UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN OVERSIGHT, INC.,

Plaintiff, Civ. Action No. 17-827(EGS/DAR) v.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,

Defendants.

MEMORANDUM OPINION

This case arises out of a Freedom of Information Act

(“FOIA”) suit brought by Plaintiff American Oversight, Inc.

(“American Oversight”) against Defendants U.S. Department of

Health and Human Services (“HHS”) and Office of Management and

Budget (“OMB”) (collectively, the “Agencies”) in which American

Oversight seeks documents related healthcare reform legislation

in 2017. See Compl., ECF No. 1. 1 Some of the documents relevant

to this FOIA request include the Agencies’ communications with

the U.S. House of Representatives Committee on Ways and Means,

(“Intervenor” or “Committee”), which has intervened in this case

to object to the production of those documents. See Intervenors’

Mot. to Intervene, ECF No. 19.

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF header page number, not the page number of the filed document. 1 American Oversight and the Agencies previously filed cross

motions for summary judgment, primarily disputing whether

Exception Five to FOIA production applied. Am. Oversight, Inc.

v. U.S. Dep't of Health & Hum. Servs., No. CV 17-827(EGS/DAR),

, at *1 (D.D.C. May 27, 2022), rev'd and remanded

sub nom. Am. Oversight v. United States Dep't of Health & Hum.

Servs.,

(D.C. Cir. 2024). The Court granted in

part the Agencies’ motion, see id.; and the U.S. Court of

Appeals for the District of Columbia Circuit (“D.C. Circuit”)

reversed the decision and ordered the Agencies to produce the

documents at issue, see Am. Oversight v. United States Dep't of

Health & Hum. Servs.,

(D.C. Cir. 2024).

In the Court’s prior Memorandum Opinion, it did not reach the

Committee’s argument that certain communications between the

Agencies and Congress were not subject to FOIA because they were

congressionally controlled. Am. Oversight,

, at

*1 (finding the Committee’s Motion moot). Now that the Agencies

have been ordered to produce the previously disputed documents,

the Committee has renewed its request for summary judgment in

its favor with respect to the asserted congressional documents.

See Intervenor’s Mot. for Summ. J. (“Intervenor Mot.”), ECF No.

96. American Oversight filed its cross Motion for Summary

Judgment arguing that the documents are subject to disclosure,

see Pl.’s Mem. of Points & Authorities in Support of Pl.’s

2 Cross-Mot. for Summ. J. & in Opp’n to Def.-Intervenor’s Mot. for

Summ. J. (“Pl.’s Mot. & Opp’n”), ECF No. 101; 2 and the Agencies

also filed an Opposition to the Committee’s Motion for Summary

Judgment. See Def.’s Resp. to Intervenor’s Mot. for Summ. J.

(“Agency Resp.”), ECF No. 102. Briefing on these renewed motions

is now complete and they are ripe for the Court’s review.

Upon careful consideration of the Motions, Oppositions

thereto, Replies, the entire record, and for the reasons stated

below, Intervenor’s Motion is DENIED and American Oversight’s

Motion is GRANTED.

I. Background

A. Factual Background

1. Underlying FOIA Case

This case arises out of two FOIA requests that American

Oversight submitted to HHS and OMB in 2017 seeking

communications between the Agencies and Congress related to

health care reform legislation, the American Health Care Act

(“ACHA”). See Pl.’s Mot. & Opp’n, ECF No. 101 at 7-8; Intervenor

Mot., ECF No. 96 at 7-8; Agency Resp., ECF No. 102 at 5.

2 American Oversight’s Opposition to Intervenor’s Motion for Summary Judgment and Cross-Motion for Summary Judgment at Docket Number 100-1 is identical to its Motion and Opposition at Docket Number 101. The Court will refer to Docket Number 100-1 for ease of reference. Similarly, the Court will refer to Docket Number 105 for the Committee’s Opposition and Reply, which is the same as its filing at Docket Number 106. 3 American Oversight submitted identical requests to HHS and OMB

on March 15, 2017 and March 21, 2017, respectively, seeking the

following documents:

(1) All communications, meeting notices, meeting agendas, informational material, draft legislation, talking points, or other materials exchanged between OMB and any members of Congress or congressional staff relating to health care reform.

(2) All calendar entries for the Director, any political or SES appointees in the Director’s office, and the Acting Head of Legislative Affairs, or anyone maintaining calendars on behalf of these individuals, relating to health care reform. For calendar entries created in Outlook or similar programs, the documents should be produced in “memo” form to include all invitees, any notes, and all attachments.

Intervenor Mot., ECF No. 96 at 7-8 (citing Compl. Exs. A-B, ECF

No. 1-1, 1-2).

When neither OMB nor HHS responded to American Oversight’s

requests, it filed suit on May 4, 2017. See Compl., ECF No. 1.

The Court ordered the Agencies to review and process responsive

records on a rolling basis. See Minute Order (May 10, 2017).

According to the parties’ representations, the Court ordered HHS

to review and process approximately 11,000 pages of records and

for OMB to review and process approximately 2,348 pages of

records. See Intervenor Mot., ECF No. 96 at 8-9. Ultimately, the

Agencies produced 658 records from OMB and 5,384 pages of

records from HHS, which comprised approximately 295 records,

4 including those with attachments. Pl.’s Mot. & Opp’n, ECF No.

101 at 8. These documents “were heavily redacted under [FOIA]

Exemption 5.”

(citing Creighton Decl., ECF No. 30-2, Exs. 3-

8).

