agencies to make their records available to the public on request.”
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`DiBacco v. U.S. Army (“DiBacco I”), 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting Dep’t of
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`Justice v. Julian, 486 U.S. 1, 8 (1988)). Agencies are therefore statutorily mandated to
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`“make . . records promptly available to any person” who submits a request that “reasonably
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`describe such records” and “is made in accordance with [the agency’s] published rules.” 5
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`U.S.C. § 552(a)(3)(A). To balance the public’s interest in governmental transparency and
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`“‘legitimate governmental and private interests [that] could be harmed by release of certain types
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`of information,’” Judicial Watch, Inc. v. U.S. Dep’t of Def., 913 F.3d 1106, 1108 (D.C. Cir.
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`2019) (quoting FBI v. Abramson, 456 U.S. 615, 621 (1982)), FOIA contains nine exemptions, set
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`forth in 5 U.S.C. § 552(b), which “are ‘explicitly made exclusive’ and must be ‘narrowly
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`construed,’” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (first quoting EPA v. Mink, 410
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`U.S. 73, 79 (1979); and then quoting Abramson, 456 U.S. at 630); see also Murphy v. Exec. Off.
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`for U.S. Att’ys, 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Resp. & Ethics in Wash. v. U.S.
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`Dep’t of Justice (“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014). “[T]hese limited exemptions
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`do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the
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`Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).
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`Case 1:20-cv-00997-BAH Document 23 Filed 04/20/21 Page 10 of 41
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`FOIA authorizes federal courts “to enjoin the agency from withholding agency records
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`and to order the production of any agency records improperly withheld from the complainant.” 5
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`U.S.C. § 552(a)(4)(B). When an agency invokes an exemption to disclosure, district courts must
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`“determine de novo whether non-disclosure was permissible.” Elec. Priv. Info. Ctr. v. U.S. Dep’t
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`of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015). The statute “places the burden ‘on the
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`agency to sustain its action,’ and the agency therefore bears the burden of proving that it has not
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`‘improperly’ withheld the requested records.” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t
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`of Justice, 922 F.3d 480, 487 (D.C. Cir. 2019) (first quoting 5 U.S.C. § 552(a)(4)(B); and then
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`quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)); see also U.S. Dep’t
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`of Justice v. Landano, 508 U.S. 165, 171 (1993) (“The Government bears the burden of
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`establishing that the exemption applies.”); DiBacco v. U.S. Dep’t of Army (“DiBacco II”), 926
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`F.3d 827, 834 (D.C. Cir. 2019) (“‘An agency withholding responsive documents from a FOIA
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`release bears the burden of proving the applicability of clamed exemptions,’ typically through
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`affidavit or declaration.” (quoting DiBacco I, 795 F.3d at 195)). This burden does not shift even
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`when the requester files a cross-motion for summary judgment because the agency ultimately
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`“bears the burden to establish the applicability of a claimed exemption to any records or portions
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`of records it seeks to withhold,” Am. Immigr. Laws. Ass’n v. Exec. Off. for Immigr. Rev., 830
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`F.3d 667, 673 (D.C. Cir. 2016), while “[t]he burden upon the requester is merely ‘to establish the
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`absence of material factual issues before a summary disposition of the case could permissibly
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`occur,’” Pub. Citizen Health Rsch. Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999) (quoting
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`Nat’l Ass’n of Gov’t Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).
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`III. DISCUSSION
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`Plaintiff contests VA’s invocation of Exemptions 5 and 6 to justify withholding of all but
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`thirty-eight pages of the seven documents identified in the First IAD and its redactions from
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`twenty-two of the thirty-eight produced pages. See Pl.’s Opp’n at 6–18; Pl.’s Reply at 5–13.
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`Additionally, plaintiff disputes VA’s foreseeable harm and segregability analyses with respect to
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`its withholdings. See Pl.’s Opp’n at 18–23; Pl.’s Reply at 13–17.2 These topics are addressed
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`seriatim.3
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`A.
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`Application of FOIA Exemptions
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`FOIA “requires government agencies to make information available upon request, unless
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`the information is protected by one of” FOIA’s nine exemptions. Judicial Watch, Inc. v. U.S.
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`Dep’t of Def., 847 F.3d 735, 738 (D.C. Cir. 2017). An agency must prove the applicability of
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`claimed exceptions, and can do so through a Vaughn index, and supporting affidavits or
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`declarations, that “describe[] the justifications for withholding the information with specific
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`2
`VA discusses at length the adequacy of its search for records responsive to the FOIA Request, see Def.’s
`Mem. P. & A. Supp. Def.’s Mot. Summ. J. (“Def.’s Mem.”) at 5–8, ECF No. 16-1; Def.’s Reply Mem. Supp. Def.’s
`Mot. Summ. J. & Resp. Opp’n Pl.’s Mot. Summ. J. (“Def.’s Reply”) at 1–2, ECF No. 19, even though, as explained
`supra Part I.C, the parties agreed to restrict the scope of summary judgment to the propriety of VA’s withholdings
`under Exemptions 5 and 6, see Sept. 25 JSR at 1, and plaintiff maintains, consistent with the parties’ previous
`representation to the Court, that “the sufficiency of [VA]’s search” for responsive records “is not in dispute,” Pl.’s
`Opp’n at 7 n.3; see also Pl.’s Reply at 1–2. Indeed, plaintiff’s Complaint nowhere alleges that VA’s search was
`inadequate. See Compl. Accordingly, the adequacy of VA’s search is not contested and will not be addressed any
`further. See, e.g., Niskanen Ctr. v. FERC, 436 F. Supp. 3d 206, 212–13 (D.D.C. 2020); Tipograph v. Dep’t of
`Justice, 83 F. Supp. 3d 234, 238 (D.D.C. 2015); Showing Animals Respect & Kindness v. U.S. Dep’t of Interior, 730
`F. Supp. 2d 180, 190 (D.D.C. 2010).
