Am. Oversight v. HHS, No. 22-5281, 2024 WL 2225336 (D.C. Cir. May 17, 2024) (Garcia, J.)

Am. Oversight v. HHS, No. 22-5281, 2024 WL 2225336 (D.C. Cir. May 17, 2024) (Garcia, J.)

Re:  Request for records concerning health care reform legislation

Disposition:  Reversing district court’s grant of government’s motion for summary judgment regarding applicability of Exemption 5; directing that requester’s motion for summary judgment be granted insofar as court determines that communications between agencies and Congress are not covered by Exemption 5 and that HHS’s search is inadequate; remanding for further proceedings consistent with opinion

• Exemption 5, “Inter-Agency or Intra-Agency” Threshold Requirement:  The Court of Appeals for the District of Columbia Circuit notes that “[it has] not had to decide whether agencies may invoke Exemption 5 to withhold agency records generated by a government consultant with its own stake in the outcome of the agency’s decision-making process.”  “Presented with the question, [the court] conclude[s] they may not.”  “In this case, two Executive Branch agencies invoked Exemption 5 to withhold communications with members of Congress and their staffs during negotiations over potential healthcare reform legislation.”  “Because the record shows Congress had an independent stake in that subject and did not provide disinterested advice as an agency employee would, [the court] conclude[s] that Exemption 5 does not apply to the records at issue and reverse[s] the district court.”
  
  “Until now, [the court has] not been required to reconcile [Department of Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001)], with [its] consultant corollary precedent.”  “In each of [its] post-Klamath cases on this subject, the outsider ‘did not represent an interest of its own, or the interest of any other client’ when it communicated with the agency.”  “Since Klamath, in other words, [the court has] only applied the corollary in ‘situations where an outside consultant did not have its own interests in mind.’”  “This case is different.”  “[The requester] does dispute whether the agency outsiders – members of Congress and their staffs – represented an interest of their own in the matters under discussion.”  “[The requester] argues – and both the district court and [the court] agree – that members of Congress and their staffs brought ‘divergent interest[s] to bear’ when they engaged with the agencies concerning potential healthcare legislation.”  “Presented with the question, [the court] now follow[s] the path marked by Klamath.”  “To recap:  The consultant corollary is limited to situations where the outside entity ‘functions just as an employee would be expected to,’ in the sense that the entity does not ‘represent an interest of its own, or the interest of any other client, when it advises the agency that [engages] it.’”  “This does not mean that the outsider must be ‘devoid of a definite point of view’ when communicating on the subject at issue – the outsider’s expertise and views on a subject, after all, are presumably why an agency would consult them.”  “Similarly, the possibility that a consultant is ‘paid’ or ‘may derive intellectual satisfaction from consulting and possible adoption of their views does not mean that they have a personal or economic stake in the outcome.’”  “The key is that the consultant must not have a stake in the outcome of the agency’s process that would render its advice on the subject anything other than disinterested.”  “The inquiry is whether, like an agency employee, the consultant’s only ‘obligations are to truth and its sense of what good judgment calls for.’”  “The Ninth and Tenth Circuits have similarly adopted this approach to the consultant corollary following Klamath.”  “The Sixth Circuit has gone further and concluded that Klamath forecloses any form of the consultant corollary.”  “Meanwhile, no appellate court has adopted the alternative tests proposed by the government.”
  
  “The government first urges that Exemption 5 covers any document, including those created by non-agency personnel, that the agency considered as part of its deliberative process.”  “After Klamath, that cannot be the test.”  “Indeed, the government urged a similar approach in Klamath itself, and the Supreme Court rejected it.”  “Again, that approach would deprive the first condition in Exemption 5 – the requirement that the communication be ‘intra-agency’ – of any ‘independent vitality.’”  “Like the Court in Klamath, [the court has] no reason to doubt the government’s assertions that allowing disclosure of certain communications between Executive Branch agencies and Congress may chill the candor and extent of such discussions.”  “But [the court is] not at liberty to disregard either Klamath or the statutory text.”  “To the extent any of [the court’s] pre-Klamath precedents supported the government’s broad any-deliberative-document test, they are no longer good law.”
  