2. Communications with Congress

Included among the documents that the Agencies produced to

American Oversight were four partially redacted email chains

between either HHS or OMB and staffers on the Committee on Ways

and Means. 3 See Intervenor Mot., ECF No. 96 at 9; Pl.’s Mot. &

Opp’n, ECF No. 101 at 8-10. One of the documents was from OMB,

see Intervenor Mot., ECF No. 96 at 9 (citing Fromm Decl. Ex. A,

OMB-American Oversight-000988 to 0010292); and the other three

documents were from HHS, see

(citing Fromm Decl. Exs. B-D,

HHS—Sept 2017—01621 to 01623; HHS—Sept 2017—01624 to 01627; HHS—

Sept 2017—01628 to 01635). 4

3 The parties do not dispute the basic facts regarding these exchanges such as who sent what email, where the individuals who sent the emails worked and in what capacity, when the Legend was attached, and when other documents were attached. See generally Pl.’s Statement of Material Facts as to Which there is No Genuine Issue in Support of Mot. for Summ. J. & Counter- Statement of Material Fact (“Pl.’s CSMF”), ECF No. 100-4; Def.’s Counter-Statement of Material Facts Not in Dispute (“Defs.’ CSMF”), ECF No. 102-1. 4 On October 18, 2024, the parties filed a joint stipulation

informing the Court that while the Agencies were reprocessing documents for production following the D.C. Circuit’s ruling, they found another record that was similar to the other HHS email chains but included one additional email. See Joint Stipulation, ECF No. 97. The parties stipulated that “the Court’s forthcoming decision on the Committee’s motion for 5 The first document (“Document 1”) is an email chain between

Emily Murry (“Ms. Murry”), a Committee staffer, and Joseph

Grogan (“Mr. Grogan”), then-Associate Director of Health

Programs at OMB. See Ex. A to Fromm Decl., ECF No. 62-2 at 5-47

(depicting OMB-American oversight 000988 to 001029). Mr. Gorgan

initiated this email conversation to Ms. Murry by writing in the

first email “Emily, could we speak today? I have a policy issue

I need to run by you.” See Intervenor Mot., ECF No. 96 at 9;

Pl.’s Mot. & Opp’n, ECF No. 101 at 9. There are four emails

included as part of this chain. Pl.’s Mot. & Opp’n, ECF No. 101

at 9. In the fourth email, Ms. Murry wrote “[h]ere are three

documents to help fill the ‘white space.’ I am happy to set up a

call with the experts on my team to go through specific items /

provide more information.”

(citing Ex. A to Fromm Decl., ECF

No. 62-2 at 5-47). Ms. Murry attached a “Legend” to that fourth

email as well as the documents that were referenced. See Ex. A

to Fromm Decl., ECF No. 62-2 at 5-47. The Legend said:

This document and any related documents, notes, draft and final legislation, recommendations, reports, or other materials generated by the Members or staff of the Committee on Ways and Means are records of the Committee, remain subject to the Committee’s control, and are entrusted to your agency only for use in handling this matter. Any such documents created or compiled by an agency in connection with any response to this Committee

summary judgment and Plaintiff’s cross-motion for summary judgment will apply to the new document.” Id. at 2. 6 document or any related Committee communications, including but not limited to any replies to the Committee, are also records of the Committee and remain subject to the Committee’s control. Accordingly, the aforementioned documents are not “agency records” for purposes of the Freedom of Information Act or other law.

Intervenor Mot., ECF No. 96 at 10 (citing Statement of Facts

(“SOF”), ECF No. 96-1 ¶ 4). According to Intervenors, “[t]he

Legend was not automatically generated.” Id. (citing Fromm.

Decl., ECF No. 96-2 ¶ 10). “Rather, the Committee has authorized

staffers to include the footer when deemed appropriate, and they

manually pasted the Legend into emails to do so.” Id. American

Oversight points out that “the Committee has proffered no

details on that authorization (such as who specifically issued

it, when, and with what guidance or instructions) nor how it was

applied to the Contested Records.” Pl.’s Mot. & Opp’n, ECF No.

101 at 10.

The second document (“Document 2”) consists of seven email

communications between Sarah Arbes (“Ms. Arbes”), a then-

employee of HHS, Stephanie Parks (“Ms. Parks”), a then-Committee

staffer, and Adam Buckalew (“Mr. Buckalew”), unidentified

affiliation, that cc’d Ms. Murry and Paul Edattel (unidentified

affiliation). See Ex. B to Fromm Decl., ECF No. 62-2 at 48-51

(depicting HHS—Sept 2017—01621 to 01623). The conversation began

on March 24, 2017 and lasted through April 1, 2017. See id.

7 “These emails discussed state and federal health care plans.”

Pl.’s Mot. & Opp’n, ECF No. 101 at 9 (citing Ex. B to Fromm

Decl., ECF No. 62-2 at 48-51). Ms. Parks sent two of the emails,

one on March 30, 2017 and the other on April 1, 2017. See Ex. B

to Fromm Decl., ECF No. 62-2 at 48-51. She attached the Legend

to both emails. See id.

The third document (“Document 3”) is the same as Document

2, “with the addition of two email communications from Adam

Buckalew and Ms. Arbes replying to Mr. Buckalew.” Pl.’s Mot. &

Opp’n, ECF No. 101 at 9; see also Ex. C to Fromm Decl., ECF No.

62-2 at 52-56 (depicting HHS—Sept 2017—01624 to 01627). There

are no additional Legends on this document besides the two

included on Document 2.

The fourth document (“Document 4”) is also the same as

Document 2, but it lacks the final two emails between Ms. Arbes

and Ms. Parkes. Ex. B to Fromm Decl., ECF No. 62-2 at 57-65

(depicting HHS—Sept 2017—01628 to 01635). There is only one

Legend included on this document. See id. This record includes

an unredacted attachment with state-by-state data. See id.

According to the Agencies, “OMB and HHS used these records,

as they did many of the other records responsive to the FOIA

request, for Executive Branch purposes.” Agency Resp., ECF No.

102 at 7. Specifically, OMB “relied on the informal channel of

email communications to enable its officials and staff to

8 receive information from Congress that was used to advise the

President about health care reform.” Id. (quoting Slemrod Dec.,

ECF No. 25-3 ¶ 10). With respect to the ACHA, “OMB solicited

information from Congressional personnel regarding the status of

the ACHA throughout the drafting and debate process, with an

understanding that some of the information would ultimately

become a part of a [Statement of Administration Policy

(“SAP”)]”, which is the OMB’s means to express its final

position on legislation. Id. (quoting Slemrod Decl., ECF No. 25-

3 ¶ 13. As for HHS, “the communications . . . informed HHS’

decision-making about potential administrative initiatives”

including “identify[ing] and evaluat[ing] potential rulemakings

and operational changes that might become necessary if a bill

were to pass[.]” Id. (quoting Arbes Decl., ECF No. 25-6 ¶ 18)

(alterations in original). Moreover, the communications “helped

HHS prioritize the potential implementation issues presented by

draft legislation.” Id. (quoting Arbes Decl., ECF No. 25-6 ¶ 18)

(alterations in original). The Agencies have described the

records at issue as contributing to their deliberations about

“whether to advise the President to ultimately sign or veto the

legislation.” Id. (quoting Supp’l OMB Vaughn Index at p. 12).