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`Plaintiff requests that the Court “order [VA] to submit unredacted versions of the records at issue” for in
`camera review, Pl.’s Opp’n at 25, arguing that such review is warranted “[b]ased on . . . [VA’s] improper use of
`Exemptions 5 and 6, as well as [the agency’s] questionable efforts to segregate non-exempt portions of records for
`release,” id. at 24; see also id. at 23–25; Pl.’s Reply at 17. FOIA provides that a district court “may examine the
`contents of . . . agency records in camera” at its discretion, 5 U.S.C. § 552(a)(4)(B), “but ‘it by no means compels
`the exercise of that option,’” Larson v. Dep’t of State, 565 F.3d 857, 869 (D.C. Cir. 2009) (quoting Juarez v. Dep’t
`of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008)). “‘If the agency's affidavits provide specific information sufficient to
`place the documents within the exemption category, if this information is not contradicted in the record, and if there
`is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of
`the documents.’” Mobley v. CIA, 806 F.3d 568, 588 (D.C. Cir. 2015) (quoting ACLU v. U.S. Dep’t of Def., 628 F.3d
`612, 626 (D.C. Cir. 2011)). As explained below, the first two of these requirements are satisfied in the instant case,
`and plaintiff raises no allegations of agency bad faith. In camera review therefore will not be ordered.
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`Case 1:20-cv-00997-BAH Document 23 Filed 04/20/21 Page 12 of 41
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`detail, demonstrate[] that the information withheld logically falls within the claimed exemption,
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`and [are] not contradicted by contrary evidence in the record or by evidence of the agency’s bad
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`faith.” DiBacco II, 926 F.3d at 834 (internal quotation marks and citation omitted); see also,
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`e.g., CREW, 746 F.3d at 1088; Poitras v. Dep’t of Homeland Sec., 303 F. Supp. 3d 136, 150
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`(D.D.C. 2018) (“An agency may carry its burden of showing an exemption was properly invoked
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`by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld
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`documents, or both, to demonstrate that the government has analyzed carefully any material
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`withheld and provided sufficient information as to the applicability of an exemption to enable the
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`adversary system to operate.”). “‘Ultimately, an agency’s justification for invoking a FOIA
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`exemption is sufficient if it appears logical or plausible.’” Judicial Watch, Inc. v. U.S. Dep’t of
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`Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (per curiam) (quoting ACLU, 628 F.3d at 619).
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`Plaintiff disputes VA’s assertion of Exemption 5’s deliberative process privilege as to the
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`agency’s withholding of 451 full pages of the pilot market assessments and related briefing
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`documents discussed in the First IAD and redactions from an additional twenty-two pages of
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`these seven documents. See Vaughn Index at 1–24; Pl.’s Opp’n at 8–11; Pl.’s Reply at 5–8. It
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`further contests VA’s overlapping claim that Exemption 6 shields from disclosure thirty-five
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`pieces of potentially personally identifying information, for which the agency also cites
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`Exemption 5. See Vaughn Index at 1, 4–5, 7–9, 11–13, 14–16, 17–18, 21–23; Pl.’s Opp’n at 11–
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`18; Pl.’s Reply at 8–13. To justify its withholdings from the seven documents, VA need only
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`show that one exemption applies to each withholding. See Judicial Watch, Inc., 715 F.3d at 940;
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`Ctr. for Nat’l Sec. Stud. v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (noting that
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`a court “need not address [any] other exemptions invoked” for a withholding justified by one
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`exemption); Cause of Action Inst. v. Exp.-Imp. Bank of U.S., Civ. A. No. 19-1915 (JEB), 2021
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`Case 1:20-cv-00997-BAH Document 23 Filed 04/20/21 Page 13 of 41
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`WL 706612, at *3 (D.D.C. Feb. 23, 2021). As explained below, VA has properly relied on
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`Exemption 5 to withhold or redact information from the three pilot market assessments and the
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`three related briefing documents, and the applicability of Exemption 6 therefore need not be
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`considered.
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`1.
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`Legal Standards Governing Application of Exemption 5
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`Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or
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`letters that would not be available by law to a party other than an agency in litigation with the
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`agency.” 5 U.S.C. § 552(b)(5). “‘Among th[e] privileges protected by Exemption 5 is the . . .
