Ams. for Prosperity Found. v. Ctrs. for Medicare & Medicaid Servs., No. 21-02021, 2024 WL 578955 (D.D.C. Feb. 13, 2024) (Nichols, J.)

Ams. for Prosperity Found. v. Ctrs. for Medicare & Medicaid Servs., No. 21-02021, 2024 WL 578955 (D.D.C. Feb. 13, 2024) (Nichols, J.)

Re:  Request for records concerning Medicaid improper payments

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Litigation Considerations, In Camera Inspection:  The court relates that “[t]he government . . . filed an ex parte declaration, . . . which Plaintiff has moved to exclude from the record.”  “The Court first addresses Plaintiff’s Motion to Exclude” and finds that “all . . . requirements for relying on an ex parte declaration have been met here.”  “First, ‘the validity of the government’s assertion of exemption cannot be evaluated without information beyond that contained in the public affidavits and in the records themselves.’”  “As the Court explained at the August 9, 2023 hearing, the public record did not permit it to properly evaluate the government's invocation of Exemption 5.”  “The Court also could not have properly evaluated the foreseeability of harm from the documents themselves.”  “The declaration provides critical context linking the materials at issue here to present-day concerns in a way that would not have been apparent from reading the documents themselves – just as the Court predicted at the hearing.”  “Second, ‘public disclosure of that information would compromise the secrecy asserted’ because the declaration needed to disclose the content of the materials themselves to properly articulate foreseeable harm.”  “The Court has also satisfied what the Plaintiff describes as the ‘procedural[ ]’ requirements for relying on the ex parte declaration.”  “The Court has explained its ‘reasons’ for accepting the ex parte declaration to the greatest extent possible given the confidential nature of the information.”  “The Court will also make sure that ‘as much as possible of the in camera submission’ is ‘available to the opposing party.’”  “The new information in the declaration that is material to the Court’s decision is confidential, and any other information in the declaration is either confidential as well or already public.”  “In an abundance of caution, however, the Court will order the government to file a version of the declaration on the public docket with only confidential information redacted.”  “Finally, although Plaintiff insists that the Court must inspect the records themselves before concluding that [the] requirements are met, . . . the cases it cites do not impose any such requirement . . . .”  “The Court will therefore rely on the declaration.”

• Exemption 5, Foreseeable Harm and Other Considerations & Litigation Considerations:  “Turning to the cross-motions for summary judgment, . . . the Parties dedicate much of their briefs to litigating the proper standard for evaluating an agency’s attempt to demonstrate reasonable foreseeability in the context of the attorney-client privilege.”  “The government maintains that the agency’s burden is ‘low’ in this context because the foreseeability of harm from disclosing material protected by the attorney-client privilege is ‘self-evident.’”  “In contrast, Plaintiff insists that an agency cannot merely invoke the privilege and must instead offer concrete and precise reasons that show the foreseeability of harm.”  “The Court need not resolve this question because the government has shown reasonably foreseeable harm even under Plaintiff’s standard.”  “Assuming the formulation used by the Court of Appeals in the context of the deliberative process privilege applies here, an agency must ‘concretely explain how disclosure “would” – not “could” – adversely’ impact the interests protected by the attorney-client privilege.”  “That requires ‘a focused and concrete demonstration of why disclosure of the particular type of material at issue will, in the specific context of the agency action at issue, actually impede’ the interests protected by the privilege.”  “The government has met that burden here based on its ex parte declaration.”  “The confidential nature of the material permits the Court to explain why only at a high level of generality.”  “But the declaration does more tha[n] simply ‘mouth[ ] the generic rationale for the . . . privilege itself.’”  “Rather, it articulates ‘the particular sensitivity of the types of information at issue’ here.”  “And by providing important context that links the sensitive contents of older materials to reasonably foreseeable present-day harms, it demonstrates ‘the precise damage . . . that would result from their release.’”  “The Court cannot say more on the public record, however, without disclosing the very information the government seeks to protect.”