After the Agencies produced these documents to American

Oversight, the Committee filed a Motion to Intervene on

September 15, 2017 so that it could argue that the documents are

9 congressional records and not subject to FOIA. See Intervenor’s

Mot. to Intervene, ECF No. 19. The Court granted the Committee’s

request to intervene. See Minute Order (Sept. 26, 2017).

B. Procedural Background

The Agencies and Intervenor filed separate Motions for

Summary Judgment on September 26, 2017. See Def.’s MSJ, ECF No.

25-1; Intervenor’s MSJ, ECF No. 27. American Oversight filed a

Cross-Motion for Summary Judgment and Opposition to both Motions

on October 16, 2017. See Pl.’s XMSJ, ECF No. 30. Pursuant to

Local Civil Rule 72.2, this Court referred the cross motions to

a Magistrate Judge for a Report and Recommendation, and the case

was randomly assigned to Magistrate Judge Deborah A. Robinson.

See Minute Order (Mar. 8, 2018). 5 Magistrate Judge Robinson

issued a Report and Recommendation in which she recommended that

the Court grant in part and deny in part the Agencies’ Motion

for Summary Judgment, grant the Committee’s Motion for Summary

Judgment, and deny American Oversight’s Cross-Motion for Summary

Judgment. See R. & R., ECF No. 49. 6 In relevant part, the

5 The referral to Magistrate Judge Robinson was terminated on January 16, 2019. 6 Magistrate Judge Robinson issued another Report and

Recommendation, see R. & R., ECF No. 48, with respect to American Oversight’s Motion for Judgment on the Pleadings, and she addressed other disputes in her Report and Recommendation on the cross-motions for summary judgment. The Court only mentions the portions of this procedural background relevant to the instant dispute. 10 Magistrate Judge recommended that the Court conclude that the

documents at issue here are congressional records and therefore

not subject to FOIA disclosure requirements. See id. at 9-14.

American Oversight and the Agencies raised several objections to

the Report and Recommendation, to which the Committee responded.

See Am. Oversight,

, at *4 (discussing and citing

objections and responses). On May 22, 2022, the Court issued a

Memorandum Opinion and Order which, inter alia, adopted in part

and rejected in part the Magistrate Judge’s Report and

Recommendation. See id. at *20. Among other rulings, the Court

adopted the Magistrate Judge’s recommendation to grant the

Agencies’ Motion for Summary Judgment “as to the adequacy of its

search and the validity of Exemption 5 for the records at issue”

and denied as moot the Magistrate Judge’s recommendation to

grant the Committee’s Motion for Summary Judgment. Id.

American Oversight appealed to the D.C. Circuit. See Notice

of Appeal, ECF No. 86. On May 17, 2024, the D.C. Circuit issued

an opinion in which it reversed the Court’s conclusion that

Exemption 5 applied to communications between the Agencies and

Committee and that HHS’s search for documents was inadequate.

See Am. Oversight,

. The D.C. Circuit noted that

the Court had denied the Committee’s Motion for Summary Judgment

with respect to the documents at issue here as moot when it

ruled that Exemption 5 applied and shielded those documents from

11 disclosure. See

at 919 n.3. Of this issue, the D.C. Circuit

said “[w]e express no view on the merits of any such challenge.”

The D.C. Circuit remanded the case back to this Court for

further proceedings. See

.

On remand, the parties sought, and the Court granted, a

briefing schedule on renewed motions for summary judgment. See

Mot. for Briefing Schedule, ECF No. 94; Minute Order (Sept. 6,

2024). The Committee filed its renewed Motion for Summary

Judgment on October 1, 2024. See Intervenor Mot., ECF No. 96.

American Oversight filed its Cross-Motion for Summary Judgment

and Opposition to Intervenor’s Motion for Summary Judgment on

November 15, 2024. See Pl.’s Mot. & Opp’n, ECF No. 100-1; Pl.’s

Mot. & Opp’n, ECF No. 101. The Agencies filed their Opposition

to Intervenor’s Motion for Summary Judgment on the same day. See

Agency Resp., ECF No. 102. The Committee filed its Opposition to

American Oversight’s Cross-Motion for Summary Judgment and Reply

in Support of its Motion for Summary Judgment on December 13,

2024. See Intervenor’s Reply Mem. in Supp. of Mot. for Summ. J.

& Opp’n to Pl.’s Cross-Mot. for Summ. J. (“Intervenor Opp’n &

Reply”)., ECF No. 105; Intervenor’s Reply Mem. in Supp. of Mot.

for Summ. J. & Opp’n to Pl.’s Cross-Mot. for Summ. J.

(“Intervenor Opp’n & Reply”)., ECF No. 106. American Oversight

filed its Reply on January 10, 2025. See Pl.’s Reply Mem. in

Supp. of Pl.’s Cross-Mot. for Summ. J. (“Pl.’s Reply), ECF No.

12 107. Briefing is complete and the renewed issue is now ripe for

the Court to consider.

II. Legal Standard

A. Summary Judgment

Federal Rule of Civil Procedure 56 provides that summary

judgment motions must be granted if “there is no genuine dispute

as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.

Liberty Lobby, Inc.,

(1986). The moving party

bears the initial burden “of informing the district court of the

basis for its motion, and identifying those portions of ‘the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett,

(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be

discharged by ‘showing’ . . . that there is an absence of

evidence to support the nonmoving party’s case.” Celotex,

.

In evaluating a summary judgment motion, “[t]he evidence of

the non-movant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Liberty Lobby,

(quoting Adickes v. S. H. Kress & Co.,

(1970)). Summary judgment turns on “whether the evidence

13 presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law.”

. “[I]f the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party”–and thus a “genuine” dispute over a material fact exists–

then summary judgment is not available.

.

For purposes of summary judgment, materiality is determined

by the substantive law of the action.

