Barry Goldwater Institute for Public Policy Research v. United States Department of Education

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Barry Goldwater Institute for Public Policy
Research,
Plaintiff,
v.
United States Department of Education,
Defendant.
No. CV-24-00314-PHX-SMM
ORDER
This matter is before the Court on Plaintiff’s Motion for Summary Judgment (Doc.
18) and Defendant’s Cross-Motion for Summary Judgment (Doc. 22). The Motions are
fully briefed. (See Docs. 18; 19; 22; 23; 26; 27; 50; 51; 52; 55; 56). The Barry Goldwater
Institute for Public Policy Research’s (“Plaintiff” or “the Institute”) filed this action for
declaratory and injunctive relief pursuant to the Freedom of Information Act (“FOIA”)
against the United States Department of Education (“Defendant or “the Department) after
the Department failed to produce records relating to its record $37.7 million fine against
Grand Canyon University (“GCU”).1 The Department has since disclosed the documents
not subject to an exemption and submitted five different Vaughn indexes. The Court’s
task is to discern whether the Department’s belated disclosure was “adequate” under
FOIA. For the following reasons, the Court grants in-part and denies in-part the cross-
motions for summary judgment.
1 The Institute does not represent GCU nor is it involved in any other litigation between
the Department and GCU.
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I. BACKGROUND
The Institute seeks review of the Department’s response to the Institute’s
December 4, 2023 request under the FOIA, 5 U.S.C. § 552, for records relating to the
Department’s $37.7 million fine against GCU for substantial misrepresentations of some
of its PhD programs. (Doc. 18). The Institute’s FOIA request followed the Department’s
October 31, 2023, announcement of a $37.7 million fine GCU. This was the largest fine
ever imposed against a university in the United States. (Id. at 1-2). The Institute sought
records regarding communications about how the Department developed and coordinated
the enforcement against GCU. (Id.)
In its Motion, the Institute argues that the Department: (1) failed to comply with
the FOIA’s statutory deadline, (2) did not meet its burden of proof to establish that
certain FOIA exemptions apply, and (3) did not reasonably segregate portions of records
that are exempt from those that are not subject from exemption. (Doc. 18). In response,
the Department contends that it processed all records identified after an adequate and
reasonable search for responsive records and released all reasonably segregable, non-
exempt information from records responsive to the Institute’s request. (Doc. 19). The
Department withheld information under the deliberative process privilege, the attorney
work-product privilege, the attorney-client privilege, or because the information was
compiled for law enforcement purposes and related to an ongoing enforcement
proceeding. (See id.)
1. The Department of Education’s Investigation
The Department is an agency of the federal government within the meaning of the
FOIA. (Docs. 19 at 2; 23 at 1). Federal Student Aid’s (“FSA”) Office of Enforcement, a
part of the United States Department of Education, among other things, conducts
oversight of schools that participate or have participated in FSA programs that pose a risk
to students and taxpayers. (Doc. 23 at 4). The Enforcement Office contains an
Investigations Group (which includes attorney and non-attorney investigators) that
conduct investigations into schools’ compliance with Title IV of the Higher Education
Act of 1965 (“HEA”), 20 U.S.C. §§ 1070, et seq., and its implementing regulations, as
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well as the terms and conditions of schools’ program participation agreements. (Id.)
The attorneys within the Investigations Group provide legal advice to others
within the Investigations Group and to the Enforcement Office’s leadership, as well as
the Chief Operating Officer, on, among other things, matters the Investigations Group is
researching or investigating for potential violations of Title IV of the HEA and its
implementing regulations. (Id. at 4-5). The Investigations Group also consults with
attorneys in the Department’s Office of General Counsel (“OGC”) for legal advice on
matters related to the Investigation Group’s work. (Id. at 5).
The Investigations Group opened an investigation into GCU’s compliance with
Title IV of the HEA, including but not limited to, 20 U.S.C. §1094 and its implementing
regulations, including but not limited to, 34 C.F.R. § 668.71-74. (Id.) Between June 2022
and January 2023, the Investigations Group sought information from GCU related to
GCU’s marketing of graduate programs, complaints received from graduate students,
students enrolled in GCU’s graduate programs, and the costs students incurred. (Id.)
On May 12, 2023, the Investigations Group informed GCU that it had evidence
that suggested GCU made substantial misrepresentations regarding the cost, credits, and
competition time required for GCU’s online doctoral programs that required a
dissertation. (Id.) The Investigations Group further informed GCU that an enforcement
action by the Department against GCU was possible, and that such action could include a
fine and limitations or conditions on GCU’s participation in the federal student aid
program. GCU denied the allegations. (Id.)
In August 2023, the Office of Enforcement notified GCU that the Department
determined GCU violated certain provisions of Title IV of the HEA and its implementing
regulations by making substantial misrepresentations to prospective and current students
regarding the costs of certain doctoral programs. (Id.) The Office of Enforcement
explained that the Department intended to initiate a fine against GCU and that GCU
would be issued a provisional program participation agreement containing conditions
intended to address GCU’s substantial misrepresentations. (Id.)
On October 22, 2023, the then-Chief Operating Officer of FSA, Richard Cordray
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(“Mr. Cordray”), approved the initiation of the fine against GCU. (Id. at 6). On October
31, 2023, the Department notified GCU that it intended to fine GCU $37.7 million dollars
pursuant to 20 U.S.C. § 1094(c)(1)(F) and 34 C.F.R. § 668.84 and § 668.71(a)(4), based
on GCU’s substantial misrepresentations of the costs of certain doctoral programs. (Id.)
The Department informed GCU that the fine would be imposed on November 20, 2023,
unless the Director of the Department’s Administrative Actions and Appeals Service
Group received, by that date, a request for a hearing to be conducted by the Office of
Hearings and Appeals (“OHA”) or written material indicating why the fine should not be
imposed. (Id.) On November 16, 2023, GCU requested a hearing to challenge the fine.
GCU’s hearing to challenge the fine (the “appeal”), was referred to OHA. (Id.) The
appeal was never ruled upon.
On October 31, 2023, the Department issued a press release announcing a record
fine of $37.7 million against Grand Canyon University (“GCU”) for substantial
misrepresentations about the costs of certain doctoral programs. (Doc. 19 at 3).
2. The Goldwater Institute’s Public Records Request
On December 4, 2023, the Goldwater Institute submitted an expedited public
records request to the Department through its online portal and email (“the Request”).
(Id. at 3-4). The Request sought communications pertaining to fines under the HEA as it
relates to GCU. (Id. at 3). The Request sought the following documents and records:
(1) Copies of all email communications between the individuals identified below
pertaining the Federal Student Aid’s (“FSA”) or the U.S.
Department of Education’s (“DOE”) investigation and fine of Grand Canyon
University (“GCU”) for alleged violations of the Higher Education Act and/or
federal regulations, as well as GCU’s Provisional Program Participation
Agreement, from January 1, 2021 to the date of this request:
a. Richard Cordray
b. Christopher Madaio
c. Susan Crim
d. Lina Khan
e. Michael Tankersley
f. Rohit Chopra
(2) Copies of records that indicate the total number of complaints submitted by
members of the public to the DOE pertaining to GCU’s disclosure of the cost
of its doctoral programs from January 1, 2020 to the date of this request.
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(Id.) On December 4, 2024, the ED FOIA Service Center, Office of the Secretary,
acknowledged the Request and assigned the Request the number, 24-00550-F (“the
Acknowledgement”). (Id. at 4). The Acknowledgement denied expedited processing and
advised of the Department’s average request processing time of 185 business days. (Id.)
The Acknowledgement did not state any unusual circumstances that would permit an
extension to the FOIA’s 20-business day timeline, nor did it provide a date by which a
determination was expected. (Id.)
