By Rebecca Mayo, J.D.
A broad, conclusory statement that non-exempt information could not be segregated from a document and released was not enough to show the agency complied with its FOIA obligations.
Although a document may fall within an exemption to the Freedom of Information Act (FOIA) requirement that an agency turn over documents, the agency must still conduct a segregability analysis. According to a district court, wholly conclusory statements and conclusions that a document could not be segregated were not enough where it is the agency’s burden to show that it has complied with its FOIA obligations. The court ordered CMS to re-assess the documents it withheld in full and either disclose all reasonably segregable portions of non-exempt material or provide the court with more specific information justifying its withholding of the entire report (Democracy Forward Foundation v. CMS, November 27, 2019, Bates, J.).
FOIA request. Democracy Forward Foundation (DFF) submitted a FOIA request to CMS seeking records "concerning CMS’s decisionmaking as it relates to the agency’s Patient Protection and Affordable Care Act outreach efforts." DFF specifically requested correspondence and communications between certain senior CMS employees as well as between those CMS employees and persons employed by the consulting firms Weber Shandwick and Powell Tate. When CMS failed to respond, DFF filed a FOIA suit to enforce its request. Almost five months later, CMS released a tranche of documents and almost five months after that released another tranche of documents. DFF and CMS both cross-moved for summary judgment.
Exemption 5. FOIA Exemption 5 applies to "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." This exemption is generally understood to protect documents which would be protected in civil discovery such as materials protected by attorney-client privilege, attorney work-product privilege, or the executive deliberative process privilege. In the FOIA context, the deliberative process privilege applies to inter- or intra-agency documents that are predecisional and deliberative. This applies to documents prepared by outside consultants for the agency under the "consultant corollary." However, FOIA requires agencies to take reasonable steps necessary to segregate and release nonexempt information."
Final report. DFF challenged CMS’s withholding of a "Final Report" on the Healthcare.gov 2016-2017 Open Enrollment Campaign, prepared by Weber Shandwick. CMS asserted that the Final Report was withheld because it reflected "information developed by a consultant for the purposes of providing advise to assist CMS on media strategies regarding enrollment for the health insurance marketplace." The court found this document fell under the consultant corollary exemption because CMS has solicited advice from Weber Shandwick and the purpose of the final report was to provide advice on any future decisions on enrollment research, audience targets, and so forth. Therefore the Final Report was predecisional and deliberative. Although CMS did not identify a specific "decision" to which the Final Report contributed, the Final Report played an advisory role in the decisionmaking process related to media strategies regarding enrollment for the health insurance marketplace. The court found this to be sufficient.
However, the court ultimately determined that CMS failed to establish that it conducted an adequate segregability analysis. CMS provided declarations that stated that the reports reflected factual information that was inextricably intertwined with the deliberative nature of the report and that the data could be misinterpreted if disclosed, and therefore the data could not be reasonably segregated. The court could not agree with these conclusory statements because it had no way to evaluate whether any portions of the Final Report fell into non-exempt categories. The court ordered CMS to re-assess the Final Report and either disclose all reasonable segregable portions of non-exempt material or provide the court with more specific information justifying its withholding of the entire report.
Other documents. DFF also challenged CMS’s withholding of several attachment to a July 11, 2017 meeting invite to discuss Open Enrollment. Similar to the reasoning applied to the Final Report, the court found that the attachments fell under the consultant corollary exemption but CMS had not met its burden with respect to its segregability obligations. The court ordered CMS to re-assess the documents and either disclose all reasonably segregable portions of non-exempt material or provide the court with more specific information justifying its withholding of the attachments in their entirety.
Finally, DFF challenged CMS’s withholding of communications between CMS officials and employees of Nahigian Strategies, which is a public relations firm. Again, the court found these documents fit within the consultant corollary. However, DFF pointed to communications that included another participant who had an email address that did not belong to CMS or Nahigian Strategies. DFF argued that because CMS never explained who the third party was, it failed to establish that the consultant corollary applied to those communications. The court agreed and held that before it could grant summary judgement, CMS needed to provide further information.
The case is Civil No. 18-635 (JDB).
Attorneys: Benjamin M. Seel, Democracy Forward Foundation, for Democracy Forward Foundation. Jeremy S. Simon, U.S. Attorney's Office, for Centers for Medicare & Medicaid Services.
Companies: Democracy Forward Foundation
Cases: CaseDecisions EnrollmentNews HealthInsuranceExchangeNews DistrictofColumbiaNews NewsFeed
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