UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PROTECT DEMOCRACY PROJECT, INC.,

Plaintiff,

v. Civil Action No. 17-792 (RDM) U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Protect Democracy Project, Inc. (“Protect Democracy”) brings this action under

the Freedom of Information Act (FOIA),

, seeking to compel the Department of

Health and Human Services to release records related to the discontinuation of advertising for

healthcare.gov, the federal health insurance marketplace, during the final weeks of the 2016–

2017 open enrollment period. The case is now before the Court on the parties’ renewed cross-

motions for summary judgment. See Dkt. 43; Dkt. 45.

The sole remaining issue is whether the Department lawfully redacted portions of 13

records pursuant to the deliberative process privilege and FOIA Exemption 5. For the reasons

explained below, the Court concludes that the Department has met its burden with respect to one

of these records but that in camera review is necessary for the remaining 12. Accordingly, the

Court will GRANT in part and DENY in part, without prejudice, the Department’s motion for

summary judgment; DENY without prejudice Protect Democracy’s cross-motion for summary

judgment; and ORDER the Department to provide the Court with unredacted copies of the 12

documents identified below for ex parte, in camera review. I. BACKGROUND

On February 15, 2017, Protect Democracy submitted a FOIA request to the Department

seeking the following records:

(1) Documents between and among employees of the Department of Health and Human Services (“HHS”) and/or the Centers for Medicare and Medicaid Services (“CMS”) “concerning the decision to discontinue advertising for healthcare.gov and/or enrollment in healthcare coverage;” (2) Documents between the HHS and/or CMS transition teams and the White House concerning the same; (3) Documents between and among employees of HHS and/or CMS “concerning the effect of the Trump Administration’s decision to discontinue the advertising detailed above on enrollment numbers;” (4) Documents between and among employees of the HHS Office of Public Affairs and/or CMS Offices of Communications “concerning the article published by Politico on January 26, 2017 entitled, ‘Trump White House Abruptly Halts Obamacare Ads;’” (5) Documents between and among employees of HHS and/or CMS “concerning the number of people who enrolled in healthcare coverage after President Trump took office;” and (6) Documents between HHS and/or CMS employees and the White House concerning the same.

Dkt. 1 at 2–3 (Compl. ¶ 5). When the Department did not timely respond, see

(a)(6)(A)(i), Protect Democracy commenced this action, see Dkt. 1 (Compl.).

The Department eventually conducted a search for responsive records and released 274

pages of records to Protect Democracy, redacting certain portions under FOIA Exemption 5.

Dkt. 18-1 at 7. On December 15, 2017, the Department moved for summary judgment, Dkt. 18,

and on January 23, 2018, Protect Democracy filed a cross-motion for summary judgment, Dkt.

20. In its cross-motion, Protect Democracy argued that (1) the Department did not conduct an

adequate search, and (2) the Department unlawfully redacted numerous records pursuant to

FOIA Exemption 5.

.

2 The parties significantly narrowed the scope of their dispute over the course of briefing.

After reviewing Protect Democracy’s opposition and cross-motion, the Department requested an

extension of time to file its final brief so that it could conduct further searches for responsive

records, Dkt. 22, and the Court granted that request, Minute Order (Feb. 21, 2018). The

Department then conducted supplemental searches and released an additional 256 pages of

responsive records. Dkt. 27 at 12. The Department also reconsidered some of its prior

withholdings and released unredacted copies of a handful of documents.

. These releases

had the effect of narrowing the parties’ dispute to whether certain records fell within the

attorney-client privilege or deliberative process privilege, as the Department claimed.

In a Memorandum Opinion and Order, the Court granted summary judgment in favor of

the Department with respect to its attorney-client privilege withholdings but concluded that the

Department’s Vaughn indices had not provided the Court with sufficient detail about the

deliberative process privilege withholdings to assess whether they were proper, and so the Court

denied summary judgment as to those withholdings. Protect Democracy, Inc. v. HHS,

(D.D.C. 2019) (“Protect Democracy I”). The Court also granted in part and

denied in part Protect Democracy’s cross-motion for summary judgment.

at 171–72. The

Court explained that the same lack of detail that prevented the Court from “evaluat[ing] whether

the redactions were lawful” also left the Court unable to conclude that “Exemption 5 [was]

inapplicable or that the redacted material [was] not deliberative.”

. With one

exception, the Court also denied Protect Democracy’s request that the Court conduct an in

camera review of the disputed records and, instead, ordered the Department to supplement its

Vaughn indices and/or declarations to better explain the bases for its withholdings.

,

3 172. The Department subsequently released revised versions of 12 records, with narrower

redactions. See Dkt. 44 at 8.

On October 9, 2020, the Department renewed its motion for summary judgment, Dkt. 43,

and, along with that motion, filed a supplemental Vaughn index providing additional detail

concerning the withheld documents. Dkt. 43-3. Protect Democracy, in turn, filed a renewed

cross-motion for summary judgment on October 29, 2021. Initially, Protect Democracy

identified 23 records in which it believed the Department had unlawfully redacted responsive

information. Over the course of briefing, the parties have since narrowed the scope of their

disagreement to redactions in 13 records.

II. LEGAL STANDARD

The Freedom of Information Act supports a fundamental pillar of free societies:

transparency in government. FOIA is premised on the notion that “an informed citizenry [is]

vital to the functioning of a democratic society” and necessary to “check against corruption and

hold the govern[ment] accountable.” NLRB v. Robbins Tire & Rubber Co.,

(1978). The “general philosophy” of FOIA is “full agency disclosure.” U.S. Dep’t of Def. v.

Fed. Labor Rels. Auth.,

(1994) (quoting Dep’t of Air Force v. Rose,

(1976)). Upon receiving a FOIA request, an agency must disclose all responsive

records to the requestor unless those records fall within one of nine statutory exemptions. Id.;

see

(b). “These exemptions are ‘explicitly made exclusive’ and must be ‘narrowly

construed.’” Milner v. Dep’t of Navy,

, 565 (2011) (first quoting EPA v. Mink,

(1973); and then quoting FBI v. Abramson,

(1982)).