On December 6, 2024, the Institute sent a letter to the Department notifying it that
it must comply with the FOIA’s statutory timeline. (Id.) On December 13, 2023, the
Department sent the Institute an email stating that it conducted a search that located
approximately 7,000 records that were potentially responsive to the Institute’s Request
and the fees for the search were $2,099.34 (“Fee Estimate”). (Id.) The Fee Estimate
advised that until the Department received notification of the Institute’s willingness to
pay the search fees, the pending search and review of responsive documents would cease.
(Id. at 5). On December 20, 2023, the Institute sent a response to the Department’s
December 19, 2023, letter. (Id.) On December 22, 2023, the Department granted the
Institutes’ fee waiver. (Id.)
On January 12, 2024, the Institute sent a letter to the Department demanding a
response to the Request. (Id.) On January 16, 2024, the Department sent an email of its
position on the timeline for issuing a response stating an “initial determination” would be
provided the same day. (Id.) On January 16, 2024, the Department sent the Institute a “20
Day Status Notification” letter (“Status Notification”). (Id.) The Status Notification
alleged that there were unusual circumstances requiring an extension to the 20-day
statutory timeline. (Id.) The unusual circumstance was that the Request would result “in a
large amount of responsive records” and as such the Department would not be able to
respond to the Request within the 20-day time period. (Id.) The Status Notification did
not give an estimated completion date for when the Request would be completed. (Id.)
The Status Notification stated that the average processing time for a request was 185
days. (Id. at 6).
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The Department did not issue a response indicating a determination of whether it
would comply with the public records request within 20 business days, as required by the
FOIA. (Id.) However, the Department completed production of records responsive to the
Institute’s Request on May 7, 2024. (Doc. 23 at 3). This was approximately six months
after the Institute’s first request.
On February 14, 2024, the Institute filed its Complaint for Injunctive and
Declaratory Relief (“Complaint”) in this Court to compel the Department to comply with
the statutory timeframe and produce the requested records. (Doc. 19 at 6). On April 15,
2024, the Department emailed the Institute an interim response and documents responsive
to item one of the Request (“First Interim Response”). (Doc. 52 at 6). The First Interim
Response included 802 pages, bates labeled ED 24-00550-F (Apr. 15, 2024)_000001 to
ED 24-00550-F (Apr. 15, 2024)_000802 and withheld in whole or in part portions of the
responsive documents according to FOIA Exemptions 3, 4, 5, 6, 7(A), and 7(C). (Id.) The
Department did not provide any further basis regarding the information withheld or the
basis for the withholding. (Id.)
On April 22, 2024, the Department emailed the Institute a second interim response
stating there were no responsive records for item two of the Request (“Second Interim
Response”). (Id. at 7). The Department stated that it has
in its possession accounts from doctoral students complaining about issues
related to the cost, time, or number of credits required to obtain a degree at
GCU. Those accounts came from written complaints submitted to the
Department, oral complaints made to Department employees, and borrower
defense to repayment applications from students alleging related substantial
misrepresentations by GCU.
(Doc. 23 at 4). The parties agree that the Department does not have any specific record
that indicates “the total number of complaints submitted by members of the public to [the
Department] pertaining. . .GCU’s disclosure of the cost of its doctoral programs from
January 1, 2020 to [December 3, 2024].” (Id.)
The Department withheld information pursuant to FOIA Exemptions 5 and 7(A).
(Id. at 6). Pursuant to FOIA Exemption 5, the department withheld information under the
deliberative process privilege, attorney-client privilege, and attorney work-product
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privilege. (Id. at 7). As identified with greater specificity in the Vaughn index, the
information withheld under the deliberative process privilege included:
(1) strategic discussions concerning the Department’s investigation into
GCU which preceded any final agency decision (a) finding a violation of
federal law, regulations, or program participation agreements or (b)
enforcing federal law, regulations, or a program participation agreement
when violated; (2) email communications concerning the Department’s
statements to the press on the GCU investigation, which preceded the final
statements to the press; (3) email communications discussing the
Department’s potential response to communications from GCU’s counsel
which preceded the Department’s formal responses to GCU; (4) discussion
of other FSA matters involving GCU, all of which preceded the
Department’s decision to offer GCU a provisional PPA with conditions
relating to the findings in the GCU Investigation as well as the finalization
of that provisional PPA; and (5) email communications between the
Department and the FTC regarding the GCU investigation wherein the
parties exchanged information and recommendations related to the
investigation which preceded the initiation of the fine action against GCU.
(Id.) The Institute disputes that the withheld information properly qualifies for the
deliberative process privilege exemption. (Doc. 18 at 11).
The Department contends that because the majority of the information protected
by the deliberative process privilege pertains to pre-decisional, deliberative discussions
concerning the GCU investigation, the release of such information would expose the
Department’s decision-making process and discourage Department staff from discussing
their recommendations and views in writing, confuse the public to the extent such
material reflects the reasoning or preliminary decisions not relied on by the Department
in making its final decisions in the GCU investigation, and chill inter-agency
coordination on investigative matters thereby leading to less effective enforcement of
federal law. (Doc. 23 at 7-8). The Institute argues that the Department’s argument is
speculative and conclusory without specific analysis. (See Doc. 18 at 10-11).
Additionally, the Department argues that the release of pre-decisional, deliberate
internal discussions concerning communications with GCU or other matters involving
GCU, including recertification of GCU’s provisional PPA, also would expose the
Department’s decision-making process and discourage staff from discussing their
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recommendations and views in writing and create confusion about the Department’s
decisions. (Doc. 23 at 8). The Institute argues that the deliberative process privilege
relates to policy decisions and therefore, there would not be any of the speculative effects
that the Department imagines. (Doc. 51 at 8).
Further, the Department withheld information under the attorney-client privilege,
which contains legal advice from OGC attorneys or the attorneys of FSA’s Investigations
Group, solicitations of legal advice from such attorneys; or relays legal advice that had
been provided by OGC attorneys or identifies areas on which Department staff felt legal
guidance or advice from OGC attorneys were necessary. (Doc. 23 at 8). The Institute
does not challenge the Department’s withholding under the attorney-client privilege. (See
Doc. 51).
The Department also withheld information under the attorney work-product
privilege, such as documents drafted by FSA Investigations Group attorneys and OGC
attorneys after FSA reasonably anticipated litigation with GCU regarding the GCU
Investigation. (Doc. 23 at 9). The Department anticipated litigation with GCU as early as
May 12, 2023—the date the Investigations Group informed GCU it was considering
possible enforcement action. (Id.) The Institute does not contest the Department’s
withholding under the attorney work-product privilege. (See Doc. 51).
On May 3, 2024, the Institute Amended its Complaint based on the April 15, 2024,
production. (Doc. 52 at 7). On May 7, 2024, the Department e-mailed the Institute its
“final” FOIA response and a second production of documents, that added 80 pages to
supplement the First Interim Response. (Id.) On August 28, 2024, the Department e-
mailed the Institute a Revised April 15, 2024, production to replace the prior production
of April 15, 2024. (Id. at 8).
On July 26, 2024, the Institute filed its Motion for Summary Judgment. (Doc. 18).
On August 30, 2024, the Department filed its Response in Opposition to Plaintiff’s
Motion for Summary Judgment and cross-moved for summary judgment. (Doc. 22) In
support of its cross-motion for summary judgment, the Department filed a separate
statement of facts, attaching the Department’s first Vaughn index. (Doc. 23) On October
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18, 2024, the Department filed its reply in support of its cross-motion for summary
judgment and included a revised Vaughn index. (Doc. 30).
On August 28, 2024, the Department issued an updated version of the
Department’s April 15, 2024, production to remove certain withholdings, to withhold
certain material that the Department had inadvertently released, and to add Exemption 5
or 7(A) as an additional basis for certain withholdings that the Department originally
made. (Doc. 52 at 8).