Accordingly, the

substantive law identifies “which facts are critical and which

facts are irrelevant,” and “[o]nly disputes over facts that

might affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment.”

Similarly, the applicable substantive evidentiary standards of

the action guide “whether a given factual dispute requires

submission to a jury.”

. The Court’s role at the

summary judgment stage “is not . . . to weigh the evidence and

determine the truth of the matter but to determine whether there

is a genuine issue for trial.”

.

B. FOIA

FOIA is based on the recognition that an informed citizenry

is “vital to the functioning of a democratic society, needed to

check against corruption and to hold the governors accountable

to the governed.” NLRB v. Robbins Tire & Rubber Co.,

(1978). It was enacted to “pierce the veil of

14 administrative secrecy and to open agency action to the light of

public scrutiny,” and it favors “full agency disclosure.” Dep’t

of the Air Force v. Rose,

, 360–61 (1976) (quoting

Rose v. Dep’t of the Air Force,

(2d Cir.

1974)). FOIA cases are usually resolved on motions for summary

judgment. Brayton v. Office of the U.S. Trade Rep.,

(D.C. Cir. 2011). The agency has the burden of

justifying its response to the FOIA request it received, and the

court reviews its response de novo.

(a)(4)(B).

III. Analysis

The pending dispute in this case is whether five sets of

email communications and attachments are “agency” records and

therefore subject to disclosure under FOIA, or “congressional”

records and accordingly shielded from the public. American

Oversight, the Agencies, and the Committee take varying views on

what test should apply to make such a determination, how the

test should apply, and the outcome of the test. In addition to

arguing that their view is the correct approach, all parties

argue that respect for the separation of powers requires their

requested result. With the backdrop of this essential principle,

as well as keeping in mind the purpose of FOIA to provide for

public access to information about the government, the Court

addresses the merits of the issue.

15 A. Applicable Test

1. Precedent

“To qualify as an ‘agency record’ subject to FOIA

disclosure rules, ‘the agency must ‘either create or obtain’ the

requested materials,’ and ‘the agency must be in control of

[them] at the time the FOIA request is made.” Burka v. Dep’t of

Health & Human Servs.,

, 515 (D.C. Cir. 1996)

(quoting Dep’t of Justice v. Tax Analysts,

(1989) (quoting Forsham v. Harris,

(1980)));

see also Am. Civ. Liberties Union v. Central Intelligence Agency

(“ACLU”),

(D.C. Cir. 2016). Here, the first

part of the test, whether the Agencies created or lawfully

obtained the requested material, is clearly satisfied and

undisputed. See Pl.’s Mot. & Opp’n, ECF No. 100-1 at 14-15;

Intervenor’s Combined reply to Pl.’s Counter-Statement of

Disputed Facts & Counter-Statement of Material Facts

(“Intervenor’s CSMF”), ECF No. 105-1 at 4. The second prong is,

however, highly disputed.

The D.C. Circuit typically employs a four-factor test to

determine whether the agency is in control of the relevant

documents at the time of the FOIA request. See Burka, 87 F.3d at

515. 7 These four factors are “‘(1) the intent of the document’s

7 In 1988, the D.C. Circuit applied this four-factor test in Tax Analysts that had previously been articulated by the Eleventh 16 creator to retain or relinquish control over the records; (2)

the ability of the agency to use and dispose of the record as it

sees fit; (3) the extent to which agency personnel have read or

relied upon the document; and (4) the degree to which the

document was integrated into the agency’s record system or

file.”’ Id. (quoting Tax Analysts, 845 F.2d at 1069).

The D.C. Circuit has also held, however, that a truncated

test applies in some cases in which “special policy

considerations . . . counsel in favor of according due

deference” to a governmental entity not subject to FOIA. See

ACLU,

(quoting Judicial Watch, Inc. v. U.S.

Secret Service (“Judicial Watch”),

(D.C. Cir.

2013)). In such a situation, whether a document is an “agency

record” subject to FOIA ‘“turns on whether Congress manifested a

clear intent to control the document.”’

at 662-63 (quoting

Judicial Watch,

(quoting United We Stand Am.,

Inc. v. I.R.S. (“United We Stand”),

(D.C. Cir.

2004))). This modified analysis ‘“renders the first two factors

of the standard test effectively dispositive.”’

(quoting

United We Stand,

).

Circuit. See Tax Analysts, 845 F.2d at 1069 (citing Lindsey v. Bureau of Prisons,

(11th Cir. 1984)). The Supreme Court affirmed the D.C. Circuit. See U.S. Dep’t of Justice v. Tax Analysts,

(1989). 17 The D.C. Circuit has rooted this exception to the ordinary

test in a string of cases dating back to the 1970s: United We

Stand,

(D.C. Cir. 2004); Paisley v. C.I.A.,

(D.C. Cir. 1983), opinion vacated in part,

(D.C. Cir. 1984); Holy Spirit Ass’n for the Unification of

World Christianity v. C.I.A. (“Holy Spirit”),

(D.C. Cir. 1980), vacated in part sub nom. C.I.A. v. Holy Spirit

Ass’n of the Unification of World Christianity,

(1982); and Goland v. CIA,

(D.C. Cir. 1978).

United We Stand is the only of these cases to occur after the

Burka four-factor test was announced. See United We Stand,

(“Until now we have had no occasion to consider the

applicability of the four-factor analysis in the congressional

context.”). Paisley and Holy Spirit used a test that the D.C.

Circuit had pronounced in Goland which stated “[w]hether a

congressionally generated document has become an agency record .

. . depends on whether under all the facts of the case the

document has passed from the control of Congress and become

property subject to the free disposition of the agency with

which the document resides.” Goland,

. Paisley

and Holy Spirit interpreted the Goland test to consider “(1) the

circumstances attending the document's creation, and (2) the

conditions under which it was transferred to the agency.”

Paisley,

(citing Holy Spirit,

).