The agency bears the burden of showing that a claimed exemption applies. Fed. Open

Mkt. Comm. of Fed. Reserve Sys. v. Merrill,

(1979); Loving v. Dep’t of Def.,

4

(D.C. Cir. 2008). But merely identifying an exemption that covers some

material found in a record does not permit an agency to withhold the record in its entirety.

Rather, the agency must “take reasonable steps necessary to segregate and release nonexempt

information.”

(a)(8)(A)(ii)(II).

FOIA cases are typically resolved on motions for summary judgment under Federal Rule

of Civil Procedure 56. See Beltranena v. U.S. Dep’t of State,

(D.D.C.

2011). To prevail on a summary judgment motion, the moving party must demonstrate that there

are no genuine issues of material fact and that she is entitled to judgment as a matter of law. See

Celotex Corp. v. Catrett,

, 322–23 (1986). In FOIA cases, an agency can meet this

burden by submitting “relatively detailed and non-conclusory” affidavits or declarations,

SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991), and an index of the

information withheld, Vaughn v. Rosen,

, 827–28 (D.C. Cir. 1973). The Court may

grant summary judgment solely on the basis of information provided by an agency in

declarations when those declarations (1) describe “the documents and the justifications for

nondisclosure with reasonably specific detail,” (2) “demonstrate that the information withheld

logically falls within the claimed exception,” and (3) “are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.” Mil. Audit Project v. Casey,

(D.C. Cir. 1981); see also Gallant v. NLRB,

(D.C. Cir. 1994).

If “agency affidavits in support of a claim of exemption are insufficiently detailed,”

however, “[s]ummary judgment may not be appropriate without in camera review.” Armstrong

v. Exec. Office of President,

(D.C. Cir. 1996). In such a circumstance, “district

court judges [have] broad discretion in determining whether in camera review is appropriate.”

5 Id.; see, e.g., Elec. Priv. Info. Ctr. v. DOJ,

, 52 (D.D.C. 2020); Int’l Counsel

Bureau v. U.S. Dep’t of Def.,

(D.D.C. 2012).

The Court reviews an agency’s decision to withhold records de novo. See

(a)(4)(B).

III. ANALYSIS

The remaining issue in this case is whether the Department lawfully redacted information

in 13 records pursuant to FOIA Exemption 5: Documents 2a, 2b, 4, 5, 6, 7, 11, 15, 17a, 19, 20,

21, and 23. Because Protect Democracy has now withdrawn its challenges to Documents 1, 8, 9,

and 14, and to Document 17a’s redaction of an email address (but not the remaining redactions

to Document 17a), Dkt. 49 at 1 n.1, the Court will dismiss as moot Protect Democracy’s claims

regarding Documents 1, 8, 9, and 14, and the redaction of the email address from Document 17a.

The Department relies on the deliberative process privilege to justify its redactions in the

13 disputed records. See Dkt. 43; Dkt. 46. The deliberative process privilege, as embodied in

FOIA Exemption 5, protects “documents ‘reflecting advisory opinions, recommendations[,] and

deliberations comprising part of a process by which governmental decisions and policies are

formulated.’” NLRB v. Sears, Roebuck & Co.,

(1975) (quoting Carl Zeiss

Stiftung v. V.E.B. Carl Zeiss, Jena,

(D.D.C. 1966)). The “privilege rests on

the obvious realization that officials will not communicate candidly among themselves if each

remark is a potential item of discovery and front page news, and its object is to enhance ‘the

quality of agency decisions,’ by protecting open and frank discussion among those who make

them within the Government.” Dep’t of Interior v. Klamath Water Users Protective Ass’n,

, 8–9 (2001) (citation omitted) (quoting Sears, Roebuck & Co.,

).

6 “To qualify for withholding under Exemption 5’s [deliberative process] privilege,

information must be both ‘predecisional’ and ‘deliberative.’” Petrol. Info. Corp. v. U.S. Dep’t of

Interior,

(D.C. Cir. 1992); see also Nat’l Sec. Archive v. CIA,

(D.C. Cir. 2014); Judicial Watch, Inc. v. FDA,

(D.C. Cir. 2006). A record

“is predecisional if it was ‘prepared in order to assist an agency decisionmaker in arriving at his

decision,’ rather than to support a decision already made,” and it is “deliberative if it ‘reflects the

give-and-take of the consultative process.’” Petrol. Info. Corp.,

(first quoting

Renegotiation Bd. v. Grumman Aircraft,

(1975); and then quoting Coastal

States Gas Corp. v. Dep’t of Energy,

(D.C. Cir. 1980)). As with other FOIA

exemptions, the agency bears the burden of showing that it has properly invoked the privilege.

See, e.g., Prop. of People, Inc. v. OMB,

(D.D.C. 2018).

To meet this burden, the agency must offer “a relatively detailed justification” for

asserting the privilege. Elec. Privacy Info. Ctr. v. DEA,

(D.D.C. 2016)

(quoting Mead v. Dep’t of Air Force,

(D.C. Cir. 1977)). The agency “cannot

justify its withholding on the basis of summary statements that merely reiterate legal standards or

offer ‘far-ranging category definitions for information.’” Citizens for Responsibility & Ethics in

Wash. v. DOJ,

(D.D.C. 2013) (quoting King v. DOJ,

(D.C. Cir. 1987)). When the deliberative process privilege is at issue, the “need to describe each

withheld document . . . is particularly acute” because the privilege “is so dependent upon the

individual document and the role it plays in the administrative process.” Animal Legal Def.

Fund, Inc. v. U.S. Dep’t of Air Force,

(D.D.C. 1999) (quoting Coastal

States Gas Corp.,

). Thus, when asserting exemptions under the deliberative

process privilege, an agency “must provide in its declaration and Vaughn index precisely tailored

7 explanations for each withheld record at issue.” Nat’l Sec. Couns. v. CIA,

(D.D.C. 2013). At the very least, an agency must provide the following information for each

document at issue: “(1) the nature of the specific deliberative process involved, (2) the function

and significance of the document in that process, and (3) the nature of the decisionmaking

authority vested in the document’s author and recipient.”

at 189 (citing Senate of P.R. v.

DOJ,

, 585–86 (D.C. Cir. 1987); Arthur Andersen & Co. v. IRS,

, 257–

58 (D.C. Cir. 1982); and Coastal States Gas Corp., 617 F.2d at 867–68)).