On March 26, 2025,2 the Department withdrew its fine against GCU and dismissed
GCU’s appeal of the fine. (Id.) On May 16, 2025, the Court held a status conference on
the pending motions of summary judgment. (Id.) After the conference, the Court ordered
that the Department re-process and re-release documents responsive to the Institute’s
Request. (Doc. 45). Pursuant to the Court’s Order, the Department provided the Institute
with the Department’s fourth production and third Vaughn index on July 14, 2025. (Doc.
52 at 8). On August 8, 2025, the Court held a second status conference on the pending
cross-motions for summary judgment and ordered that Institute convey a letter of
deficiencies to the Department, provide the Department with a window to respond, and
set a date for cross-supplemental briefing on the pending cross-motions for summary
judgment. (Doc. 46).
Pursuant to the Court’s Order, the Institute provided the Department with a letter
outlining the deficiencies of the July 14, 2025, production and Vaughn index on August
21, 2025. (Doc. 52 at 9). On September 25, 2025, the Department responded to the
Institute’s letter of deficiencies, provided a fifth production of documents and a fourth
Vaughn index, and provided a declaration regarding the basis for the inconsistencies
contained in the July 14, 2025, production and Vaughn index. (Id.)
Following the September 2025 production, the parties filed supplemental briefings
to their cross-motions. (Docs. 50; 51). Also, pursuant to the Court’s Order, the parties
filed additional supplemental briefing on what represents an agency’s final decision for
purposes of assessing the applicability of the deliberative process privilege, as discussed
2 In January 2025, there was a change in presidential administrations.
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in U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., and how it applies to this case. (Docs.
54, 55, 56).
II. LEGAL STANDARD
Summary judgment is appropriate when the movant “shows that 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). Substantive law determines which facts are material, 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.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden to show that there are
no genuine disputes of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In the FOIA context, courts review an agency’s decision whether to disclose de
novo. 5 U.S.C. § 552(a)(4)(B); see also Louis v. U.S. Dep’t of Lab., 419 F.3d 970, 977
(9th Cir. 2005) (de novo review “requir[es] no deference to the agency's determination or
rationale regarding disclosures”). However, courts “accord substantial weight to an
affidavit of an agency concerning the agency’s determination as to technical feasibility. . .
and reproducibility.” 5 U.S.C. § 552(a)(4)(B). If the FOIA dispute presents a genuine
issue of material fact, courts proceed to a bench trial or adversary hearing. Animal Legal
Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 990 (9th Cir. 2016).
Upon proper request, federal agencies must disclose records to a member of the
public. 5 U.S.C. § 552. Nine categories of records are exempt from disclosure. Id. The
government has the burden of demonstrating that an exemption applies. Shannahan v.
I.R.S., 672 F.3d 1142, 1148 (9th Cir. 2012) (citing Lahr v. Nat’l Transp. Safety Bd., 569
F.3d 964, 973 (9th Cir. 2009)). When responding to a FOIA request, the government
must provide “tailored reasons” to justify withholding, and “may not respond with
boilerplate or conclusory statements.” Shannahan, 672 F.3d at 1148 (citing Wiener v.
F.B.I., 943 F.2d 972, 978–79 (9th Cir. 1991)).
Courts are permitted to rule on summary judgment in FOIA cases solely based on
government affidavits describing the documents sought. Church of Scientology of Cal. v.
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U.S. Dep’t of Army, 611 F.2d 738, 742 (9th Cir. 1979). Ordinarily, the government must
submit detailed public affidavits identifying the documents withheld, the FOIA
exemptions claimed, and a particularized explanation of why each document falls within
the claimed exemption. Wiener, 943 F.2d at 977. This submission is commonly referred
to as a “Vaughn” index. See Vaughn v. Rosen, 484 F.2d 820, 823–25 (D.C. Cir. 1973).
Because the court and the plaintiff do not have the opportunity to view the documents
themselves, the submission must be “detailed enough for the district court to make a de
novo assessment of the government’s claim of exemption.” Maricopa Audubon Soc. v.
U.S. Forest Serv., 108 F.3d 1089, 1092 (9th Cir. 1997). In camera review is only
necessary if affidavits and oral testimony cannot provide a sufficient basis for a court’s
decision. Pollard v. F.B.I., 705 F.2d 1151, 1154 (9th Cir. 1983).
III. DISCUSSION
The Institute moves for summary judgment contending that the Department (1)
failed to comply with the FOIA’s statutory deadline, (2) did not meet its burden of proof
to establish that certain FOIA exemptions apply, and (3) did not reasonably segregate
portions of records are not subject to an exemption. (Doc. 18). The Department filed a
cross-motion for summary judgment contending that the Institute (1) is not entitled to
declaratory relief for the Department’s failure to respond to the Institute’s FOIA request
within the statutory time period, (2) that it properly withheld records under the FOIA
exemptions, and (3) that it complied with the FOIA’s segregability requirement. (Doc.
22). For the following reasons, the Court grants in-part and denies in-part the cross-
motions.
A. Adequate Segregability Requirement
“The burden is on the agency to establish that all reasonably segregable portions
of a document have been segregated and disclosed.” Pac. Fisheries, Inc. v. U.S., 539 F.3d
1143, 1148 (9th Cir. 2008); 5 U.S.C. § 552(a)(4)(B)(b). “Courts must apply that burden
with an awareness that the plaintiff, who does not have access to the withheld materials,
is at a distinct disadvantage in attempting to controvert the agency’s claims.” Maricopa
Audubon Soc., 108 F.3d at 1092 (internal quotation omitted). The agency can meet its
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burden by offering an affidavit with reasonably detailed descriptions of the withheld
portions of the documents and alleging facts sufficient to establish an exemption. Id.; see
also Wiener, 943 F.2d at 979 (holding that the FBI’s explanation was not sufficiently
specific when it “provide[d] no information about particular documents and portions of
documents that might be useful in contesting nondisclosure”). The affidavits also must
not be conclusory. Church of Scientology, 611 F.2d at 742. Rather the government
should disclose “as much information as possible without thwarting the claimed
exemption’s purpose.” Wiener, 943 F.2d at 979 (citation omitted).
The Ninth Circuit has repeatedly held that “[i]t is reversible error for the district
court to simply approve the withholding of an entire document without entering a finding
on segregability, or the lack thereof, with respect to that document.” Hamdan, 797 F.3d at
779 (alteration in original) (internal quotation marks omitted) (quoting Wiener, 943 F.2d
at 988). This requirement dovetails with the principle that a district court errs when it
grants summary judgment where the agency “did not provide [plaintiff] or the district
court with specific enough information to determine whether the [agency] had properly
segregated and disclosed factual portions of those documents that the [agency] claimed
were exempt under the deliberative process privilege.” Pac. Fisheries, Inc. v. U.S., 539
F.3d 1143, 1149 (9th Cir. 2008). However, non-exempt portions of records need not be
disclosed if they are “inextricably intertwined with exempt portions.” Mead Data Cent.,
Inc. v. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
To establish that all reasonably segregable, non-exempt information has been
disclosed, the agency may provide a Vaughn index with “reasonably detailed descriptions
of the withheld portions of the documents and alleging facts sufficient to establish an
exemption.” Pac. Fisheries, Inc., 539 F.3d at 1148. The Department provided various
iterations of Vaughn indexes to the Court. (Docs. 23-3; 50-1).