18 Even though the D.C. Circuit has applied a modified test in

circumstances in which Congress is involved, it has often

concluded that the records at issue were “agency” records and

therefore subject to FOIA. Compare Goland,

(not subject to FOIA), with Paisley,

(subject

to FOIA); and Holy Spirit,

(subject to FOIA);

see also United We Stand,

(subject to FOIA

in part). As the D.C. Circuit has recognized, it is common for

agencies to communicate with Congress about a range of

policymaking matters; recognizing a broad exception whenever

Congress is involved in these communications would undermine

FOIA’s preference for disclosure. See Paisley,

(describing how “[m]any agencies . . . must work frequently and

closely with congressional committees on matters of budget and

policy or on individual cases” and that a broad interpretation

of congressional control could “undermin[e] the spirit of broad

disclosure that animates [FOIA]”). With this background, the

Court will now address the parties’ arguments as to what test

applies.

2. Parties’ Arguments

The parties disagree about which test should apply and how

the Court should consider the factors in the tests. The

Committee argues that because Congress is involved, the Court

must apply the modified test. See Intervenor’s Mot., ECF No. 96

19 at 15-16. In so doing, however, the Committee asks the Court to

modify the test even further to view only the first factor as

relevant and dispositive, without any consideration of how the

agency viewed or used the document as being relevant to this

analysis. See id. at 16 (“Congress’s manifestation of its intent

to control the document and keep it confidential is dispositive,

meaning the view of an agency that possesses a Congressional

document does not factor into this case.”).

American Oversight asserts that the “special policy

considerations” warranting the modified test do not exist here

and that the Court should apply the traditional four-factor

test. See Pl.’s Mot. & Opp’n, ECF No. 100-1 at 16-26. According

to American Oversight, the special factors are lacking because

the documents were not created as part of Congress’s oversight

function and the Agencies dispute that Congress controlled the

documents. See id. Specifically, American Oversight argues that

“the logic underpinning [] deference” given in the modified test

“simply does not exist when Congress’s oversight responsibility

is not implicated, like in this case, because the negotiations

between Congress involved both legislative and executive

functions.” Id. at 18. American Oversight does not cite to

authority where other courts have recognized these factors as

determining which test should apply, see id.; but maintains that

it still prevails under the modified standard.

20 The Agencies agree that the modified two-factor test

applies, but they disagree with the Committee as to its

description of the test. See Agency Resp., ECF No. 102 at 11-13.

Specifically, they assert that the Committee’s interpretation of

this test omits the second factor which is relevant here: the

agency’s ability to use the documents as it saw fit. See id.

The Court will apply the two-factor test. Although American

Oversight raises compelling arguments as to why this case is

distinct from other cases in which the two-factor test has been

applied, it seems likely that special considerations still

arguably exist even when Congress is involved in its lawmaking

function and even if the Agencies disagree about who controls

the records. See Judicial Watch,

(citing United

We Stand,

); Paisley,

n.30

(noting the need to “safeguard Congress' long-recognized

prerogative to maintain the confidentiality of its own records

as well as its vital function as overseer of the Executive

Branch”); ACLU,

. 8 The Court does not need to

resolve this issue, however, because it concludes that American

Oversight and the Agencies prevail under either test.

8 As the Committee argues, Congress also has constitutional interests in its legislative functions. See Intervenor’s Opp’n & Reply, ECF No. 105 at 15. 21 Accordingly, the Court will presume, without deciding, that the

two-factor test applies.

B. Application of the Two-Factor Test

Under the modified test, the Court must determine whether

‘“Congress manifested a clear intent to control the document.”’

ACLU,

-47 (quoting Judicial Watch,

). This analysis “renders the first two factors of the

standard test effectively dispositive.”’

(quoting Judicial

Watch,

(quoting United We Stand,

)). Accordingly, the Court will consider both of the “first

two factors of the standard test” to determine whether Congress

manifested such a clear intent.

1. Factor One: The Creator’s Intent to Control

The Committee argues that it clearly intended to maintain

control of the documents at issue because the ‘Legend’ was

attached to at least one of the emails sent by committee

staffers to the Agencies. See Intervenor Mot., ECF No. 96 at 21-

27. It relies exclusively on the contents of the Legend as

unquestionable evidence that the Committee clearly intended to

control the records and therefore it must prevail on its Motion

for Summary Judgment. See

American Oversight and the

Agencies dispute this. American Oversight raises several

arguments as to why Congress did not clearly manifest its intent

to retain control over these documents, specifically: (1) the

22 Committee staffers’ insertion of the Legend was inadequate to

manifest Congress’s intent for this purpose; (2) the Legend did

not and could not control documents that were exchanged prior to

its insertion; (3) the documents should be considered as their

individual components and not one overarching chain; (4) the

Legend was not specific or adequate enough to be a manifestation

of congressional intent to control the documents to it was

affixed. See Pl.’s Mot. & Opp’n, ECF No. 100-1 at 24-36. The

Agencies raise several similar arguments. See Agencies’ Resp.,

ECF No. 102 at 13-18.

The Court concludes that the Committee has failed to show

that it clearly manifested its intent to control the records at

issue. As explained below, the circumstances here do not show

that Congress manifested its intent to control the records, but

instead that Committee staffers affixed a generally applicable

disclaimer to email communications with the Agencies in the

course of discussing proposed legislation about health care

reform. This non-specific assertion does not reflect the

considered judgment that has previously been held to manifest

Congress’s clear intent. In reaching this conclusion, the Court

reaffirms the importance of due respect for a coordinate branch

of government. The issue here, however, is whether Congress

indeed manifested such an intent, and the Court concludes that

it has not.

23 Because the Court holds that the Committee fails to show it

manifested its intent to control the documents even with the

Legend affixed, it need not reach the disputes as to whether the

individual emails should be considered as a whole record and

whether the Committee staffers’ insertion of the Legend applies

to emails that predate it in the same conversation.

i. Records Not Produced in Oversight

Although the Court presumes that Congress’s oversight

function, or lack thereof, does not determine which test

applies, it is still important to consider the context of the

communications at issue. The Committee denies that the records

were produced apart from Congress’s oversight function. It

states that “communications between Congress and the Executive

Branch regarding health care reform constitute ‘oversight’ as

that term is properly understood, and that there is no clear

delineation between ‘oversight’ activities and other types of

‘legislative’ activities.” Intervenor’s CSMF, ECF No. 105-1 at 6

(citing Intervenor’s Opp’n & Reply, ECF No. 105 at 14-17). 9 But

9 In its Opposition/Reply, the Committee points to House Rules which authorize committees to “review and study on a continuing basis matters to assist the house in its analysis, appraisal, and evaluation of” legislation. Intervenor’s Opp’n & Reply, ECF No. 105 at 17 (internal quotations omitted). Therefore, according to the Committee, the FOIA requests here seek documents that “squarely implicate Congress’s Article I authority—which includes legislative and oversight components.”