  “The government next argues that if Klamath has any effect on [the court’s] precedent, it is only to create an exception based on the specific facts of that case.”  “The government therefore suggests that documents used in an agency’s deliberative process are always protected unless generated by or exchanged with outsiders who were not just ‘self-advocates,’ . . . but who were also operating ‘at the expense of others,’ . . . and thus ‘necessarily adverse’ to competitors outside the agency.”  “It is certainly true that Klamath dictates that such facts take documents outside of Exemption 5’s protection.”  “But nothing in Klamath instructs or even suggests that those facts constitute the proper test for determining whether a record is ‘intra-agency’ generally.”  “Instead, the opinion clarified that the fundamental distinction rendering the Tribes unlike agency personnel in the relevant respect was that they ‘necessarily communicate[d] with the Bureau with their own . . . interests in mind.’”  “The additional fact that the Tribes were advocating for finite benefits at the expense of others served only to make the distinction from agency personnel ‘even sharper.’”  “Moreover, no appellate court in the roughly twenty-three years since Klamath has adopted that case’s specific facts as a generally applicable test.”  “[The court] can readily see why.”  “The government offers no explanation of how using the facts of Klamath as the test for Exemption 5’s coverage would bear any relationship to the statutory requirement that the record at issue be ‘intra-agency.’”  “As already explained, requiring the outsider to lack a stake in the outcome of the agency’s decision is a sensible application of that term, because then the outsider may function ‘just as an employee’ inside the agency ‘would be expected to.’”  “The government ventures no theory of how an outsider with a stake in the outcome could ever be regarded as sufficiently analogous to agency personnel to fit within the statutory text.”  “Nor does it provide any reason that the test should turn on whether that outsider is also competing with other agency outsiders for a finite benefit.”
  
  “Finally, the agencies note that Congress consciously designed FOIA to ensure that congressional documents would be exempt from disclosure.”  “Nothing about today’s decision changes the fact that Congress itself is not subject to FOIA requests.”  “Instead, a FOIA request can reach only ‘agency records.’”  “A record from Congress does not become an ‘agency record’ just because it comes into the agency’s possession if, for example, ‘Congress manifested a clear intent to control the document.’”  “On appeal, the agencies have not disputed that each of the communications at issue are agency records subject to FOIA.” 
  
  “Our dissenting colleague would rule that all communications between agencies and Congress regarding potential legislation are protected by Exemption 5, but he would do so on grounds entirely different from those the government offers.”  “Unlike the government, the dissent argues that this case is not governed by the consultant corollary or Klamath at all.”  “Instead, the dissent contends that its broad position is dictated by Rockwell International Corp. v. DOJ, 235 F.3d 598 (D.C. Cir. 2001), Murphy v. Dep’t of Army, 613 F.2d 1151 (D.C. Cir. 1979), and the text of 5 U.S.C. § 552(d).”  “But – as the government’s failure to make this argument suggests – those cases and Section 552(d) do not address, much less control, the question here.”  “The disputed question in those cases was instead whether the agencies subsequently waived Exemption 5’s protection by sending those documents to Congress.”  “[The court] answered no, drawing in part on 5 U.S.C. § 552(d), which states that ‘[t]his section is not authority to withhold information from Congress.’”  “Because Congress had ‘carve[d] out for itself a special right of access to privileged information’ in Section 552(d), we rejected a waiver rule under which ‘every disclosure to Congress would be tantamount to a waiver of all privileges and exemptions’ available to executive agencies.”  “Unlike in Rockwell and Murphy, the disputed question in this case is Exemption 5’s threshold requirement – whether the communications between the agencies and Congress are intra-agency documents.”  “The parties do not raise or discuss the possibility of waiver.”  “That framing again makes sense, given the nature of the documents at issue here:  Communications generated through the iterative back-and-forth between the agencies and Congress.”  “Contrary to the dissent, that question is governed by the consultant corollary and Klamath, . . . not by cases addressing waiver or by Section 552(d).”  “This opinion does not affect Murphy, Rockwell, or the government’s ability to argue, in a future case involving cross-branch interaction, that documents withheld under FOIA Exemption 5 were initially intra-agency or inter-agency and that the analysis should be framed in terms of whether the government waived those protections.”  “But the government, for good reason, has not attempted to frame the communications at issue in this appeal in that way.”  “This case also does not address the question – also raised only by the dissent – whether an agency’s communications with the President are ‘intra-agency’ or ‘inter-agency,’ because the only communications at issue here are those between Congress and agencies, not the President or his staff and the agencies.”  “If, as the government and the dissent fear, neither Exemption 5 nor any other exemption covers ‘records whose release would threaten . . . vital interests, the Government may of course seek relief from Congress.’”  “‘All [the court] hold[s] today is that Congress has not enacted the FOIA exemption the [agencies] desire[ ].’”  “‘[The court] leave[s] to Congress, as is appropriate, the question whether it should do so.’”
  