The Department contends that it processed all records identified after an adequate
and reasonable search for responsive records and released all reasonably segregable, no-
exempt information from records responsive to Plaintiff’s request. (Doc. 50 at 20). The
Department elaborates that it carefully examined each record and conducted an extensive
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review of each record at issue and identified information that could be released and
information that was exempt from disclosure because of the deliberative process
privilege, the attorney work-product privilege, the attorney-client privilege, or because
the information was compiled for law enforcement purposes and related to an ongoing
enforcement proceeding, as well as other FOIA exemptions that the Institute does not
challenge. (Id.) The Department further contends that, after an extensive review of the
records at issue, there is no further non-exempt information that can be reasonably
segregated and released without revealing information exempt from disclosure under
Exemption 5 and/or 7(A). (Id.) For the following reasons, the Court agrees with the
Department that it reasonably segregated all non-exempt information and that the Vaughn
index is sufficient.
1. FOIA Exemptions
The Institute contends that the Department did not meet its burden of proving that
FOIA exemptions apply to the withheld records. (Doc. 18 at 9-11). In response, the
Department contends that it properly withheld records under the relevant FOIA
exemptions. (Doc. 22 at 9). The Institute currently only challenges that the Department
improperly invoked the Exemption 5 deliberative process privilege to some of the
withheld records. (See Doc. 51).
a. Exemption 5
Pursuant to 5 U.S.C. § 552(b)(5), the Department withheld portions of documents
that allegedly contain investigative and other communications, internal memoranda,
communications with attorneys representing Defendant, and attorney client work product.
(Doc. 22 at 9); (Doc. 50 at 10). The Institute challenges some of the Department’s
withholdings under the deliberative process privilege. (Doc. 51 at 8-10).
Exemption 5 protects from disclosure “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.” 5 U.S.C. § 552(b)(5). Exemption 5 “incorporates
the privileges available to Government agencies in civil litigation.” U.S. Fish & Wildlife
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Serv. v. Sierra Club, Inc., 592 U.S. 261, 267 (2021). Further, Exemption 5 covers the
deliberative process privilege, the attorney-client privilege, and the attorney work-
product privilege. ACLU of N. Cal. v. Dep’t of Just., 880 F.3d 473, 483 (9th Cir. 2018).
1. Attorney-Client Privilege
“(1) When legal advice of any kind is sought (2) from a professional legal adviser
in his or her capacity as such, (3) the communications relating to that purpose, (4) made
in confidence (5) by the client, (6) are, at the client’s instance, permanently protected (7)
from disclosure by the client or by the legal adviser (8) unless the protection be waived.”
U.S. v. Martin, 278 F.3d 988, 999 (9th Cir. 2002). In the context of the FOIA, “the
agency is the ‘client’ and the agency’s lawyers are the ‘attorneys’ for the purposes of
attorney-client privilege.” Competitive Enter. Inst. v. U.S. Env’t Prot. Agency, 232 F.
Supp. 3d 172, 184 (D.D.C. 2017) (quoting Judicial Watch v. Dep’t of Treasury, 802
F.Supp.2d at 200). To support claims of attorney-client privilege, the agency must, in its
Vaughn index, “list[] the records being withheld, whether each record was withheld in
full or in part, provides a description of each record, explains the reasons [the agency]
decided the record qualifies for [the privilege, and address[] the segregability of [the]
withheld information.” Competitive Enter. Inst., 232 F. Supp. 3d at 182. An agency fails
to meet its burden if it uses to boilerplate language and makes “no effort ... to tailor the
explanation to the specific document withheld. . . .” Wiener, 943 F.2d at 978–79.
However, the Institute does not challenge the Department’s withholdings under the
attorney-client privilege, so the Court declines to address whether those withholdings are
proper. (See Doc. 51).
2. Attorney Work-Product Privilege
The attorney work-product privilege protects from discovery in litigation “mental
impressions, conclusions, opinions, or legal theories of a party’s attorney” that were
“prepared in anticipation of litigation or for trial.” Fed. R. Civ. P. 26(b)(3). Shielding
from discovery materials prepared “with an eye toward the anticipated litigation” protects
the integrity of adversarial proceedings by allowing attorneys to prepare their thoughts
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and impressions about a case freely and without reservation. Hickman v. Taylor, 329 U.S.
495 (1947). The privilege ensures that litigants cannot proceed “on wits borrowed from
the adversary,” id. at 516 (Jackson, J., concurring), and “prevent[s] exploitation of a
party’s efforts in preparing for litigation.” Holmgren v. State Farm Mut. Auto. Ins. Co.,
976 F.2d 573, 576 (9th Cir. 1992) (quoting Admiral Ins. Co. v. U.S. Dist. Ct. for Dist. of
Ariz., 881 F.2d 1486, 1494 (9th Cir. 1989)). “To qualify for work-product protection,
documents must: (1) be ‘prepared in anticipation of litigation or for trial’ and (2) be
prepared ‘by or for another party or by or for that other party’s representative.’” U.S. v.
Richey, 632 F.3d 559, 567 (9th Cir. 2011) (quoting In re Grand Jury Subpoena, 357 F.3d
900, 907 (9th Cir. 2004)). The Institute does not challenge the Department’s withholdings
under the attorney work-product privilege, so the Court declines to address whether those
are proper. (See Doc. 51).
3. Deliberative Process Privilege
The deliberative process privilege allows the government to withhold “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., 421 U.S. 132, 150 (1975) (internal quotation marks omitted). However,
the deliberative process privilege does not apply “to documents that embody a final
decision, because once a decision has been made, the deliberations are done.” Sierra
Club, Inc., 592 U.S. at 268.
To fall within the Exemption 5 “deliberative process” privilege, the materials in
question must be (1) “predecisional” in nature and (2) form part of the agency’s
“deliberative process.” Sears, 421 U.S. at 151–52. A document is “predecisional” if it
was “prepared in order to assist an agency decisionmaker in arriving at his decision.”
Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975).
However, if it is not self-evident whether a document represents an agency’s final
decision, then the court must look to whether the document “communicates a policy on
which the agency has settled.” Sierra Club, Inc., 592 U.S. at 268. A document is
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“deliberative” if “disclosure of materials would expose an agency’s decision-making
process in such a way as to discourage candid discussion within the agency and thereby
undermine the agency’s ability to perform its functions.” Assembly of the State of Cal. v.
Dep’t of Com., 968 F.2d 916, 921 (9th Cir. 1992) (quoting Dudman Comms. Corp. v.
Dep’t of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987)).
Due to “the strong policy of the FOIA that the public is entitled to know what its
government is doing and why,” exemption 5 is applied “as narrowly as consistent with
efficient Government operation.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d
854, 868 (D.C. Cir. 1980) (quoting S.Rep. No. 89–913, at 9 (1965)).
An agency has the burden to show that “(A) the materials at issue are covered by
the deliberative process privilege, and (B) it is reasonably foreseeable that release of
those materials would cause harm to an interest protected by that privilege.” Reps.
Comm. For Freedom of the Press v. F.B.I., 3 F.th 350, 361 (D.C. Cir. 2021); 5 U.S.C. §
552(a)(4)(B). “Agencies must concretely explain how disclosure would—not ‘could’
adversely impair internal deliberations.” Id. at 369-70. Although agency affidavits are
generally afforded a presumption of good faith, that presumption only applies to the
adequacy of the agency’s search—not in regard to claimed exemptions. SafeCard Servs.,
Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). To satisfy its burden as to the
applicability of exemptions, an agency affidavit must “contain reasonably detailed
descriptions of the documents and allege facts sufficient to establish an exemption.”
Lewis v. I.R.S., 823 F.2d 375, 378 (9th Cir. 1987). When an affidavit is too generalized,
courts may scrutinize the withholdings more closely, including in camera review. Id.
