Heffernan v. Azar, No. 15-2194, 2018 WL 3150214 (D.D.C. June 27, 2018) (Walton, J.)

Heffernan v. Azar, No. 15-2194, 2018 WL 3150214 (D.D.C. June 27, 2018) (Walton, J.)

Re:  Request for records concerning HHS's Department of Spiritual Ministry

Disposition:  Granting in part and denying in part without prejudice defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment.

• Litigation Considerations, Adequacy of Search:  The court finds that the defendant's search for clinical center policies was adequate, explaining, "the plaintiff's conjecture and speculative arguments that policies that must have been adopted have not been produced has no bearing on the Court's determination of whether the defendant's search was adequate."  The defendant "conducted multiple searches of the Spiritual Care Department's policy book [. . .] [and] went beyond the policy book, searching electronic files using reasonably tailored search terms and paper files of employees likely to possess the policies sought by the plaintiff."  In response to the plaintiff's argument that "the defendant's electronic search did not utilize search terms that were 'likely to result in locating responsive records[,]'" the court "finds the search terms used by the defendant to search for the Clinical Center's policies . . . were reasonable and adequate."  The court similarly holds that "defendant's search for records regarding the 2007 operational review, chaplain staff meetings, and Advisory Board meetings was reasonable and adequate."  
  
  However, the court "finds that the defendant's search for the Chief Operating Officer's Power Point presentation was not sufficiently adequate" because "merely searching the location '"most likely" to contain responsive records is not the relevant metric.'"  Rather, "the defendant was required to submit reasonable detailed declarations 'averring that all files likely to contain responsive materials (if such records exist) were searched,' which the defendant has not done."  The court similarly finds that "the defendant's descriptions regarding its search efforts for [a specific] response to the July 27, 2009 email 'do not contain sufficient information for the Court to assess whether the defendant conducted a [reasonable search]."
   
• Exemption 5, Deliberative Process Privilege:  The court agrees with the defendant in holding, "the mere fact that HHS elected not to protect the three identified reports from disclosure pursuant to the deliberative process has no bearing on the defendant's assertion of the applicability of the deliberative process privilege as to the documents in dispute in this case."  In response to the plaintiff's argument that the recommendations in the reports were adopted by the agency, "the Court concludes that [. . .] the Operational Review Team’s final report and the Marit Focus Groups' final report were neither formally or informally adopted by the defendant, and therefore the recommendations withheld by the defendant remain protected by the deliberative process privilege."  The court explains, "the record contains no evidence that HHS uses the Operational Review Team's final report or the Marit Focus Groups' final report 'as the agency's position on an issue or used by the agency in its dealings with the public[,]'" and "the final reports were issued by individuals without decision-making authority[.]"  Although the defendant "took initial steps regarding the potential implementation of changes based on those recommendations [. . . .] those steps were nothing more than part of the [defendant's] deliberative process of determining whether changes to its policies and practices based on those recommendations were appropriate."
  
  In examining specific "pre-final" documents, the court finds that "although the pre-final draft press release was crafted before the operational review and therefore would be pre-decisional, the defendant’s descriptions of this document are too obscure for the court to determine its deliberative aspect."  The court agrees with the defendant, however, in holding that "the defendant's representations regarding the Operational Review Team's final report are sufficient to indicate that the pre-final draft reports were also not adopted or used by the SMD when dealing with the public."  Regarding certain email exchanges, the court holds that the plaintiff's "speculation that 'working law' may exist in the e-mails cannot serve as a basis to conclude that the defendant has waived the deliberative process privilege."  Finally, the court upholds application of Exemption 5 to focus group records because although "the Marit Focus Group, as well as this specifically withheld information, occurred after the Operational Review Team’s Final Report and recommendations [. . .] the record does not indicate that the [defendant's] deliberative process ended with the Operational Review Team’s Final Report and recommendations."
   
• Litigation Considerations, Segregability: "[T]he court is not satisfied that the defendant has conducted a proper segregability analysis regarding the information that it has withheld," explaining that only one of six declarations "addresses the defendant's segregability assessment of one particular document."