  Based on the above, the court finds that “[u]nder the post-Klamath analysis, the communications between the agencies and Congress here are not covered by Exemption 5.”  “As Klamath explained, the hallmark of a consultative relationship is that the outside entity is not ‘communicating with the Government in their own interest or on behalf of any person or group whose interests might be affected by the Government action addressed by the consultant.’”  “When that is true, the outsider functions ‘just as an employee would be expected to.’”  “Cases in which members of Congress or their staffs could fit that description may be rare.”  “Congress and the Executive Branch, of course, ‘have an ongoing institutional relationship as the “opposite and rival” political branches established by the Constitution.’”  “When members of Congress and their staffs engage with executive agencies concerning legislation, they are almost inevitably acting on behalf of interests other than those of the agencies, including those of Congress as an institution and those of their constituents.”  “This case, however, does not require [the court] to decide – and we do not decide – whether members of Congress or their staffs could ever satisfy the post-Klamath consultant corollary requirements.”  “In this case, the record makes clear that in the communications between the agencies and Congress, each side had an independent stake in the potential healthcare reform legislation under discussion.”  “The agencies’ own declarations reveal this dynamic.”  “OMB’s declarant stated that it ‘sought to influence and shape pending legislation by discussing, consulting, and negotiating with Congressional personnel.’”  “The declarant similarly stated that some communications between ‘the Administration and Congress . . . discussed areas where they agreed and sources of ongoing disagreement.’”  “An agency would not develop a ‘strategy’ to ‘negotiate’ with and ‘advocate’ to outsiders to garner their ‘support’ if those outsiders were analogous to an employee or a disinterested consultant without its own independent stake in the matter.”  “At least where agencies and Congress engage in back-and-forth negotiations and related communications over the substance of potential legislation, Congress is plainly ‘represent[ing] an interest of its own’; otherwise, there would be no cause to negotiate.”  “The members of Congress and their staffs certainly had ‘obligations to truth and [their] sense of what good judgment calls for.’”  “But Klamath makes clear those must be the consultant’s ‘only obligations,’ and that is not true here.”  “As it argued in the district court, the government insists that Congress was not ‘self-interested’ in the relevant sense because the agencies were part of the Trump Administration and communicated with ‘like-minded allies in Congress’ who ‘shared the common goal of enacting health care reform legislation.’”  “Our dissenting colleague endorses this argument.”  “But that argument misunderstands the inquiry.”  “The question for purposes of the consultant corollary is not whether the agency and non-agency share a common goal or interest at some level of generality.”  “The question, instead, is whether the outsider is disinterested – whether it comes to the table with no obligation or stake in the outcome of an agency’s process other than a duty to provide good advice to the agency, just as the agency’s own personnel is expected to.”  The court relates that, for example, “a health insurance company could have shared the administration’s goal of enacting healthcare reform legislation but could not qualify as an ‘intra-agency’ consultant given its independent financial interest in the substance of any legislative reform.”  “The government and dissent also note that members of Congress, like the President, take oaths to defend the Constitution of the United States.”  “If we declared this common obligation enough to trigger Exemption 5, we would be rewriting the statute to cover all ‘intergovernmental’ communications rather than all ‘interagency or intra-agency’ ones.”  “The Supreme Court has cautioned against ‘taking a red pen to the [FOIA] statute’ by ‘“cutting out some” words and “pasting in others.”’”  “At bottom, the government bore the burden of establishing that Exemption 5 applies.”  “Yet it did not submit any evidence showing that the relevant congressmembers and their staffs were functionally acting as agency employees.”  “Instead, as [the court has] explained, the record in this case shows that those who communicated with HHS and OMB about potential healthcare reform legislation had an independent stake in the matter.”
  