In this case, the Department withheld the following information under the
deliberative process privilege:
(1) strategic discussions concerning the GCU investigation that preceded any
final agency decision (a) finding a violation of federal law, regulations, or
program participation agreements or (b) enforcing federal law, regulations, or a
program participation agreement when violated; (2) email communications
concerning the Department’s statements to the press on the GCU investigation,
which predated the final statements to the press (3) email communications
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discussing the Department’s potential response to communications from
GCU’s counsel, which predated the Department’s potential formal responses to
GCU; (4) discussion of other FSA matters involving GCU, such as GCU’s
recertification of its Program Participation Agreement (“PPA”), conditions
placed on GCU’s provisional PPA, and an open program review of GCU,
which predated the Department’s decision to offer GCU a provisional PPA
with conditions relating to the findings in the GCU Investigation as well as the
finalization of that provisional PPA; and (5) email communications between
the Department and the FTC regarding the GCU investigation that predated the
initiation of the fine against GCU.
(Doc. 50 at 12). The Court will proceed with addressing each challenged document.
a. Adequacy of Vaughn Index
The Institute contends that the Department’s Vaughn index inadequately describes
some of the documents for which exemptions are claimed. (Doc. 51 at 8); Lewis, 823
F.2d at 378. Specifically, the Institute contends that the Vaughn index broadly claims that
Exemption 5 applies to all but two of the 130 documents, and that each time the
exemption is claimed, the Department uses almost the exact same phrasing: “disclosure
of the materials would have a chilling effect on frank and open discussions.” (Doc. 51 at
8); Shannahan, 672 F.3d at 1148. Specifically, the Institute argues that in the September
25, 2025, Vaughn index, the Department claims that Exemption 5 cover documents 25,
82, 98, and 102, but they are neither pre-decisional, nor deliberative regarding any
agency policy and the Department only justifies its withholding because disclosure would
chill investigations or discussions in general. (Doc. 51 at 8).
A Vaughn index is a submission that “identif[ies] the documents withheld, the
FOIA exemptions claimed, and a particularized explanation of why each document falls
within the claimed exemption.” Transgender L. Ctr, 46 F.4th at 781 (quoting Lahr, 569
F.3d at 989 (internal citation omitted). A Vaughn index must “describe the justifications
for nondisclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemptions, and show that the justifications
are not controverted by contrary evidence in the record or by evidence of [agency] bad
faith.” Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992). “Specificity is the defining
requirement of the Vaughn index.” Wiener, 943 F.2d at 979; see also Hamdan, 797 F.3d
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at 773 (agency must be “as specific as possible”). For this reason, the agency “may not
respond with boilerplate or conclusory statements.” Shannahan, 672 F.3d at 1148. The
agency “bears the burden of demonstrating that the exemption properly applies to the
documents.” Yonemoto v. Dep’t of Veterans Affs., 686 F.3d 681, 692 (9th Cir. 2012),
overruled on other grounds by Animal Legal Def. Fund, 836 F.3d at 989.
While it is not the case that “an agency can never repeat language to justify
withholding multiple records,” Hamdan, 797 F.3d at 774, an agency must “disclose[ ] as
much information as possible without thwarting the [claimed] exemption’s purpose,”
Wiener, 943 F.2d at 979. The Government “must bear in mind that the purpose of the
index is not merely to inform the requester of the agency’s conclusion that a particular
document is exempt from disclosure. . .but to afford the requester an opportunity to
intelligently advocate release of the withheld documents and to afford the court an
opportunity to intelligently judge the contest.” Id. The government must demonstrate why
the records at issue should not be opened for public inspection. Id. at 978. “Ultimately, an
agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’
or ‘plausible.’ ” Hamdan, 797 F.3d at 774 (9th Cir. 2015) (quoting Larson, 565 F.3d at
862 (citation omitted).
The Institute argues that the following entries in the Vaughn index are insufficient
because the Department’s justification for the exemption is that disclosure could chill
investigations or discussions “more generally”:
Document 25: “contain strategic discussion of the GCU investigation, specifically
as it relates to the process for certain aspects of the GCU investigation, as well as the
Investigations Group’s investigations more generally.” (Doc. 50-1 at 16).
Document 82: “Disclosure of this information also would have a chilling effect on
discussion of matters related to ensuring compliance with title IV program requirements
more generally.” (Id. at 51).
Document 98: “The emails discussing the timeline of the investigation discuss
selective facts as well as contain FSA officials’ summary and impressions of certain
‘events’ in the investigation, as well as investigations more generally.” (Id. at 66).
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Document 102: “Disclosure of discussions about other matters involving GCU
would chill the exchange of information about such matters to the extent they are relevant
to ongoing FSA investigations and would chill recommendations on such matters
generally. The emails discussing the timeline of the investigation discuss selective facts
as well as contain FSA officials’ summary and impressions of certain ‘events’ in the
investigation, as well as investigations more generally.” (Id. at 69).
In document 25, the Department withheld emails that were sent before a final
decision was made on the GCU investigation and contains “strategic discussion of the
GCU investigation, and pre-decisional, deliberative discussions regarding
recertification.” (Id. at 16). The Court finds that the withheld information is both
predecisional and deliberative, so was properly withheld under the deliberative process
privilege. See Sears, 421 U.S. at 151–52.
In document 82, the Department withheld “emails to other FSA officials/staff and
OGC attorneys because they contain strategic discussions of the GCU investigation and
other FSA matters, including an open program review involving GCU.” (Id. at 51). The
Court finds that withheld information is both predecisional and deliberative, so was
properly withheld under the deliberative process privilege. Id.
In document 98, the Department described that it withheld information because it
contains “strategic discussions” and “impressions” from Department staff regarding the
GCU investigation. (Id. at 66). The withheld information is both predecisional and
deliberative, so was properly withheld under the deliberative process privilege. Id.
In document 102, the Department withheld information that included “mental
impressions concerning the call and contains strategic discussions relating to the GCU
investigation and other matters involving GCU, including an open program review
involving GCU” and “internal deliberations about the GCU investigation and other FSA
matters involving GCU.” (Id. at 69). The Court finds that the withheld information is
both predecisional and deliberative, so was properly withheld under the deliberative
process privilege. Id.
Moreover, the Court finds that the Department’s Vaughn Index is adequate for the
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Court to determine whether the deliberative process privilege was properly applied to the
disputed documents. The Department’s use of filler language, including “more generally”
in the disputed documents is permissible because the Court can determine the claimed
exemption’s purpose. See Hamdan, 797 F.3d at 774; see also Wiener, 943 F.2d at 979.
Further, the Department’s Vaughn index contains reasoning that is not simply
“boilerplate or conclusory statements.” Shannahan, 672 F.3d at 1148. Accordingly, the
Court finds that the Department’s Vaughn Index is sufficiently detailed and provides an
adequate basis for determining whether an exemption applies and grants the
Department’s motion for summary judgment regarding the adequacy of its Vaughn Index.
b. Post-decisional
Pre-decisional documents are those that include “subjective documents which
reflect the personal opinions of the writer rather than the policy of the agency.” Maricopa
Audubon Soc., 108 F.3d at 1093 (citation omitted). Because an agency’s interpretations
of its decisions often become the “working law” of the agency, documents deemed
“postdecisional” do not enjoy the protection of the deliberative process privilege. Sears,
421 U.S. at 153. This ensures that the agency does not operate on the basis of “secret
law.” Coastal States, 617 F.2d at 866.
Documents are ‘predecisional’ if they were generated before the agency’s final
decision on the matter, and they are ‘deliberative’ if they were prepared to help the
agency formulate its position.” Sierra Club, Inc., 592 U.S. at 268. “A ‘predecisional’
document is one prepared in order to assist an agency decisionmaker in arriving at his
decision, and may include recommendations, draft documents, proposals, suggestions,
and other subjective documents which reflect the personal opinions of the writer rather
than the policy of the agency.” Lahr, 569 F.3d at 979. While documents that lead to a
policy decision may be pre-decisional, documents explaining or interpreting a decision
after the fact are post-decisional and not subject to the deliberative process privilege.
Assembly of State of Cal., 968 F.2d at 920; see also Grumman, 421 U.S. at 184 (post-
decisional memoranda set forth the reasons for an agency decision already made and
therefore were not privileged).