In its renewed cross-motion and opposition, Protect Democracy does not maintain that all

the Department’s redactions to the 13 records at issue are unlawful. Dkt. 49 at 2. Instead, its

argument is a narrower one: in Protect Democracy’s view, the Vaughn index and the unredacted

potions of the 13 records suggest that some of the withheld material includes “segregable factual

and post-decisional material that HHS must disclose.”

The redactions Protect Democracy

disputes fall largely into three categories: (1) records that appear to contain factual information

about outreach activities that had been planned by the Obama Administration; (2) internal

clarifications and interpretations of final agency decisions; and (3) a sample talking point and

certain “background information” that a Department official provided to a White House staffer.

As Protect Democracy stresses, FOIA imposes an obligation on the agency to engage in

reasonable efforts to “segregate and release nonexempt information.”

(a)(8)(A)(ii)(II). To be sure, the Department’s renewed motion for summary judgment

provides greater detail than it offered in its original motion, which the Court concluded was

insufficient, see Protect Democracy I, 370 F. Supp. 3d at 169–173, and the Department’s

declarants attest that they “conducted a line-by-line review” of the documents and “[a]ll

reasonably segregable information, nonexempt information . . . has been disclosed,” see Dkt. 43-

8 1 at 3 (Decl. of Brandon Gaylord ¶ 8); Dkt. 43-2 at 3 (Suppl. Decl. of Hugh Gilmore at ¶ 8).

But, the Court need not blindly accept an agency’s conclusory assurance that it has taken

reasonable steps to segregate information if the record suggests otherwise or the Vaughn index

and declarations are not sufficiently detailed to permit the Court to meaningfully assess whether

further segregability is possible. See Democracy Forward Found. v. Ctrs. for Medicare &

Medicaid Servs., No. 18-cv-635,

, at *4–5 (D.D.C. Nov. 27, 2019). Instead,

the Court must consider whether the Department has offered sufficiently detailed declarations

and Vaughn indices, see Johnson v. Exec. Off. for U.S. Attorneys,

(D.C. Cir.

2002), which will—along with the portions of the records that the Department has not

redacted—permit the Court to engage in the type of meaningful, de novo review required under

FOIA.

With this background in mind, the Court will, in turn, address each of the three categories

of redactions that Protect Democracy contests.1

A. Factual Information About Prior Administration Plans: Documents 2a, 2b, 4, 7, 11, 15, 19, 20, 21

Protect Democracy first argues that the Department unlawfully redacted nondeliberative

factual material from nine documents. See Dkt. 43-4 at 5–6 (Doc. 2a),

at 8–9 (Doc. 2b);

at

14–20 (Doc. 4);

at 27–28 (Doc. 7);

at 37–38 (Doc. 11);

at 49–51 (Doc. 15); id. at 61

(Doc. 19); id. at 63 (Doc. 20); id. at 65–66 (Doc. 21). The common question for each of these

documents is whether factual information (e.g., schedules, financial information, contract terms)

1 Because the parties initially disputed 23 documents in their renewed motions for summary judgment, the Department’s renewed summary judgment motion assigned each document a number ranging from 1 to 23. See Dkt. 43-3 (Vaughn index); Dkt. 43-4 (Exhibits). Although the parties have since narrowed their dispute to 13 records, to avoid confusion, the Court will continue to reference each document according to the number it is assigned in the Vaughn index.

9 about outreach activities that had been planned—but not executed—by the Obama

administration, and then later became subject to reconsideration by the Trump administration,

falls within the deliberative process privilege. Protect Democracy offers two reasons why, in its

view, the answer is no. First, it argues that any information concerning the Obama

administration’s planned outreach activities was post-decisional, because those activities

represented the “final decisions” of that administration. In Protect Democracy’s view, “final

decisions made by the previous Administration cannot retroactively be characterized as

deliberative merely by virtue of the current Administration’s desire to revisit them.” Dkt. 44 at

14. Second, it argues that the information for which it seeks disclosure is factual in nature, not

deliberative; that is, it is a fact that the Obama administration planned certain outreach activities,

and it is a fact that those activities, for instance, had been planned for certain dates, cost a certain

amount of money, and involved contracts with certain terms. Id. at 14–15; Dkt. 49 at 4.

Although Protect Democracy acknowledges that opinions and deliberations are privileged if they

concerned whether to reconsider certain outreach activities, it insists that the underlying facts

about the Obama administration’s outreach plan for the 2016–2017 Open Enrollment period are,

by their nature, nondeliberative and therefore segregable.

Unsurprisingly, the Department takes a different view. It argues that the factual material

at issue is privileged because it “provides the ‘foundation’ for the agency’s ‘discussion’ of its

options” and so would reveal the “substance and structure of protected agency deliberations.”

Dkt. 43 at 11–12. The Department invokes Ancient Coin Collectors Guild v. U.S. Dep’t of State,

(D.C. Cir. 2011), for the proposition that the “legitimacy of withholding does not

turn on whether the material is purely factual in nature . . . , but rather on whether the selection or

organization of facts is part of the agency’s deliberative process” or involves an “exercise in

10 judgment.”

at 513 (citing Montrose Chemical Corp. of Cal. v. Train,

(D.C.

Cir. 1974)). Under this principle, the Department insists, the factual information at issue was

properly withheld because its “disclosure would ‘permit[] inquiry into the mental processes’ by

which the agency arrived at its decision” during the Trump administration.

at 12 (quoting

Playboy Enters., Inc. v. DOJ,

(D.C. Cir. 1982)).

Protect Democracy, in turn, counters that the information at issue more closely resembles

the factual material in Playboy Enterprises, Inc. v. DOJ,

. That case concerned a

FOIA request seeking to compel disclosure of factual material contained in a report prepared by

the Justice Department’s Office of Professional Responsibility (“OPR”). The Justice Department

argued that the facts at issue fell within the deliberative process privilege because they reflected

the “choice, weighing and analysis of facts” of the report authors.

. The D.C. Circuit

disagreed and upheld the district court’s conclusion, reached after in camera review, that the

facts contained in the OPR report were nondeliberative and therefore severable from the report’s

opinions and recommendations.