  Circuit Judge Wilkins writes separately to concur in part and dissent in part.  Judge Wilkins writes that “[t]he text, purpose, structure, and legislative history of the FOIA statute support application of the exemption.”  “The ramifications of the majority’s contrary interpretation of FOIA are actually quite breathtaking.”  “The majority’s rule will chill communications between Congress and the Executive, stymie the working relationship between Congress and the Executive, and inhibit the President’s ability to perform effectively the core Article II duty of recommending legislation to the Congress.”  “Interpreting Section 552(d) to mean that Exemption Five should not be construed in a manner to upset the historic relationship between the Executive and Congress comports with the structure and purpose of FOIA.”  “Congress, in its wisdom, exempted its own records and communications (deliberative or otherwise) from public disclosure through FOIA.”  “It makes no sense that this same Congress intended to disclose its own confidential, deliberative communications with executive agencies, while simultaneously exempting confidential, deliberative communications sent from one executive agency to another.”  “Nor does it make sense that Exemption Five would protect a deliberative document sent from one executive agency to another – even though both agencies generally fall within the scope of FOIA – but it would not protect the same document from disclosure if either agency shared the document with Congress, even though Congress is not subject to FOIA.”  “The anomalies of the majority’s logic do not end there.”  “Congress also exempted the President and his or her top aides from the definition of agency.”  “Yet no one would seriously contend that an agency’s deliberations and recommendations lose Exemption Five protection when sent to the President or a top aide, based on a construction that the communications were neither sent from one ‘agency’ to another ‘agency,’ nor kept within the same ‘agency.’”  “Klamath did not ‘eviscerate’ [the court’s] holdings in Murphy or Rockwell interpreting Section 552(d) and its impact on the relationship between Congress and the Executive, because the Court did not touch upon those issues.”  “The majority contends that [Judge Wilkins’s] reasoning is ‘entirely different’ than the government’s, . . . but [Judge Wilkins] beg[s] to differ.”  “As [has] [Judge Wilkins], the government cited Justice Scalia’s observation, quoted in Klamath, that ‘it is both “textually possible and much more in accord with the purpose” of Exemption [Five] to read the term “intra-agency memorandum” more expansively.’”  “As [has] [Judge Wilkins,] the government cited Murphy and Rockwell to argue ‘[i]t would undermine the statutory scheme if an agency’s decision to exchange privileged and confidential communications with Congress resulted in the public gaining access to materials that would have remained confidential if they had been solely exchanged within the agency, or solely exchanged within Congress.’”  “Based upon all of this, the government articulated the governing test as primarily focused on ‘whether the communications were “part and parcel of the agency’s deliberative process.”’”  “While the government did not say explicitly, as [has Judge Wilkins], that the consultant corollary doctrine is completely ill-fitted to Executive-Congress advice, there is very little daylight between the government’s bottom-line position and [that of Judge Wilkins], based on [the] respective understandings of Klamath and the precedent in this circuit.”  “Why would Congress intend to protect its right to receive information confidentially from the Executive, but not intend to protect its right to advise the Executive confidentially in response to the information it receives?”  “How is such an outcome consistent with the fact that Congress did not intend for FOIA to impact the ‘very special relationship’ between Congress and the Executive?”  “Here, the district court found, and it appears undisputed on appeal, that the documents at issue involved discussions between ‘members of Congress and congressional staff of the Republican Party who shared an interest with agencies in the current Republican administration in working to repeal the [Affordable Care Act] and replace it with the health care reform legislation that was under consideration.’”  “These discussions fall squarely within the President’s responsibilities under the Recommendation Clause.”  “A ruling that these communications fall outside of Exemption Five will force the President to either make uninformed, less effective recommendations or to fulfill this constitutional duty in a fishbowl.”  “Neither of those outcomes is consistent with the FOIA statute or the Constitution.”
  