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However, “[a] document is not final solely because nothing else follows it.” Sierra
Club, Inc., 592 U.S. at 268. What matters, is whether the document “communicates a
policy on which the agency has settled.” Id. “To decide whether a document
communicates the agency’s settled position, courts must consider whether the agency
treats the document as its final view on the matter.” Id. (citation omitted). When a
decision is final the deliberative “process by which governmental decisions and policies
are formulated will have concluded, and the document will have real operative effect.” Id.
at 268-69 (citation and internal quotation marks omitted); see Bennett v. Spear, 520 U.S.
154, 177–78 (1997) (discussing finality in context of obtaining judicial review of agency
action). “By contrast, a document that leaves agency decisionmakers “free to change their
minds” does not reflect the agency’s final decision.” Sierra Club, Inc., 592 U.S. at 269
(citing Grumman, 421 U.S. at 189–90, and n. 26). However, “determining whether an
agency’s position is final for purposes of the deliberative process privilege is a functional
rather than formal inquiry.” Sierra Club, Inc., 592 U.S. at 272-73. “If the evidence
establishes that an agency has hidden a functionally final decision in draft form, the
deliberative process privilege will not apply.” Id. at 273.
The Institute contends that the Department’s functionally final decision came out
on May 12, 2023, when the Department sent GCU a letter stating that the investigation
had concluded, detailed the allegations, and offered GCU an opportunity to oppose
enforcement action. (Docs. 55 at 5; 23-1 at 4). However, as the Department notes, the
May 12, 2023, letter sent from “the Investigations Group informed GCU that it had
evidence that suggested GCU made substantial misrepresentations regarding the cost,
credits, and completion time required for GCU’s online doctoral programs that required a
dissertation.” (Doc. 56 at 2; Id.). Also, in the May 12, 2023, letter the Investigations
Group “informed GCU that an enforcement action by the Department against GCU was
possible, and that such action could include a fine and limitations or conditions on GCU’s
participation in the federal student aid program.” (Id.) (emphasis added). Further, the
Institute contends that the final agency decisions occurred “certainly no later than
October 22, 2023, when the Department approved the fine action.” (Doc. 55 at 6, n.2).
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The Department contends that “[a]lthough Cordray approved the initiation of a
fine action against GCU on October 22, 2023, the final agency decision occurred on
October 31, 2023.” (Docs. 56 at 3; 23-2). Further, as stated in, “[t]he October 31, 2023,
“letter that initiated the fine against GCU represents the Department’s final decision to
initiate the final action and the amount of the initiated fine, as well as the Department’s
formal, final reasoning for initiating the fine action.” (Id.) Consequently, the Department
contends that the withheld information predates the Department’s October 31, 2023,
letter is therefore protected under the deliberative process privilege. (Doc. 56 at 3).
In Sierra Club, 592 U.S. 261, the Supreme Court recently held that the deliberative
process privilege protected draft biological opinions because they reflected “a
preliminary view—not a final decision—about the likely effect of the EPA’s proposed
rule on endangered species.” There, the Court noted: (1) the administrative context
confirmed that the documents labeled “drafts” were what they sounded like, “opinions
that were subject to change”; (2) there existed the possibility for “postcirculation
changes”; (3) a final document leads to “direct and appreciable legal consequences”
which is not true of draft opinions; and (4) the agency did not treat the documents as
final. Id. at 268-71.
Here, although Corday approved the initiation of a fine action against GCU on
October 22, 2023, it was not the agency’s final decision. Rather, the October 31, 2023,
letter which formally notified GCU of the fine and “described the background, evidence,
and rationale for the fine,” was the agency’s final decision. The October 31, 2023 letter
informed GCU of the legal consequences of the action, “that the fine would be imposed
on November 20, 2023, unless the Director of the Administrative Actions and Appeals
Service Group received, by that date, a request for a hearing to be conducted by the
Office of Hearings and Appeals (“OHA”) or written material indicating why the fine
should not be imposed.” (Doc. 23-1 at 5).
Consequently, documents that predate the Department’s fine action letter on
October 31, 2023, are deliberative, as they contain strategic discussion of the letter and
the initiation of the fine action against GCU, including recommendations regarding the
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letter and its substantive contents. These documents are also predecisional because they
were opinions subject to change, sought “postcirculation changes”, did not have “direct
and appreciable legal consequences”, and the agency did not treat these documents as
final. Sierra Club, 592 U.S. at 268-71.
The Court agrees with the Department that the release of documents that predate
the October 31, 2023, letter “would 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.” Maricopa Audubon Soc., 108 F.3d at 1093.
Also, “an agency’s justification for invoking a FOIA exemption is sufficient if it appears
‘logical’ or ‘plausible.’ ” Hamdan, 797 F.3d at 774. Accordingly, the Court grants the
Department’s motion on the date of the agency’s final decision.
c. Objective Material
The deliberative process privilege does not cover “[p]urely factual material that
does not reflect deliberative processes. . . .” FTC v. Warner Comms., Inc., 742 F.2d 1156,
1161 (9th Cir. 1984) (citing Mink, 410 U.S. at 87–89). Only when the “factual material ...
is so interwoven with the deliberative material that it is not severable” is an agency
relieved of the burden to segregate and disclose non-privileged factual information. Id.
(citing Binion v. Dep’t of Just., 695 F.2d 1189, 1193 (9th Cir. 1983)). An agency must
“provide specific information with respect to segregability…” Transgender L. Center, 46
F.4th at 786 (citing Hamdan, 797 F.3d at 779.)
Even if the content of a document is factual, if disclosure of the document would
expose “the decision-making process itself” to public scrutiny by revealing the agency’s
“evaluation and analysis of the multitudinous facts,” the document is nonetheless exempt
from disclosure. Montrose Chem. Corp. of Cal. v. Train, 491 F.2d 63, 68 (D.C. Cir.
1974). In other words, the document is part of the “deliberative process” as long as it is
“actually. . .related to the process by which policies are formulated.” Jordan, 591 F.2d at
774. Accordingly, Exemption 5 protects “documents that would reveal the process by
which agency officials make these determinations, whether or not the documents
themselves contain facts on non-binding recommendations regarding law and policy.”
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Nat’l Wildlife Fed’n, 861 F.2d at 1119; see e.g., Russell v. Dep’t of the Air Force, 682
F.2d 1045, 1048 (D.C. Cir. 1982).
However, “a report does not become part of the deliberative process simply
because it contains only those facts which the person making the report thinks material.”
Playboy Enterprises, Inc. v. Dep’t of Just., 677 F.2d 931, 935 (D.C. Cir. 1982). The
material is only exempt where either the disclosure of the manner of selecting or
presenting facts would expose the deliberative process, or where facts are “inextricably
intertwined” with “policy-making processes”. Ryan, 617 F.2d at 790.
The Institute contends that the Department wrongfully withheld documents under
Exemption 5 to facts relayed to agency personnel because they are not “predecisional”
and “do not reflect the agency’s internal, deliberative process that precedes
policymaking.” (Doc. 51 at 9). In response, the Department contends that the factual
material is protected under the deliberative process privilege “[w]here either the
disclosure of the manner of selecting and presenting facts would expose the deliberative
process, or where facts are ‘inextricably intertwined’ with ‘policy-making processes.””
(Doc. 50 at 15) (quoting Nat’t Wildlife Fed., 861 F.2d at 1119) (citation omitted).