It explained that “a report does not become part of the

‘deliberative process’ . . . merely because it contains only those facts which the person making

the report thinks material;” instead, the “deliberative process privilege . . . is dependent upon the

individual document and the role it plays in the administrative process.”

The D.C. Circuit

distinguished the factual material in Playboy Enterprises from the summaries at issue in

Montrose Chemical,

, a decision that reached the opposite conclusion and that the

D.C. Circuit subsequently relied upon in Ancient Coin Collectors Guild, 654 F.3d at 513. The

difference in Montrose Chemical, the Playboy Enterprises court explained, was that the factual

summaries there were distillations of a voluminous record and were “prepared for the sole

purpose of assisting the [EPA] Administrator to make a complex decision in an adjudicatory

11 proceeding.” Playboy Enters.,

. In that context, requiring “disclosure of the

summaries would [have] result[ed] in publication of the evaluation and analysis of the

multitudinous facts made by the Administrator’s aides and in turn studied by him in making his

decision.”

Probing the factual summaries, in that context, “would be the same as probing the

decision-making process itself.”

The Court need not pause long over Protect Democracy’s first argument—that “[t]he

final decisions made by the [Obama] Administration cannot retroactively be characterized as

deliberative merely by virtue of the [Trump] Administration’s desire to revisit them,” Dkt. 44 at

14. The Department’s reply brief is categorical in describing the limited scope and nature of its

reliance on the deliberative process privilege to withhold information relating to the Obama

administration’s planned outreach: “To be clear, the Department’s argument is not that decisions

made by the [Obama] Administration remained inherently deliberative until they took effect. . . .

Rather, the Department’s argument is that factual material about those earlier decisions may be

exempt from disclosure under Exemption 5 for all of the usual reasons,” including “because it is

contained in a draft document-in-progress, or is inextricably intertwined with analysis and

opinion, or has been selected in a way that would reveal the subjects of protected deliberations.”

Dkt. 46 at 2. To this, the Department adds: “All of the material withheld on these bases was

written by the [Trump] Administration to inform its own decision-making processes.”

Because the Department’s invocation of Exemption 5 is not premised on a claim that the Obama

administration’s once-final deliberations regarding an outreach plan “retroactively” became

“deliberative” when the Trump administration decided to revisit that plan, Protect Democracy’s

first argument is non-responsive.

12 Protect Democracy’s second argument, however, is both responsive and more

convincing. The parties’ dispute over the redacted factual material resides at the intersection of

two conflicting principles. On the one hand, “[f]actual material that does not reveal the

deliberative process is not protected.” Morley v. CIA,

(D.C. Cir. 2007)

(quoting Paisley v. CIA,

(D.C. Cir. 1983)). But, on the other hand,

information that is “purely factual in nature” can, nonetheless, reveal internal agency

deliberations if it “reflects an ‘exercise of discretion and judgment calls.’” Ancient Coin

Collectors Guild,

(quoting Mapother v. DOJ,

(D.C. Cir.

1993)). The “selection or organization of facts” can reveal internal agency deliberations, for

example, when factual material is “culled from a much larger universe of facts” and “assembled

through an exercise of judgment in extracting pertinent material from a vast number of

documents for the benefit of an official called upon to take discretionary action.”

(quoting

Mapother,

). The essential question for the Court is whether segregating and

requiring the release of certain factual information will “expose [the] agency’s decisionmaking

process in such a way as to discourage candid discussion within the agency and thereby

undermine the agency’s ability to perform its functions.” Dudman Commc’ns v. Dep’t of Air

Force,

(D.C. Cir. 1987); see also Ancient Coin Collectors Guild,

.

Applying these principles in this context requires a detailed, document-by-document

assessment, informed by the Department’s declarations and Vaughn index and by the snippets of

materials left unredacted in the documents at issue. To the extent the available information is

“[in]sufficiently detailed” to assess the agency’s “claims of exemption,” in camera inspection

may be appropriate. Spirko v. U.S. Postal Serv.,

(D.C. Cir. 1998); see, e.g.,

13 Nat’l Right to Work Legal Def. & Educ. Found., Inc. v. U.S. Dep’t of Labor,

, 190–91 (D.D.C. 2011) (conducting in camera review of a meeting agenda and only

upholding the redaction of agenda items that reflected “deliberations about policy and the

personal opinions of agency staff”).

1. Document 11

Document 11 is a copy of an email chain between Randy Pate, a CMS Special Assistant,

and “counselors of the Secretary [of the Department of Health and Human Services] and the

Chief of Staff.” Dkt. 43-3 at 4 (Vaughn index). The entirety of Pate’s email is redacted, except

for the final line, which reads: “Thanks for hearing me out on this, I’m about to join the call

now.” Dkt. 43-4 at 37–38. One of the recipients of the email replies to Pate’s email with the

following: “Hi Randy, I just talked to Tim. Here is the update: They can move forward with the

blast e-mails and other free social media outreach content. A portion (but not all) of the ad

funding has been pulled back.” Dkt. 43-4 at 37.

Based solely on that reply, Protect Democracy argues that Document 11’s “expansive

redaction . . . appears to withhold information regarding the Obama Administration’s planned

‘blast emails, free social media outreach content’ and ‘ad funding’” that can be segregated and

released. Dkt 49 at 6. The Court is unpersuaded. Although the reply to Pate’s email suggests

that the topic of the email related to blast emails, free social media outreach content, and ad

funding, that is all that it suggests. By contrast, the Department’s Vaughn index explains that the

content of Pate’s email is entirely deliberative:

Withheld material consists of a CMS Special Assistant’s opinions . . . on which direction the agency should choose for the ad buys/outreach for open enrollment. Randy Pate provides higher-level officials with his views on a range of related issues, summarizes deliberative conversations with other agency officials, and suggests courses of action.

14 Dkt. 43-3 at 4 (Vaughn index). This description, which is proffered under the penalty of perjury,

see Dkt. 43-1 at 2 (Gaylord Decl. ¶ 4), is unambiguous and leaves no doubt that any factual

content is incidental to, and inextricably intertwined with, “recommendations” made “by an

agency employee” regarding “which options he [thought] should be pursued.”

Material of

that type lies at the core of the deliberative process privilege, and nothing that Protect

Democracy argues suggests otherwise. See Ancient Coin Collectors Guild,

.