24 the Court need not determine if or where the line is drawn

between oversight and legislative functions to assess the

context here. 10 What is relevant for purposes of determining

Congress’s assertion of clear intent is that there is no

evidence of any specific oversight investigation or other

function occurring. Put otherwise, the Committee may well have

been engaging in its regular activities that included assessing

information from the Agencies that informed its oversight

function, but there is no other manifestation of this oversight

function such as a letter or hearing in which the Committee set

parameters for the information exchanged with the Agencies.

This absence alone does not necessarily mean that Congress

could not have manifested a clear intent otherwise. It is,

however, instructive when comparing this case to other cases in

which the D.C. Circuit has assessed such a manifestation. The

D.C. Circuit cases that developed the modified test and

considered whether records were “agency” or “congressional” for

FOIA purposes were in the context of Congress conducting

oversight through hearings or other investigations. See Goland,

(“stenographic transcript of Hearings held

before the House Committee on Expenditures in the Executive

10For this reason, whether the Committee was engaged in oversight activities is not a material dispute that renders summary judgment unavailable. 25 Departments”); Holy Spirit,

(correspondence

and memoranda generated by one of four committees that was

investigating Korean-American relations from 1976-1978);

Paisley,

(Senate Select Committee on

Intelligence investigation into the death of former CIA agent

John A. Paisley); United We Stand,

(internal

citations omitted) (Joint Committee on Taxation investigation

into “whether the IRS”s selection of tax-exempt organizations .

. . for audit has been politically motivated”); ACLU,

(Senate Select Committee on Intelligence “oversight

review of the CIA’s highly controversial, but then-defunct,

detention and interrogation program”). 11

Accordingly, the fact that the Committee here did not

engage in a formal oversight investigation of the Agencies

11Many of the records at issue in these D.C. Circuit cases were also deemed “secret” or “confidential.” See Goland,

(“the Hearing Transcript had been classified “Secret” by Congress”); Paisley,

(some documents were classified as “Secret” by the Senate Select Committee on Intelligence); United We Stand,

(Joint Committee on Taxation’s Chief of Staff was under the impression that the Committee’s investigative requests to the IRS would be confidential); ACLU,

(discussing procedures for confidentiality in reviewing CIA documents and asking the Executive to retain the full classified report produced from the Senate Select Committee on Intelligence’s investigation); but see Holy Spirit,

(“In contrast, the circumstances surrounding Congress' creation of the documents requested by the Church do not demonstrate any intent that they be kept secret.”).

26 contrasts, for example, to the Senate Select Commtittee on

Intelligence’s investigation into the CIA’s post-911 “detention

and interrogation program”, see ACLU,

; or the

death of a former CIA agent, see Paisley,

; or

the Joint Committee on Taxation’s investigation into purported

politically motivated audits of tax exempt entities, see United

We Stand,

. Though, as noted, not dispositive,

this context is relevant to assessing the Committee’s actions

and communications.

ii. Staffers’ Assertions

There is no dispute here that the only mode of the

Committee allegedly asserting its intent to control the emails

and attachments was the Legend included in certain emails. See

Pl.’s Mot. & Opp’n, ECF No. 100-1 at 25; see also Intervenor’s

Opp’n & Reply, ECF No. 105 at 34 (conceding there was no formal

communication). American Oversight argues that the Legends

inserted on certain emails “do not reflect a decision by

Congress, or someone authorized to act on behalf of Congress, to

assert control over the emails to which the footers are

appended.” Pl.’s Mot. & Opp’n, ECF No. 100-1 at 24. It contrasts

what occurred here, a decision by one staffer to attach a footer

to an email, with other D.C. Circuit cases in which the

committee, or a staffer who had the authority to speak on behalf

of the committee, articulated an intent to control certain

27 documents. See

As American Oversight points out, all the

relevant D.C. Circuit cases entailed either the Committee’s

leadership or a high-level staffer on the Committee such as the

Chief of Staff making such an assertion. See id. at 24-25; see

also ACLU,

(letter sent from SSCI Chair and

Vice Chair); United We Stand,

(communication

from Chair, Vice-Chair, and Ranking Members of Joint Committee

on Taxation); Goland,

(committee oversight

hearing held in executive session at which transcript was marked

secret). In summary, American Oversight argues that the “law

does not permit individual staffers to assert control over

records on behalf of Congress” and that “the Committee has

pointed to no congressional or Committee rule conferring this

authority” here. See Pl.’s Mot. & Opp’n, ECF No. 100-1 at 24-25.

In response, the Committee argues that that the D.C.

Circuit has held that Congress need not assert its intent to

control documents in a specific way, Congress often takes

actions through its staffers, there is no D.C. Circuit precedent

that prohibits congressional staff from asserting Congress’s

intent to control documents, here the staff had authority from

the Committee’s General Counsel and Parliamentarian to assert

such authority, and that the Committee need not use a “formal

communication” to assert its intent. See Intervenor’s Opp’n &

Reply, ECF No. 105 at 31-34.

28 To the extent that the Committee argues that the context of

an assertion of congressional intent has no bearing on whether

such intent is clearly made for FOIA purposes, this argument is

rejected. The Committee mistakes the deference that exists once

Congress manifests an intent to control with an analysis of

whether Congress manifested such an intent. Moreover, the

authority that the Committee cites must be read in context. See

at 31 (citing Holy Spirit,

). The Committee

cites Holy Spirit for the proposition that the D.C. Circuit

“explicitly declined to direct ‘Congress to act in a particular

way in order to preserve its FOIA exemption for transferred

documents.”’