The Department contends that the factual material was properly withheld because
the documents contain
(1) mental impressions and summary of relevant facts related to the GCU
investigation, the disclosure of which would expose the deliberative process in
issuing a finding and determining what, if any, actions to take in the GCU
investigation (FOIA Docs. 4, 7); (2) recommendations on Department action
which included selective acts to support such recommendations, the disclosure of
which would expose the deliberative process in investigating and taking
enforcement action (FOIA Docs 6, 39, 112); (3) legal conclusions by Department
attorneys which include selective facts to support such legal conclusions and
recommendations, the disclosure of which would disclose the deliberative process
by providing insights into the attorneys’ decision making process (FOIA Docs. 50,
54, 113); and (4) agency officials’ summary and impressions of, among other
things, certain events in the investigation, the disclosure of which would expose
the deliberative process by revealing such officials’ predecisional views on the
investigation (FOIA Docs. 96, 98).
(Doc. 50 at 15-16).
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The Court must consider whether there is segregable information in the material
withheld under the deliberative process privilege and proceeds with a document-by-
document review below. See Transgender L. Ctr., 46 F.4th at 787.
Document
Number
Exemption(s) Department’s
Justification
Institute’s
Reason
Exemption Does
Not Apply
Court’s Holding
4 (b)(5)-
deliberative
process
privilege
The email was
withheld because
“it contains
Madaio’s mental
impressions and
summary of
relevant facts
related to the
GCU
investigation.”
(Doc. 50-1 at 4).
“Relevant facts”
are not subjective
or the personal
opinions of the
writer. Maricopa
Audubon Soc. v.
U.S. Forest Serv.,
108 F.3d 1089,
1093 (9th Cir.
1997); (Doc. 26 at
13).
The Court finds
that the
withholding of the
relevant facts is
proper because the
disclosure of the
“relevant facts”
are likely so
interwoven with
the deliberative
material that they
are not severable.
6 (b)(5)-
deliberative
process
privilege
attorney-
client
privilege;
(b)(7)(A)-law
enforcement
exception
“contain the
recommendations,
and selective facts
and legal analysis
to support those
recommendations,
of the
Investigations
Group to the
Chief
Enforcement
Officer regarding
the FSA
investigation” (Id.
at 6).
“Selective facts”
are not subjective
or the opinions of
the writer. Id.;
(Id.)
The Court finds
that the
withholding is
proper because the
“selective facts”
are likely so
interwoven with
the deliberative
material that they
are not severable.
Also, the parties
do not dispute that
the material is
exempt under the
attorney-client
privilege and the
law enforcement
exception.
7 (b)(5)-
deliberative
process
privilege &
“contents of two
emails from
Madaio to
Donoghue
“Selective
supporting facts”
and “factual
information” are
The Court finds
that the
withholding is
proper because the
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attorney-
client
privilege
because the
emails contain
his mental
impressions and
recommendations
concerning the
GCU
investigation and
GCU’s
recertification of
its PPA, as
well as selective
supporting facts”
(Id. at 6).
not subjective or
the personal
opinions of the
writer. Id.; (Id.)
“selective
supporting facts”
are likely so
interwoven with
the deliberative
material that they
are not severable.
Also, the parties
do not dispute that
the material is
exempt under the
attorney-client
privilege.
39 (b)(5)-
deliberative
process
privilege
“identifies
recertification and
CIO cases that
required internal
discussion,
including GCU’s
PPA
recertification,
and contains
recommendations
and selective
facts regarding
those cases” (Id.
at 23).
“Selective facts”
are not subjective
or the personal
opinions of the
writer. Id.; (Id.)
The Court finds
that the
withholding is
proper because the
“selective facts”
are likely so
interwoven with
the deliberative
material that they
are not severable.
54 (b)(5)-
deliberative
process
privilege,
attorney-
client
privilege, and
attorney
work-product
privilege
“The
recommendation
constitutes both
legal advice and
an
investigative
recommendation
from Madaio to
Cordray regarding
the GCU
investigation, and
the document was
drafted in
reasonable
anticipation of
“Selective facts”
are not subjective
or the personal
opinions of the
writer. Id.; (Id.)
The Court finds
that the
withholding is
proper because the
“selective facts”
are likely so
interwoven with
the deliberative
material that they
are not severable.
Also, the parties
do not dispute that
the material is
exempt under the
attorney-client
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24
25
26
27
28
litigation with
GCU
regarding the
investigation.”
(Id. at 32).
privilege and the
attorney work-
product privilege.
96 (b)(5)-
deliberative
process
privilege
“. . .contain
strategic
discussions
concerning a
timeline of the
GCU
investigation and
other matters
involving GCU.
The emails
discussing the
timeline of the
investigation
discuss
selective facts as
well as contain
FSA officials’
summary and
impressions of
certain “events”
in the
investigation.”
(Id. at 65).
“Selective facts”
are not subjective
or the personal
opinions of the
writer. Id.; (Id. at
14).
The Court finds
that the
withholding is
proper because the
“selective facts”
are likely so
interwoven with
the deliberative
material that they
are not severable.
98 (b)(5)-
deliberative
process
privilege &
attorney-
client
privilege
“. . .contain
strategic
discussions
concerning a
timeline of the
GCU
investigation and
other matters
involving GCU,
as well as
investigations
more generally.
The emails
discussing the
timeline of the
“Selective facts”
are not subjective
or the personal
opinions of the
writer. Id.; (Id.)
The Court finds
that the
withholding is
proper because the
“selective facts”
are likely so
interwoven with
the deliberative
material that they
are not severable.
Also, the parties
do not dispute that
the material is
exempt under the
attorney-client
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25
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investigation
discuss selective
facts as well as
contain FSA
officials’
summary and
impressions of
certain “events”
in the
investigation, as
well as
investigations
more
generally.” (Id. at
66).
privilege.
112 (b)(5)-
deliberative
process
privilege
“. . .describes
Crim’s
conclusions and
enforcement
recommendations
to Cordray
regarding the
GCU
investigation –
specifically, the
fine action – and
contains
factual
information to
support that
conclusion.” (Id.
at 74).
“Factual
information” is
not subjective or
the personal
opinions of the
writer. Id.; (Id.)
The Court finds
that the
withholding is
proper because the
“selective facts”
are likely so
interwoven with
the deliberative
material that they
are not severable.
113 (b)(5)-
deliberative
process
privilege,
attorney-
client
privilege,
attorney work
-product
doctrine
“The summary
contains the legal
conclusions of
Madaio and
selective facts to
support that
conclusion.” (Id.
at 75).
“Selective facts”
are not subjective
or the personal
opinions of the
writer. Id.; (Id.)
The Court finds
that the
withholding is
proper because the
“selective facts”
are likely so
interwoven with
the deliberative
material that they
are not severable.
Also, the parties
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do not dispute that
the material is
exempt under the
attorney-client
privilege and
attorney work-
product doctrine.
Accordingly, the Court finds that the Department properly withheld the material
that contains factual material.
d. Draft Press Statements
The Institute contends that the deliberative process privilege does not apply to
communications regarding press releases and public relations. (Doc. 51 at 10). In
response, the Department contends that it adequately explained why the documents were
properly withheld in its Vaughn index. (Doc. 50 at 16-17).
However, “[g]overnment deliberations regarding how best to address public
relations matters or possible responses to an inquiry received from an outside entity” are
not necessarily the type of policy decisions the privilege covers. Transgender L. Ctr., 46
F.4th at 783 (citation omitted). Further, when an agency does not adequately explain how
the release of draft press statements would reveal a deliberative process, then the district
court must order the agency release the documents. Id.
Document
Number
Exemption Department’s
Justification
Institute’s
Reason Exemption
Should Not Apply
Court’s
Holding
1 (b)(5)-
deliberative
process
privilege;
attorney-
client
privilege
“. . .contains
recommendations
concerning a
variety of policy
issues;
informational
updates on
ongoing policy
work and
congressional
inquiries; and
notes for upcoming
briefings and
This includes emails
with April Jordan, an
FSA
communications unit
employee.
Documents prepared
for a press release
are not a part of
deliberative process
privilege.