The Court will, accordingly, grant the Department’s motion for summary judgment and

deny Protect Democracy’s cross-motion for summary judgment with respect to Document 11.

2. Documents 2a, 2b, 4, 7, 15

The withheld material in Documents 2a, 2b, 4, 7, and 15 consists of “summar[ies] and

discussion[s] of the financial implications of certain options regarding outreach activities.” Dkt.

43-3 at 2, 5 (Vaughn index); see also id. at 3. In Document 7, an email with the subject line

“Financial Implications of Pulling Advertising,” a “lower level” CMS employee, Laura Salerno,

sends a “draft of the summary of possible outreach discontinuation activities and their financial

implications” to Mary Wallace, the Acting Director for the CMS Office of Communications.

Dkt. 43-3 at 3 (Vaughn index). The text of the email begins, “Mary – here are the numbers,”

followed by more than a page of redacted text. Dkt. 43-4 at 27–28. Document 4 reflects that,

shortly after receiving the summary, Wallace circulated it (or a version of it) to senior

Department officials. Dkt. 43-4 at 16; see also Dkt. 43-3 at 3 (Vaughn index) (noting that the

Salerno email contained “an earlier draft of the summary of possible outreach discontinuation

activities and their financial implications withheld from Documents 2.a, 2.b, and 4”).

Referencing the summary, Wallace tells the officials, “Since I just got this – here is the info that I

plan to share back. Let me know any concerns/questions.” Dkt. 43-4 at 16. The Department

15 also redacted from Document 4 “comments and suggestions from others” regarding what

“information to include in the draft summary.” Dkt. 43-3 at 3 (Vaughn index). Then, in

Documents 2b (of which Document 2a is a partial copy) and 15, Wallace sends a revised version

of the summary to Mark Weber, the Deputy Assistant Secretary for Public Affairs/Human

Services, who passes it along to other Department officials “[p]er request.” Dkt. 43-4 at 8.

Protect Democracy seizes upon Document 7’s mention of “numbers” to argue that the

financial summary initially created by Salerno and later circulated by Wallace contains “non-

deliberative data and factual information regarding ‘numbers’ that [can] be segregated and

disclosed.” Dkt. 44 at 16. Protect Democracy argues that “the financial implications of

cancelling the Obama Administration’s final advertising decisions were predetermined at the

time those decisions were made, and thus the data reflects a rote calculation of financial

consequences, rather than an ‘exercise of judgment.’” Dkt. 49 at 5. For support, it points to

Hardy v. Bureau of Alcohol, Tobacco, Firearms & Explosives, which held that “survey results”

and “final survey data” were not protected by the deliberative process privilege,

, 171–73, 175–76 (D.D.C. 2017), and Democracy Forward Foundation, which held that,

because CMS open-enrollment “data analytics and analysis” are factual in nature, they are not

exempt unless CMS can demonstrate that the data was not segregable from otherwise exempt

material,

, at *4–5.

The Department offers two responses. First, it maintains that the information in at least

some of these documents is in draft form, and drafts are quintessentially pre-decisional and

deliberative. Dkt. 46 at 2 (citing In re Apollo Grp., Inc. Sec. Litig.,

(D.D.C.

2008)). Second, the Department argues that the redacted summary is exempt from disclosure

because the “selection or organization of facts” would reveal “an agency’s deliberative process.”

16 Dkt. 46 at 3 (quoting Ancient Coin Collectors Guild,

). Notably, the Department

does not argue—as it does for other documents—that the factual material in this set of emails is

“inextricably intertwined” with deliberative material.

As a preliminary matter, the Department is not entitled to prevail merely because certain

versions of the financial summary were “drafts.” True, draft documents are “typically

considered deliberative.” Hardy,

(citing Coastal States Gas Corp.,

). But an agency “cannot withhold” factual material “merely by stating that it is in a

draft document,” Dudman Commc’ns Corp.,

, and decisions in this Circuit have

repeatedly held that “raw facts with informational value in their own rights” are not exempt from

FOIA, even if they are included in a draft document, BuzzFeed, Inc. v. DOJ,

,

78 (D.D.C. 2019); accord Hardy,

.

That brings the Court to the heart of the parties’ disagreement. Some of the redacted

material in this set of documents—particularly redactions in Document 4—withholds agency

officials’ deliberations regarding “the language of the draft summary,” Dkt. 43-3 at 3 (Vaughn

index). That material, which reflects pre-decisional “opinions, recommendations[,] and

deliberations,” Sears, Roebuck & Co., 421 U.S. at 150, was properly withheld. Those redactions,

however, are not the focus of Protect Democracy’s challenge. Instead, Protect Democracy

presses for disclosure of the financial data that formed the basis of the participants’ deliberations,

which are factual in nature. See Democracy Forward Found.,

, at *4–5. The

question for the Court to decide with respect to this category of documents, then, is whether the

selection of information included in the financial summary or the organization or presentation of

that information would reveal the Department’s deliberative process.

17 On the present record, the Court cannot answer that question. Although the relevant

entries in the Department’s Vaughn index are an improvement over the last round of briefing,

they still lack sufficient detail to permit meaningful judicial review. In relevant respects, they

merely tell the Court that the redacted material “consists of a summary . . . of the financial

implications of certain options regarding outreach activities,” Dkt. 43-3 at 2, 5 (Vaughn index),

or “an earlier draft of the summary of possible outreach discontinuation activities and their

financial implications,”

. The documents themselves, moreover, at least suggest that the

redacted information is factual in nature. Documents 2a, 2b, and 15, for example, refer to the

redacted material as “the rest of the information you asked for,” Dkt. 43-4 at 5, 8, 49; Document

4 refers to it as “the info that I plan to share back,”

; and Document 7 says, “here are the

numbers,”

.

As explained above, factual summaries are, at times, entitled to protection under

Exemption 5. But “[p]urely factual material usually cannot be withheld . . . unless it reflects an

‘exercise of discretion and judgment calls.’” Ancient Coin Collectors Guild,

(quoting Mapother,

). Factual summaries that are “culled . . . from [a] much larger

universe of facts,” for example, may “reflect an ‘exercise of judgment as to what issues are most

relevant to the pre-decisional” deliberations.