12 The D.C. Circuit made this remark, however,

while reaffirming that Congress’s intent to control disputed

documents must be clearly made. See Holy Spirit,

. Put otherwise, the Court does not need to categorically

decide that non-leadership staff can never manifest Congress’s

intent, but that the facts of how such an assertion occur are

12The Committee also relies on Goland for the proposition that the identity of the staffer who stamped “confidential” on a hearing transcript was not relevant to the court’s analysis. See Intervenor’s Opp’n & Reply, ECF No. 105 at 32. This is a selective representation. In Goland, the D.C. Circuit reviewed how the committee had met in executive session to take the relevant testimony in secret and thereafter the transcript of that testimony as secret. See Goland,

. It was not confronted with a situation where the only action taken to assert congressional control was by a staffer on behalf of a committee. See also Pl.’s Reply, ECF No. 107 at 17. 29 relevant to whether such a manifestation clearly occurred. See

also Intervenor’s Opp’n & Reply, ECF No. 105 at 32-33

(explaining how congressional committees often act through their

staff); but see Pl.’s Reply, ECF No. 107 at 18 (citing United We

Stand,

) (alterations in original) (discussing

how “in the only case the Committee points to where the Legend

was appended by someone other than an elected official, Comm.

Reply Br. at 28, the ‘confidentiality directive appears in a

letter written by the Joint Committee’s chief of staff as part

of an investigation authorized by the chairman, vice-chairman,

and ranking members of the Joint Committee,’ a fact that was

‘emphasize[d]’ by the Court ‘[i]n finding sufficient ‘indicia of

congressional intent.’’”).

Here, the Committee neglects to provide any additional

details about how the staffers purportedly manifested Congress’s

intent and chooses to rest only on its general arguments that

such information is “irrelevant.” Intervenor’s Opp’n & Reply,

ECF No. 105 at 31-34 (arguing that conformance with “procedural

niceties” is not required). The Court disagrees. Accepting the

Committee’s representations that staffers were authorized 13 to

13In its Opposition and Reply, the Committee asserts that the staffers were authorized to do so by the Committee’s General Counsel and Parliamentarian, citing the Fromm Declaration ¶ 10; but the details about who authorized staff to insert the Legend when deemed appropriate were not included in this declaration nor in the Committee’s statement of facts. See generally 30 affix the Legend when they deemed appropriate, American

Oversight points out numerous questions that remain unanswered

such as the scope of the authorization to use the Legend,

whether all staffers or only certain staffers had such

authority, whether staffers were provided any guidance on when

to assert the authority, and whether the staffers’ invocation of

the authority was subject to any review. See Pl.’s Mot. & Opp’n,

ECF No. 100-1 at 25. Without any further information from the

Committee, all that the summary judgment facts show is that

Committee staffers with undefined authority to do so “cop[ied]

and paste[d]”, see Fromm Decl., ECF No. 96-2 ¶ 10; the Legend

into emails sent back and forth to Agency staff about possible

healthcare reform. There are no facts showing that the Committee

made a specific determination that these communications should

be subject to congressional control. This falls far short of the

clear manifestation of intent that is required to prevent

disclosure under FOIA.

iii. Specificity of the Assertion

Finally, and considered together with the details of the

staffers copying and pasting the Legend when they deemed

appropriate, the generic and far-reaching contents of the Legend

Intervenor’s Mot., ECF No. 96; Intervenor’s Opp’n & Reply, ECF No. 105. 31 further show that Congress did not clearly manifest an intent to

control the records at issue.

As noted, the Committee relies exclusively on the Legend as

showing its clear intent to control the records at issue. See

generally Intervenor’s Mot., ECF No. 96; Intervenor’s Opp’n &

Reply, ECF No. 105. The Committee does not assert, however, that

the Legend was somehow specifically tailored to the records at

issue. See Intervenor’s Opp’n & Reply, ECF No. 105 at 26-27.

Indeed, the Committee has said that staffers were authorized to

affix the generic Legend whenever they deemed appropriate. See

Intervenor’s Mot., ECF No. 96 at 10. It maintains that the

Legend is specific enough because it was appended to the email

exchanges themselves, including words like “this” and “related”

documents, see id.; and attempts to distinguish this from the

general expressions that the D.C. Circuit has deemed

insufficient, see

(discussing Paisley,

;

United We Stand,

).

There is no doubt that the Legend was drafted to be wide-

reaching and encompass a broad number of records that could be

related to the exchange to which the Legend is inserted. See

Intervenor’s Opp’n & Reply, ECF No. 105 at 25 (listing five

different ways in which the individual emails could fall within

the documents sought to be controlled by the Legend); see also

id. at 7 (showing that the Legend purported to apply to any

32 “documents, notes, draft and final legislation, recommendations,

reports, or other materials generated by the Members or staff of

the Committee on Ways and Means” and “[a]ny such documents

created or compiled by an agency in connection with any response

to this Committee document or any related Committee

communication”). In context, this undermines the notion that

Congress manifested a clear intent to control the specific

records at issue. See Fromm Decl., ECF No. 96-2 at 2; see also

Agencies’ Resp., ECF No. 102 at 16 (“By affixing the same

boilerplate Legend to each message, there is nothing to suggest

that Congress applied any criteria for reserving control that is

particularized to the content of the document.”); United We

Stand,

(citing Paisley,

)

(explaining how Congress must give “contemporaneous and specific

instructions” to assert or maintain control).

As the Agencies point out, if congressional staffers could

simply insert this footer into any email correspondence based on

unspecified criteria and unclear, if any, review of such a

decision, the window of exclusion from FOIA significantly

widens, beyond a point that the D.C. Circuit’s careful analyses

have previously allowed. Due deference for a coordinate branch

of government does not require such an approach. On the

contrary, respect for the separation of powers and the purpose

of the Act mandate its rejection.

33 For all these reasons, the Committee has failed to show

that the first factor warrants concluding that it clearly

manifested its intent to control the disputed records.

