Empower Oversight Whistleblowers & Rsch. v. VA, No. 22-00559, 2024 WL 3278613 (E.D. Va. July 1, 2024) (Nachmanoff, J.)

Empower Oversight Whistleblowers & Rsch. v. VA, No. 22-00559, 2024 WL 3278613 (E.D. Va. July 1, 2024) (Nachmanoff, J.)

Re:  Request for records concerning VA’s responses to Senator Grassley’s letters regarding allegations of unethical conduct by certain officials

Disposition:  Granting defendant’s motion for summary judgment

• Litigation Considerations, Relief:  “[T]he Court finds that [plaintiff’s] claims regarding timeliness are moot.”  “FOIA recognizes no right to declaratory relief or attorneys’ fees under a theory of timeliness.”  “Accordingly, the Court grants summary judgment to Defendant on Counts I and II.”

• Litigation Considerations, Adequacy of Search:  “[T]he Court finds that [VA’s Office of the Executive Secretary (“OSVA”)’s] search was ‘reasonable in light of the totality of the circumstances.’”  “[Plaintiff’s] assertions regarding the alleged failure to follow leads in [a] system and the selection of email boxes similarly fall short.”  “In the first [interim agency decision (“IAD”)], Defendant informed [plaintiff] of the twenty email boxes as well as the search terms that would be applied to the search.”  “Contrary to [plaintiff’s] argument, this decision was adequately explained, as the OSVA FOIA officer was ‘uniquely well-situated to determine which VA employees’ email boxes might contain responsive records.’”  “These email boxes were chosen based on [defendant’s declarant’s] familiarity with the record and ‘her personal knowledge of the employees involved in responding to Senator Grassley’s letter[.]’”
  
  “The gravamen of [plaintiff’s] arguments regarding [VA’s Office of Inspector General (“OIG”)’s] productions are that OIG improperly narrowed its search to find records responsive to only item 2 of the Request and failed to follow leads that would produce additional information responsive to item 1.”  “As previously explained, OIG did in fact narrow the scope of its search to item 2 specifically because item 1 referenced Sen. Grassley’s letter to Secretary McDonough.”  “By statute, OIG and OSVA are independent.”  “The scope of this search was communicated to [plaintiff], as . . . OIG’s FOIA officer explains:  ‘[t]he OIG does not respond to Congressional letters addressed to the Secretary; it responds to Congressional letters addressed to the Inspector General.’”  “[Defendant’s declarant] further explains that ‘even though [OIG] interpreted item 1 of Plaintiff’s request as describing records created and maintained by VA, and not OIG, [her] office determined that these search terms would also produce records related to [i]tem 1 of Plaintiff’s request if such records existed.’”  “[Plaintiff] also challenges the selection of custodians whose email boxes were searched, noting that the five additional OIG employees shown to have communicated about the . . . investigation should also have been selected.”  “For one, an ‘agency is entitled to limit its search based on an appropriate internal analysis of the locations where responsive documents are most likely to be located.’”  “OIG’s affidavit avers that the two individuals selected, [the] VA [Inspector General] . . . and [the] OIG Congressional Liaison . . . were those most likely to have communicated with the VA about the investigation.”  “Defendant’s affidavit is entitled the presumption of good faith.”  “That others were identified as having generally communicated about the matter does not undermine that presumption or the adequacy of the search.”  Responding to one brief plaintiff argument “that the OIG did not produce records of communication between OIG and OSVA employees,” the court notes that, “[n]otably, relevant communications between the VA and OIG were discovered and produced through OSVA’s response – a fact [plaintiff] readily acknowledges.”  The court finds that, “[i]ntuitively, the email boxes of employees on opposite ends need not both be searched to produce duplicate copies of the same emails.”  “Lastly, [plaintiff] argues that the omission of the working files of the open investigation renders the search inadequate.”  However, the court notes that “[o]nce the investigation was completed, OIG searched the files and produced ‘the precise types of responsive, non-exempt records that [plaintiff] identified in its administrative appeal . . . .’”  “[Plaintiff] has not challenged the adequacy of this production.”  “Accordingly, the Court has no further function because [plaintiff] ‘has already received all of the information to which [it] is entitled to under the law[.]’”
   
• Exemption 5, Deliberative Process Privilege:  “[T]he Court upholds Defendant’s redactions pursuant to Exemption 5.”  “Here, Defendant claims that ‘all the records in question were created before OSVA responded to Senator Grassley’s letter on December 23, 2021, and therefore were predecisional.’”  “[Plaintiff] does not dispute the predecisional nature of the records, but instead argues that Defendant ‘has failed to carry its burden of demonstrating that factual information cannot be segregated from the responsive records.’”  “The Court notes that Defendant provides explanations for all the records challenged by [plaintiff], all of which are entitled to the presumption of good faith.”  “Agency declarations, such as those that Defendant has submitted, are afforded a presumption of good faith.”  “OSVA[’s] . . . declaration and the accompanying Vaughn index explain in detail the reasons behind each withholding pursuant to Exemption 5 as well as why all segregable information has been released.”  “[Defendant] explained that he had ‘reviewed the records to determine whether any facts contained in those records could be segregated for public disclosure.’”  “‘In this matter, the protected material is so inextricably intertwined with any disclosable information that it cannot be meaningfully segregated for release without destroying the integrity of the document.’”  “‘The release of factual information contained within draft documents would reveal the process by which the agency developed the final document – a process that is itself protected by the deliberative process privilege.’”  “For each instance where information was withheld pursuant to Exemption 5, [defendant] explains the particular reasons for the withholding in the Vaughn index.”  The court finds that “the withheld draft responses ‘allowed for the possibility of postcirculation changes[.]’”  “Such additions or deletions are the products of ‘editorial judgments,’ the disclosure of which ‘would stifle the creative thinking and candid exchange of ideas necessary’ for the agency to produce its final product.”  “Furthermore, the danger of chilling frank discussion
  among agency employees does not arise from the disclosure of the facts themselves, but ‘from disclosure that [the agency] as an institution made changes in a draft at some point[.]’”
   
• Exemption 5, Attorney-Client Privilege:  The court relates that, “[plaintiff] challenges redacted information in [one] email . . . .”  “That email was written by [the] VA Deputy General Counsel . . . to a VA employee and two OGC attorneys, ‘discussing the legal parameters related to’ Sen. Grassley’s inquiry.”  “As explained in OSVA’s Vaughn index, this email is deliberative, as it reflects the agency’s decision-making process, and is protected by attorney-client privilege.”  “[Plaintiff] does not challenge Defendant’s assertion of attorney-client privilege over this email.”  “[T]he Court upholds Defendant’s redactions pursuant to Exemption 5.”

• Exemption 6:  “[T]he Court upholds Defendant’s redactions pursuant to Exemption 6.”  “OSVA[’s] . . . supporting affidavit explains that the names redacted were of ‘lower-level VA employees’ and ‘non-VA employees’ who were uninvolved in the policy making decisions.”  “Higher level employees retain a privacy interest ‘in other identifying or contact information, such as cell phone numbers or direct email or telephone extensions.’”  “Likewise, OIG redacted the name and job title of a single ‘non-Senior Executive administrative employee who did not engage in policymaking . . . .’”  “The Court agrees that these employees have legitimate privacy interests in safeguarding this information ‘because of the potential for future harassment, annoyance, or embarrassment.’”  The court also finds that “[d]isclosing these names and emails would not provide insight into any undertakings by the government.”  “Rather, the disclosure of these names and emails could allow a ‘keen observer’ to ‘ascertain the full email addresses’ of current VA employees, and potentially send them harassing emails.”