Similarly, the “selection or organization of

facts” included in a summary may reveal internal, agency deliberations.

And, at times, even

the question posed, which can be inferred from the facts offered in response, may disclose

protected deliberations.

The problem here is that the Court cannot discern whether the factual material included in

the summaries is likely to reveal anything about the Department’s pre-decisional deliberations

regarding the termination of planned outreach activities. If the summaries, for example, list

18 every then-existing contract for planned outreach activities, the Court might conclude that they

do not “reflect[] an ‘exercise of discretion [or] judgment calls,’”

and that they, at most, reveal

a fact that the Department does not dispute—that the Trump administration sought to terminate

at least some planned outreach activity. But, on the other hand, if the summaries highlight those

outreach activities that the agency staff had selected for possible termination based on policy

priorities or other, similar factors, disclosure would likely reveal protected recommendations

made by staff and less senior agency officials to the decisionmakers.

When an “agency [has] fail[ed] to provide a sufficiently detailed explanation to enable

the . . . court to make a de novo determination of the agency’s claims of exemption, the . . . court

. . . has several options, including inspecting the documents in camera, requesting further

affidavits, or allowing the plaintiff discovery.” Spirko,

; see also

(a)(4)(B) (granting district courts discretion to conduct in camera review to determine

whether a record “shall be withheld” in whole or in part). Here, because the documents at issue

are “relatively short in length,” Dillon v. DOJ, No. 17-1716,

, at *8 (D.D.C.

Jan. 17, 2019), and few in number, and because the Court has already provided the Department

with an opportunity (to no avail) to supplement its declarations and Vaughn index, Protect

Democracy I,

, the Court will now order that the Department submit

unredacted copies of Documents 2a, 2b, 4, 7 and 15 to the Court for ex parte, in camera review.

4. Documents 19, 20, 21

Document 20 is a portion of an email from Tasha Bradley to Department officials,

including Mark Weber. Dkt. 43-4 at 63. The body of the email begins: “Below please find a list

of Open Enrollment activities planned for the next two weeks. This doesn’t include any social

media, email marketing, ads, etc. We will discuss pulling together a more robust list of items

19 tomorrow during our meeting with CMS.”

The remainder of the email, which appears to

contain a large block of text, is redacted.

Document 19 is a copy of this same email, which

Weber forwarded to others at the Department. Dkt. 43-4 at 61. In forwarding the email, he

wrote: “FYI – foundation for our discussion with CMS public affairs staff at 10 am on Open

Enrollment.”

Document 21 includes two additional emails in the same chain, reflecting

further discussions between the Deputy Director of the Office of Intergovernmental and External

Affairs, the Principal Deputy Assistant Secretary for Public Affairs, and a Special Assistant.

Dkt. 43-4 at 65. A significant portion of both emails is also redacted.

The bottom of

Document 21 includes the original email from Weber (Document 19) and the original email from

Bradley (Document 20).

at 65–66. With respect to all three documents, the Vaughn index

explains that the “[w]ithheld materials consist of planned outreach activities from the prior

administration that the new administration was in the process of reviewing and determining

whether to pursue or discontinue.” Dkt. 43-3 at 6 (Vaughn index).

Protect Democracy argues that the list of planned open enrollment activities included in

each of these three documents lies beyond the reach of Exemption 3 because it is “a

comprehensive list of data—brute facts, not an analysis—relating to final decisions made by the

Obama Administration.” Dkt. 49 at 3. The Department acknowledges that the list of planned

activities is factual in nature, but it insists that the information should be redacted nonetheless

because it provided the “‘foundation’ for the agency’s deliberative ‘discussion.’” Dkt. 46 at 4.

As a preliminary matter, the Court does not understand Protect Democracy to dispute the

redactions of the two emails that are unique to Document 21, which appear to be predominantly,

if not purely, deliberative in nature. See Dkt. 43-4 at 65. Those emails contain unredacted text

that is typical of deliberative material: “my initial reaction is that HHS/CMS;” “I’d recommend;”

20 “A second question is;” and “I think we [should] talk more about that among ourselves.”

Instead, the Court understands Protect Democracy’s challenge to focus on the same list of open

enrollment activities that is included in all three documents.

As with Documents 2a, 2b, 4, 7, and 15, the Court cannot discern from the existing

record whether the admittedly factual material contained in Documents 19, 20, and 21—a list of

“planned outreach activities from the [Obama] administration,” Dkt. 43-3 at 6 (Vaughn index)—

is purely deliberative or not readily segregable. Once again, it is possible that the compilation of

the list “reflects an ‘exercise of discretion and judgment calls,” or a process of “selection or

organization” that was “part of [the] agency’s deliberative process.” Ancient Coin Collectors

Guild,

. But the introductory clause suggests otherwise, merely characterizing

the redacted material as “a list of Open Enrollment activities planned for the next two weeks,”

excluding “social media, email marketing, ads, etc.” Dkt. 43-4 at 63. In any event, the Court

certainly cannot conclude that the list is itself deliberative based on the sparse description

contained in the Vaughn index. Nor is the Court persuaded, at least on the present record, by the

Department’s equally unilluminating contention that the list is protected under Exemption 5

because it formed “the ‘foundation’ for the agency’s ‘discussion’ of its options.” Dkt. 43 at 11;

see also Dkt. 46 at 4–5. Data on the number of automobile deaths occurring in the United States

might form the “foundation” for agency deliberations about enhanced safety requirements to

include in a proposed rule. But the unfiltered data, standing alone, would reveal nothing about

those deliberations. Beyond what is already known—that is, that a debate occurred—the same is

at least arguably true here. And, finally, none of the available information concerning

Documents 19, 20, and 21 suggests that the redacted list of open enrollment activities is

21 “inextricably intertwined” with deliberative content—to the contrary, the list appears to stand

alone, even if it was then used in subsequent deliberations.

For these reasons, the Court is skeptical that the redacted list of planned Open Enrollment

activities is protected by Exemption 5. But because the Court will already conduct an in camera

inspection of Documents 2a, 2b, 4, 7, and 15, and because adding a single, further paragraph to

that inspection will neither materially increase the burden on judicial resources nor hinder the

prompt resolution of this case, the Court will order the Department to submit unredacted copies

of Documents 19, 20, and 21 to the Court for ex parte, in camera review.