  Judge Wilkins writes that “[e]ven if Klamath’s consultant corollary test governed this case, [he] nonetheless believe[s] it is an error to conclude there is a fatal conflict of interest present in these factual circumstances.”  “Members of Congress are not ‘seeking government benefits’ or seeking ‘claims’ from the government; they are the government.”  “Further, Klamath explained that Exemption Five can apply where a consultant ‘functions just as an employee would be expected to do’ because the consultant’s ‘only obligations are to truth and its sense of what good judgment calls for. . . . .’”  “[The court has] no basis to hold that members of Congress and their staff do not have an ‘obligation to the truth and . . . good judgment,’ as described in Klamath.”  “Just as the President is bound by oath to ‘faithfully execute[ ]’ his duties and support and defend the Constitution, . . . members of Congress take a similar oath.”
  
  “In that vein, [Judge Wilkins is] compelled to point out that appellants introduced absolutely no evidence in the district court to support their arguments about a conflict of interest.”  “There was no declaration from a current or former member of Congress, a current or former staffer, or an expert witness (like a political science professor).”  “Thus, the plaintiff’s argument that Congress had an actual conflict of interest with the Executive has no support in the evidentiary record before [the court].”
   
• Litigation Considerations, Adequacy of Search:  The Court of Appeals for the District of Columbia Circuit relates that “[the requester] also appeals the district court’s grant of summary judgment to HHS on the adequacy of its search for responsive records.”  “[The court’s] review is de novo.”  “[The court] conclude[s] that HHS failed to meet its burden and that [the requester] is entitled to summary judgment on this issue.”  “The agency’s affidavit sufficiently explains why it searched for ‘health care reform,’ ‘ACA,’ and ‘AHCA.’”  “But on the terms left out of the search, the agency’s affidavit is vague and conclusory.”  “HHS’s declarant explained that the abbreviated versions ‘are frequently used in the day-to-day operations’ within the agency, ‘as opposed to the unabbreviated versions,’ and states that those terms ‘were therefore reasonably likely to locate responsive records.’”  “The declarant continued that ‘[i]t is reasonably likely that the use of more general terms would have resulted in an excessive number of records that would have been labeled “potentially responsive,” which [HHS] would have had to review and process, without a meaningful increase in the likelihood of identifying additional records that were actually responsive.’”  “The affidavit also states that HHS ‘determined that any potentially responsive records’ would ‘contain one or more’ of its chosen search terms.”  “That explanation does not constitute ‘reasonabl[e] detail’ as to why HHS limited its search and omitted obvious alternative terms for the subject matter of [the requester’s] request.”  “The statement that it is ‘reasonably likely’ that using ‘more general terms’ would result in ‘excessive’ records is, at best, vague.”  “Terms like the full statute names and the phrase ‘Obamacare’ and even ‘repeal and replace’ are no more general than the acronyms HHS used.”  “Moreover, the statement that abbreviations like ACA and AHCA are ‘frequently used’ does nothing to dispel the commonsense point that the unabbreviated forms and common terms like ‘Obamacare’ or ‘repeal and replace’ would also have been used often, even if not as frequently as HHS’s chosen terms.”  “Moreover, though not required given the inadequacy of HHS’s affidavit, [the requester] has provided ‘positive indications of overlooked materials’ to rebut the affidavit.”  “[The requester] submitted transcripts and identified other documents showing that HHS employees, then-HHS Secretary Tom Price, and members of Congress used the unabbreviated statute names and the terms ‘Obamacare’ and ‘repeal and replace.’”  “Many of these statements use those terms without pairing them with the terms HHS included in its search.”  “[The requester] requests records of communications involving these individuals and others.”  “And there is no reason to doubt that HHS and members of Congress and their staffs also used these terms in private communications.”  “With that context, HHS’s conclusory statement that the abbreviations were ‘frequently used in the day-to-day operations’ at HHS, ‘as opposed to the unabbreviated versions,’ does not suffice.”  “[The court] therefore conclude[s] that HHS’s search must include the unabbreviated statutory references and the terms ‘Obamacare’ and ‘repeal and replace.’”