The District of Columbia district court on Tuesday granted summary judgment to the United States Department of Veterans Affairs (VA) after the Cause of Action Institute (COA) alleged that the VA unlawfully withheld records related to a health care delivery plan for veterans.
COA had requested records under the Freedom of Information Act (FOIA) concerning the “pilot market assessments” created by PricewaterhouseCoopers, a VA contractor, to prepare for implementation of the Market Area Health System Optimization (MAHSO) analysis. The court explained that this was “part of a broader national plan to improve the delivery of health care to veterans.”
“The Request included in its scope ‘any information produced by the Department of Veterans Affairs or provided by the contractor conducting the pilot studies, which were designed to define processes and outputs for an ‘ideal healthcare delivery system,’ from ‘December 6, 2016 to the present,’” the court said.
A few transfers of the request among different VA offices and nearly one year after the VA initially confirmed it had received the request, COA had not received any further communications. Thus, it requested a status update, to which the FOIA officer responded that they estimated the request to be completed by the end of calendar year 2020. Two days after that, on April 16, 2020, COA brought suit against the VA.
About a month later, the FOIA officer in charge of the request issued an initial agency decision that withheld all 489 pages yielded from the records search; eventually, the VA concluded that it could release 38 pages to COA but kept the remaining 451.
Some back-and-forth filings between the parties eventually produced the cross-motions for summary judgment, operative in this opinion. The VA invoked Exemption 5 under FOIA in its justification for withholding the documents, which protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency,” according to the Department of Justice, through what is called “deliberative process privilege.”
“To protect agencies from being ‘forced to operate in a fishbowl,’ the deliberative process privilege shields from disclosure ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated,’” the court said, citing U.S. Fish & Wildlife Service v. Sierra Club Inc.
In siding with the VA, the court cited Judicial Watch Inc. v. U.S. Department of Defense: “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” With particular respect to the deliberative process privilege, the government would have to explain “(1) ‘what deliberative process is involved,’ (2) ‘the role played by the documents in issue in the course of that process,’ and (3) ‘the nature of the decisionmaking authority vested in the office or person issuing the disputed document(s), and the positions in the chain of command of the parties to the documents,’” pursuant to Center for Biological Diversity v. EPA.
According to the court, the VA satisfied all of the criteria in its explanation for how the withheld documents are protected by the deliberative privilege, and the plaintiff’s arguments that the documents are not “predecisional” and thus not deliberative cannot stand. The court’s main conclusion was that because the strategy for implementing the veterans health care delivery program is ongoing, the withheld documents are necessarily predecisional and deliberative.