B. Internal Clarifications of Final Agency Decisions: Documents 5, 6, and 23

The second category of redactions that Protect Democracy challenges consists of emails

in which agency officials sought to clarify or interpret the administration’s final decision

canceling select healthcare.gov advertisements. See Dkt. 43-4 at 22–23 (Doc. 5); id. at 25 (Doc.

6); id. at 70–72 (Doc. 23).

First, Document 5 is comprised of two emails sent by Mary Wallace to senior officials of

CMS and the Department. Dkt. 43-4 at 22–23. According to the Department’s Vaughn index,

“[t]he withheld material consists of requests for clarification on what discontinuation activities

should be pursued if certain criteria are met. These emails are part of a deliberation over

planned, but not yet final, actions regarding outreach activities.” Dkt. 43-3 at 3 (Vaughn index).

In the unredacted portions of the email, Wallace tells one senior official that she “ha[s] two

questions based on [his] note.” Dkt. 43-4 at 23. The questions that follow are redacted. Id.

Wallace then asks the broader group on the email chain: “Can we get confirmation from

everyone on here of what you want us to do. I just want to be really clear.” Id. Significantly,

the Department has left unredacted the portion of the email chain that sets forth the final agency

22 decision. After posing her questions, at 8:45 p.m. on January 26, 2017, Mary Wallace writes at

10:16 p.m. that same night: “Just to close the loop, based on our call we will move forward with

the low cost tactics (emails, social and autodials) and focus on pulling back ads if we can get

savings primarily, but if for certain things we can’t—then we will let them run.” Id. at 22.

Second, Document 6 is a copy of an email chain between Mary Wallace and Patrick

Conway, the Acting CMS Administrator. Dkt. 43-4 at 25. Wallace’s email is redacted except

for the last line, in which she writes: “Let me know if anyone wants to discuss.” Id. Conway’s

reply begins, “To confirm,” and the rest of his email is then redacted. Id. The Department’s

Vaughn index attests that the withheld material consists of a request from Wallace for

“clarification on what discontinuation activities should be pursued if certain criteria are met” and

Wallace’s and Conway’s “interpretations of the instructions given.” Dkt. 43-3 at 3 (Vaughn

index).

Finally, Document 23 consists of an email chain between Wallace and senior CMS

officials, which includes the same (redacted) email in which Wallace poses her two questions,

and a later email from Karen Jackson, the Acting Chief Operating Officer of CMS, which is

redacted in its entirety. Dkt. 43-4 at 70–72. According to the Vaughn index, the Department has

redacted portions of Wallace’s emails in which she requests “clarification on what

discontinuation activities should be pursued if certain criteria are met and provid[es] her

interpretations of the instructions given for comment by senior officials.” Dkt. 43-3 at 7

(Vaughn index).

Protect Democracy argues that the redacted material in these emails should be released

because the exchanges occurred “after the decision [to cancel certain advertisements] was made

and the Trump administration ‘settled upon’ a policy on advertisement cancellation.” Dkt. 49 at

23 6 (quoting Machado Amadis v. DOJ,

(D.D.C. 2019)). The Department, in

contrast, takes issue with Protect Democracy’s characterization of these conversations as post-

deliberative and, instead, argues that agency officials were still “deliberating over the nature of

the Department’s decisions” by “asking questions about [them] and offering tentative

interpretations.” Dkt. 46 at 6.

The redactions to Documents 5, 6 and 23 present a close question. On the one hand,

“documents interpreting or explaining existing [final] policy do not fall within Exemption 5.”

Gov’t Accountability Project v. U.S. Nuclear Regul. Comm’n, No. 86–1976,

,

at *2 (D.D.C. July 2, 1993). It is far from clear, however, whether the emails at issue concern (1)

a final agency policy; (2) a policy on the verge of finalization; or (3) post-decision deliberations

about matters that were not resolved by an earlier, final decision. In describing Document 5, the

Vaughn index asserts that the emails were “part of deliberations over planned, but not yet final,

actions regarding outreach activities.” Dkt. 43-3 at 3 (Vaughn index). Those emails, in turn,

span a period from 8:45 p.m. on January 26, 2017, until 10:16 p.m. that evening, when Wallace

“close[s] the loop” by summarizing the agency’s plan to “move forward” with certain cuts to the

outreach program. Dkt. 43-4 at 22–23. Document 6 contains redactions from an email exchange

between Wallace, Conway, and others earlier that day, at 10:43 a.m.

. The Vaughn

index describes that email as “requesting clarification on what discontinuation activities should

be pursued if certain criteria are met,” and then notes that the language from “Wallace’s email

also appears in Document 3.” Dkt. 43-3 at 3 (Vaughn index). The index, in turn, provides a

more detailed description of the redacted material with respect to Document 3, noting that the

material is from an email exchange between Wallace, Jackson, and Lisa Watkins, a Senior

Advisor in the Office of the Administrator.

. The entry goes on to explain that “Watkins

24 [was] requesting more information about which outreach activities the agency [was] planning to

cancel and requesting a discussion about those planned cancellations.”

Notably, the Vaughn

index reports:

Although some of the questions and responses appear to represent final decisions—e.g., “We are doing X”—they are merely interim understandings and not final decisions. The agency took a somewhat different course than is described here. It is therefore clear that these questions and answers by high- level officials are part of the deliberative process by which the agency reached that different decision.

Although the timeline for these emails suggests that the redacted materials relate to

discussions occurring just before a final decision was reached, that inference is too speculative to

carry the day, particularly given the Court’s need to review other records in camera. Three

obstacles, in particular, prevent the Court from granting summary judgment for either party at

this time. First, the Department’s Vaughn index does not clarify whether the answers Wallace

sought had already been considered and settled upon by the agency or whether they, instead,

informed the decision-making process. See Nat’l Sec. Couns.,

. Second,

the Vaughn index does not clarify the “nature of the decisionmaking authority vested in the . . .

author[s] and recipient[s]” of the redacted material.