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`deliberative process privilege.’” Judicial Watch, Inc., 847 F.3d at 739 (alteration and omission
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`in original) (quoting Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257 (D.C. Cir. 1982)); see
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`also Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015). “To protect
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`agencies from being ‘forced to operate in a fishbowl,’ the deliberative process privilege shields
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`from disclosure ‘documents reflecting advisory opinions, recommendations and deliberations
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`comprising part of a process by which governmental decisions and policies are formulated.’”
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`U.S. Fish & Wildlife Serv. v. Sierra Club, Inc. (“Sierra Club”), 141 S. Ct. 777, 785 (2021) (first
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`quoting Mink, 410 U.S. at 87; and then quoting NLRB v. Sears, Roebuck & Co. (“Sears”), 421
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`U.S. 132, 150 (1975)). It “is rooted in ‘the obvious realization that officials will not
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`communicate candidly among themselves if each remark is a potential item of discovery and
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`front page news.’” Id. (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532
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`U.S. 1, 8–9 (2001)); see also Judicial Watch, Inc., 847 F.3d at 739 (noting that the deliberative
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`process privilege is predicated on the theory that “agencies craft better rules when their
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`employees can spell out in writing the pitfalls as well as the strengths of policy options, coupled
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`with the understanding that employees would be chilled from such rigorous deliberation if they
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`feared it might become public”). The privilege is intended “[t]o encourage candor, which
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`Case 1:20-cv-00997-BAH Document 23 Filed 04/20/21 Page 14 of 41
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`improves agency decisionmaking,” by “blunt[ing] the chilling effect that accompanies the
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`prospect of disclosure.” Sierra Club, 141 S. Ct. at 785; see also Machado Amadis v. U.S. Dep’t
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`of State, 971 F.3d 364, 371 (D.C. Cir. 2020) (finding the deliberative process privilege intended
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`to “protect[] ‘debate and candid consideration of alternatives within an agency,’ thus improving
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`agency decisionmaking”) (quoting Jordan v. Dep’t of Justice, 591 F.2d 753, 772 (D.C. Cir.
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`1978) (en banc))).
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`“To qualify for the deliberative process privilege, an intra-agency memorandum must be
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`both pre-decisional and deliberative.” Abtew, 808 F.3d at 898 (citing Coastal States Gas Corp.
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`v. Dep’t of Energy (“Coastal States”), 617 F.2d 854, 866 (D.C. Cir. 1980)); see also Hall &
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`Assocs. v. EPA, 956 F.3d 621, 624 (D.C. Cir. 2020).4 The Supreme Court recently clarified the
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`contours of these requirements in U.S. Fish and Wildlife Service v. Sierra Club, Inc. (“Sierra
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`Club”), 141 S. Ct. 777 (2021), finding that “[t]he privilege . . . distinguishes between
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`predecisional, deliberative documents, which are exempt from disclosure, and documents
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`reflecting a final agency decision and the reasons supporting it, which are not,” id. at 785–86.
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`“Documents are ‘predecisional’ if they were generated before the agency’s final decision on the
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`
`4
`At the outset, an agency can claim the deliberative process privilege only with respect to “inter-agency or
`intra-agency memorandums or letters.” 5 U.S.C. § 552(b)(5). The D.C. Circuit “has . . . interpreted the phrase
`‘intra-agency’ in Exemption 5 to go beyond the text and include U.S. agency records authored by non-agency
`entities if those records were solicited by a U.S. agency in the course of its deliberative process” and were created by
`“an outside consultant” who “did not have its own interests in mind.” Pub. Emps. for Env’tl Resp. v. U.S. Section,
`Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 201–02 (D.C. Cir. 2014) (citing McKinley v. Bd. of
`Governors of the Fed. Reserve Sys., 647 F.3d 331, 336–37 (D.C. Cir. 2011)); see also Nat’l Inst. of Mil. Justice v.
`U.S. Dep’t of Def., 512 F.3d 677, 679–80 (D.C. Cir. 2008); Buzzfeed, Inc. v. FBI, Civ. A. No. 18-cv-2567 (BAH),
`2020 WL 2219246, at *6 (D.D.C. May 7, 2020). This interpretation, known as the “consultant corollary” to
`Exemption 5, brings agency “communications to or from non-governmental parties, including contractors,” within
`the scope of the exemption as intra-agency documents, so long as “‘the consultant does not represent an interest of
`its own, or the interest of any other client, when it advises the agency that hires it.’” Competitive Enter. Inst. v. EPA,
`232 F. Supp. 3d 172, 185 (D.D.C. 2017) (quoting Elec. Priv. Info. Ctr. v. Dep’t of Homeland Sec., 892 F. Supp. 2d
`28, 45 (D.D.C. 2012)). Though plaintiff “objects to the foundational confusion and lack of textual support
`undergirding the D.C. Circuit’s prevailing precedent, and the obvious inconsistency of the consultant corollary with
`the plain meaning of Exemption 5’s unambiguous language,” it does not contest that, under this Circuit’s binding
`precedent upholding and applying the consultant corollary, VA “has technically satisfied Exemption 5