2. Factor Two: The Agencies’ Ability to Use and Dispose of the Records

The Agencies describe in detail how they sought and used

the information from the Committee for their decision-making

about the proposed health care reform legislation and even to

compile a recommendation to the President as to whether he

should sign or veto the bill if it passed Congress. See

Agencies’ Resp., ECF No. 102 at 17; see also Pl.’s Mot. & Opp’n,

ECF No. 100-1 at 37. Based on the facts that the Committee does

not dispute, but claims are irrelevant, the Agencies clearly

used the documents as they saw fit. See generally Intervenor’s

Mot., ECF No. 96; Intervenor’s Opp’n & Reply, ECF No. 105. 14

14In its responses to American Oversight’s Counter-Statement of Material Fact, the Committee denies that “[t]he documents at issue were obtained from Congress for use in HHS and OMB’s own decision-making processes”, but reiterates its view that this is not a material fact and does not address this in any of its briefs. See Intervenor’s Resp. to Counter-Statement of Material Facts, ECF No. 105-1 at 5. The Committee also stated that it lacked sufficient knowledge as to whether “Agency personnel read and relied on the information provided in the Contested Records in crafting their legislative strategy and advising the President.” Id.; see also Intervenor’s Resp. to Def.’s Counter- Statement of Material Facts, ECF No. 105-2 at 4-5 (lacking knowledge as to whether the Agencies used the documents for “Executive Branch purposes such as advising the President about healthcare reform” and “generating a SAP”). 34 Moreover, neither OMB nor HHS agreed to the terms of the Legend

while exchanging emails with the committee staffers. See

Instead, the Committee maintains that the Agencies’ actions

and understanding are irrelevant to the Court’s analysis. See

Intervenor’s Opp’n & Reply, ECF No. 105 at 13; Agencies’ Resp.,

ECF No. 102 at 12 (explaining how the Committee’s interpretation

would “ignore the second factor”). This means, according to the

Committee, that the Court need not consider the second factor at

all. See Intervenor’s Opp’n & Reply, ECF No. 105 at 13. The

Committee bases this argument in the legal requirement that an

agency have exclusive control over documents for them to be

subject to FOIA, which it cannot do if Congress expresses an

intent to obtain or retain control of the same documents. See

Therefore, according to the Agency, the first and second

factors are mutually exclusive, and the Court need not consider

how the Agency used the documents if Congress manifested clear

intent to control the documents. See

This argument fails for two main reasons. First, as

described above, the Court concludes that the first factor does

not weigh in the Committee’s favor. Second, the Committee’s

argument ignores the fact that how the Agencies used the

documents may be indicative of whether Congress manifested a

clear intent to control them. Therefore, while the questions of

whether the Agencies or Congress exercised control over the

35 documents may be “mutually exclusive,” this does not render an

inquiry into how the Agencies used the documents redundant. The

Committee’s explanation of its argument proves this point. When

arguing the two factors are “mutually exclusive”, the Committee

asserts that “if the agency has ‘exclusive control’ of the

document, which it must have to trigger a FOIA obligation,

Congress necessarily has not manifested a clear intent to

control that document.”

(citations omitted). On this logic,

the Agencies’ use of the documents is indicative of whether

Congress or the Agencies manifested control and is plainly

relevant to the Court’s analysis. See also See Pl.’s Reply, ECF

No. 107 at 10 (“This is logical, because the agency’s actions

are evidence of whether Congress’s manifestation of intent was

clear.”).

Third, the Committee’s argument cannot be squared with

precedent. As the Committee concedes, the D.C. Circuit has

clearly and repeatedly said that “[t]his focus renders the first

two factors of the standard test effectively dispositive.”

Judicial Watch,

(emphasis added); see also Cause

of Action v. Nat’l Archives & Records Admin.,

(D.C. Cir. 2014); ACLU,

; United We Stand,

. Indeed, in cases that have applied the modified,

two-factor test, the reviewing court has acknowledged how the

agency used the documents, or viewed any restrictions on its

36 ability to use the documents, as part of its analysis. See

United We Stand,

(considering provisions of

the agency’s manual); Judicial Watch,

(referencing the D.C. Circuit’s analysis of the second factor in

its review of the four-factor test, Part III.A.2, in its

conclusion that the non-FOIA entity had manifested a clear

intent to control the disputed records). Moreover, as the

Agencies point out, these prior cases “involved agency agreement

that the records at issue were not agency records.” Agency

Resp., ECF No. 102 at 12 (emphasis in original) (citations

omitted). Here, the Agencies maintain that the records were not

congressional, and that there were no restrictions on their

ability to use the records. That the Agencies disagree as to

whether Congress clearly controlled the documents may not be

relevant to which test applies, but it speaks to whether

Congress clearly manifested an intent to control.

Moreover, in the cases that pre-date the four or two factor

analysis, and are the foundation for the D.C. Circuit applying

the modified test, courts similarly considered how the agency

used the documents. See Goland, 607 F.3d at 347 (“Whether a

congressionally generated document has become an agency record,

rather, depends on whether under all the facts of the case the

document has passed from the control of Congress and become

property subject to the free disposition of the agency with

37 which the document resides.”); id. (considering how the agency

“retains a copy of the Transcript for internal reference

purposes only, to be used in conjunction with legislation

concerning the Agency and its operations”); Holy Spirit,

(comparing records at issue, the contents of which

the agency appeared to be aware, with other records transferred

to the agency in sealed cartons with instructions not to open

with which the agency complied).

Based on the clear language that the D.C. Circuit has used

and how it has conducted its analyses, the Court concludes that

the modified test should be interpreted to give meaning to the

second factor as relevant ascertaining whether Congress

manifested a clear intent to control records. Because the

Committee only refutes the relevance of this factor and not the

Agencies’ representations about how they used the records, an

argument the Court rejects, this factor weighs in favor of

concluding that these are agency not congressional records.

IV. Conclusion

In reaching its conclusion that Congress has not manifested

a clear intent to control the disputed documents, the Court

again affirms the respect due to a coordinate branch of

government. It also recognizes, as has the D.C. Circuit, that

agencies frequently communicate with Congress about a range of

budgetary and policy matters, and that FOIA’s protections do not

38 shield all of those communications from disclosure simply

because of Congress’s involvement. See Paisley,

.

To deem the actions here – staffers simply copying and pasting a

catch-all disclaimer into any communication they find

appropriate - as a clear assertion of congressional intent would

significantly broaden the scope of FOIA exemptions. Such an

approach would contravene the D.C. Circuit’s admonition that

Congress’s FOIA exemption cannot be interpreted to “undermine

the broad spirit of disclosure that animates the Act.”

For the foregoing reasons, the Committee’s Motion for

Summary Judgment, ECF No. 96, is DENIED; and American

Oversight’s Cross-Motion for Summary Judgment, ECF No. 100, is

GRANTED.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge September 24, 2025

39