Were the senior officials whose views

Wallace solicited, for example, vested with decisionmaking authority over the matters she

raised? If so, then their interpretations and clarifications—if final—might themselves constitute

or reflect final decisions. See Petrol. Info. Corp.,

(identifying the key inquiry

as whether material was “prepared in order to assist an agency decisionmaker in arriving at [a]

decision, rather than to support a decision already made” (quotation marks omitted)). Finally,

there is at least some evidence that a final decision of some sort was made before Wallace posed

her questions and the related email communications were sent. Indeed, Wallace’s email was sent

25 in response to an email from Randy Pate, Dkt. 43-4 at 71–72, which copied Tim Clark, the White

House liaison for the Department, id. at 55, stating in unequivocal terms: “The free email blasts,

social media etc are approved to go forward,” and “[t]he ad buys that cannot be refunded at this

point are ok to go,” id. at 71 (emphasis added). The fact that Pate copies the White House

liaison “to ensure” that Pate has not “missed anything,” id., at a minimum suggests that the

White House was directly involved and had signed off on at least a portion of the plan. To the

extent the redacted portions of Documents 5, 6, and 23 relate to that (partial) final decision—if it

was, in fact, final—some doubt may be cast on the Department’s invocation of Exemption 5.

The Court will, accordingly, require the Department to submit Documents 5, 6, and 23 to

the Court for ex parte, in camera review. In addition, because the unredacted documents may

themselves fail to reveal the needed context to permit the Court to resolve the cross-motions for

summary judgment, the Court will also require the Department to submit a supplemental

declaration addressing the questions the Court has raised.

C. Talking Points: Document 17a

Finally, Protect Democracy maintains that the Department unlawfully withheld

responsive, nondeliberative information in an email from Clark to a White House official

(“Katy”). See Dkt. 43-4 at 55 (Doc. 17a). The body of the email is fully redacted. Id. The

corresponding entry of the Vaughn index describes the withheld material as “background

information” and a “sample talking point to inform WH decisionmaking on how to present the

Administration’s position on ACA Open Enrollment Ads.” Dkt. 43-3 at 5 (Vaughn index).

According to Protect Democracy, both the “background information” and “talking points” fall

beyond the scope of Exemption 5 because they are nondeliberative and post-decisional. Dkt. 49

at 7. First, Protect Democracy argues that the Department has essentially conceded the point by

26 distinguishing in its Vaughn index between a “draft of th[e] email,” Dkt. 43-3 at 5 (Vaughn

index), which Protect Democracy no longer seeks, and “the final version,” id., which it does.

Dkt. 49 at 7. Protect Democracy explains, because “these talking points are final, they are

obviously not deliberative.” Id. Second, it argues that, at a minimum, “any factual ‘background

information’ about the Trump administration’s final decision to cancel portions of existing ACA

outreach commitments [was] post-decisional and should be produced.” Id.

The Department sees things differently. It points out that Protect Democracy’s argument

that the sample talking point “represents a final decision by the Department simply controverts

the representation in the Vaughn index that it was a ‘sample’ prepared ‘to inform [White House]

decisionmaking on how to present the Administration’s position.’” Dkt. 46 at 6. The email is

protected, in the Department’s view, because it “contains the agency’s suggestion of what the

White House should say.” Dkt 43 at 11; Dkt. 46 at 6–7.

The Department has carried its burden of demonstrating that the sample talking point that

Clark provided to the White House is protected under Exemption 5. The Vaughn index explains

that it was offered as a “sample . . . to inform” White House “decisionmaking on how to present

the Administration’s position.” Dkt. 43-3 at 5 (Vaughn index). As such, the talking point was

not final; it did not come from decisionmakers but, rather, was offered to decisionmakers to

“inform” the “decisionmaking” process. In short, the talking point was sent to advise the White

House on its public messaging. That is a quintessentially deliberative communication. See, e.g.,

Am. Ctr. for Law & Justice v. DOJ,

, 172–74 (D.D.C. 2018). The fact that

Clark sent the “final version” of the email does not mean that the email constituted the Trump

administration’s final decision on messaging. To the contrary, much of the advice provided to

inform internal, government deliberations comes in the form of an email or memorandum that

27 was preceded by prior drafts. An email may become “final”—as opposed to a “draft”—when the

author hits send. But that does not mean that the advice contained in the email becomes the final

views of the agency when the author stops editing and sends it to her supervisor or colleagues.

For that reason, Protect Democracy’s invocation of Judicial Watch, Inc. v. U.S. Department of

State falls flat: in Judicial Watch, the disputed communication at issue “convey[ed] the final

result of an earlier discussion about how to respond to a past inquiry.”

(D.D.C. 2018). Here, in contrast, the Department represents that the email was merely offered to

“inform” White House “decisionmaking.” Dkt. 43-4 at 5 (Vaughn index).

The “background information” contained in the email, however, presents a closer

question, which the Court cannot resolve on the present record. The problem is that the email is

redacted in its entirety, Dkt. 43-4 at 55, leaving the Court with no clues about the nature of the

“background information,” and the Vaughn index is equally opaque, merely asserting that the

email contained “background information,” Dkt. 43-3 at 5 (Vaughn index). Without any

evidence regarding the nature of the “background information,” the Court cannot assess whether

it consists of unadorned, publicly available facts; a description of the Department’s internal

deliberations; Clark’s assessment of the political landscape; or information “‘culled’ . . . from a

much larger universe of facts” thereby reflecting Clark’s “judgment calls” about the key points to

inform the White House’s communications strategy. Ancient Coin Collectors Guild,

.

The Court will, accordingly, require the Department to submit Document 17a to the

Court for ex parte, in camera review.

28 CONCLUSION

For the foregoing reasons, the Court GRANTS in part and DENIES in part, without

prejudice, the Department’s motion for summary judgment. Specifically, the Court GRANTS

the Department’s motion for summary judgment with respect to Document 11 but DENIES the

Department’s motion without prejudice with respect to the remaining documents. The Court

further DENIES without prejudice Protect Democracy’s cross-motion for summary judgment.

The Court further ORDERS that the Department shall, on or before September 27, 2021, submit

unredacted versions of Documents 2a, 2b, 4, 5, 6, 7, 15, 17a, 19, 20, 21, and 23 to the Court for

ex parte, in camera review, as well as a supplemental declaration concerning Documents 5, 6,

and 23. After reviewing these materials, the Court will determine the appropriate next steps for

bringing this case to conclusion.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: September 13, 2021

29