Transgender L. Ctr.,
46 F.4th at 783;
(Doc. 26 at 19).
The Department
unlawfully
withheld the
notes for
upcoming press
briefings
because it did
not explain how
the release of
the information
would reveal a
deliberative
process. See
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24
25
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meetings. One
withheld portion of
the email also
relays legal advice
from OGC on a
specific issue.” (Id.
at 3).
Transgender L.
Ctr., 46 F.4th at
783. However,
the withheld
portion of the
email the
contains legal
advice is
properly
withheld.
2 (b)(5)-
deliberative
process
privilege
“. . .contains
recommendations
concerning a
variety of policy
issues;
informational
updates on
ongoing policy
work; and notes for
upcoming briefings
and meetings.”
(Id.)
This includes emails
with April Jordan, a
FSA
communications unit
employee.
Documents prepared
for a press release
are not a part of the
deliberative process
privilege. Id.; (Id.)
The Department
unlawfully
withheld the
notes for
upcoming press
briefings
because it did
not explain how
the release of
the information
would reveal a
deliberative
process. Id.
3 (b)(5)-
deliberative
process
privilege
“. . .contains
recommendations
concerning a
variety of policy
issues;
informational
updates on
ongoing policy
work and
congressional
inquiries;
information on
enforcement
matters;
and notes for
upcoming briefings
and meetings.” (Id.
at 4).
This includes emails
with April Jordan, a
FSA
communications unit
employee.
Documents prepared
for a press release
are not a part of the
deliberative process
privilege. Id.; (Id.)
The Department
unlawfully
withheld the
notes for
upcoming press
briefings
because it did
not explain how
the release of
the information
would reveal a
deliberative
process. Id.
61 (b)(5)-
deliberative
“. . .convey
strategic
This includes emails
with April Jordan, a
The Department
unlawfully
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process
privilege
information
concerning the
status of
the GCU
investigation.” (Id.
at 37).
FSA
communications unit
employee.
Documents prepared
for a press release
are not a part of the
deliberative process
privilege. Id.; (Id.)
withheld any
material that
relates to
documents
prepared for a
press release
under the
deliberative
process
privilege
because it did
not explain how
the release
relating to
communication
with a FSA
communications
employee of
would reveal a
deliberative
process. Id.
94 (b)(5)-
deliberative
process
privilege;
attorney-
client
privilege
“In
developing the
statement to the
press, Department
staff
solicited legal
advice from
various OGC
attorneys on the
statement’s
contents, and OGC
attorneys. . . .” (Id.
at 61).
Documents prepared
for a press release
are not a part of the
deliberative process
privilege. Id.; (Id.)
The Department
unlawfully
withheld the
documents
under the
deliberative
process
privilege but
lawfully
withheld the
documents
under the
attorney-client
privilege.
101 (b)(5)-
deliberative
process
privilege
“. . .strategic
discussion
concerning FSA’s
work on the GCU
fine action,
which is part of
ED’s internal
deliberations on
This includes emails
with April Jordan
and Melody Cowan,
FSA communication
unit employees.
Documents prepared
for a press release
are not part of the
The Department
unlawfully
withheld any
material that
relates to
documents
prepared for a
press release
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the GCU
investigation. . . .
contain strategic
discussions of the
GCU
investigation and
fine action, which,
at the time, had not
yet
been approved by
the Chief
Operating Officer,
nor had the fine
been issued to
GCU.” (Id. at 68).
deliberative process
privilege. Id.; (Id. at
20).
under the
deliberative
process
privilege. Id.
128 (b)(5)-
deliberative
process
privilege;
attorney-
client
privilege
“contains
strategic
discussions about
the GCU
investigation” (Id.
at 85).
This includes emails
with April Jordan
and Melody Cowan,
FSA communication
unit employees.
Documents prepared
for a press release
are not part of the
deliberative process
privilege. Id.; (Id.)
The Department
unlawfully
withheld any
material that
relates to
documents
prepared for a
press release
under the
deliberative
process
privilege but
properly
withheld the
documents
under the
attorney-client
privilege. Id.
The Court finds that the Department did not adequately segregate the exempt and
non-exempt material in the following documents. Accordingly, the Department must
release any withheld the notes or materials for press briefings or press releases in
documents 1, 2, 3, 61 and 101. See Transgender L. Ctr., 46 F.4th at 783.
e. Inter-agency Documents
Exemption 5 protects from disclosure “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than an
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agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). “To qualify, a document must
thus satisfy two conditions: its source must be a Government agency, and it must fall
within the ambit of a privilege against discovery under judicial standards that would
govern litigation against the agency that holds it.” Dep’t of Interior v. Klamath Water
Users Protective Ass’n, 532 U.S. 1, 8 (2001).
The FOIA defines an agency as “any executive department, military department,
Government corporation, Government controlled corporation, or other establishment in
the executive branch of the Government (including the Executive Office of the President,
or any independent regulatory agency[.]” 5 U.S.C. § 552(f)(1). Additionally, under the
FOIA, “agency” does not include Congress. § 551(1)(A). Accordingly, Congress and any
unit of Congress is not an “agency” under the FOIA. See Mayo v. U.S. Gov’t Printing
Off., 9 F.3d 1450, 1451 (9th Cir. 1993) (holding that Government Printing Office is not
covered under the FOIA because it is a unit of Congress).
The Institute contends that the Department unlawfully withheld “its answers to
inquiries from U.S. Senator Kyrsten Sinema’s staff, White House communications staff,
and the Government Accountability Office (“GAO”). (Doc. 51 at 9-10). Congress is not
an agency under the FOIA, so answers to inquiries from congressional staffers do not fall
under the Exemption 5 deliberative process privilege. See Mayo, 9 F.3d at 1451. Thus,
the Department must release the Department’s response to the inquiry from Senator
Sinema’s staff in Document 95.
Also, the GAO is within the legislative branch, so is not considered an agency
within the meaning of the FOIA. However, the Department lawfully withheld the
information related to the GAO in document 5 because it contained draft responses that
were antecedent to the Department’s response to GAO and were part of the deliberative
process of finalizing a response to GAO.
The Institute also contends that White House communication staff are not an
agency under the FOIA. (Doc. 51 at 9-10). However, the FOIA specifically states that an
agency includes the “executive branch of the Government (including the Executive
Office of the President, or any independent regulatory agency[.]” 5 U.S.C. § 552(f)(1).
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The White House Communications Office is within the Executive Office of the President,
so the Department lawfully withheld the challenged information in Document 94 as an
inter-agency communication.
f. Email Subject Lines
The Institute contends that the Department wrongly withheld email subject lines
because subject lines of emails typically fall outside of the deliberative process privilege
of Exemption 5. (Doc. 51 at 10); see Pub. Citizen, Inc. v. U.S. Dep’t of Educ., 388 F.
Supp. 3d 29 (D.D.C. 2019) (collecting cases); see also Clarke v. Am. Commerce Nat’l
Bank, 974 F.2d 127, 129 (9th Cir. 1992).
The Department contends that it withheld subject lines of certain emails because it
would reveal deliberative material, attorney-client communications, and/or
attorney-work product including: (1) specific recommendations and/or
strategy under discussion; (2) specific aspects of the GCU investigation
being discussed by agency attorneys; (3) the nature of the issues for which
FSA sought legal advice; and (4) the nature of the strategic discussions.
(Doc. 50 at 18). However, the Department does not cite any case law that supports its
proposition that it lawfully withheld the email subject lines. (See Id.)
The Court agrees with the Institute that subject lines of emails are generally not
exempt from disclosure in FOIA cases, except if the subject line of the email is
sufficiently detailed that the redacted information would reveal the motive for seeking
legal advice under the attorney-client privilege. Pub. Citizen, Inc., 388 F. Supp. 3d at 42.
Further, the Institute contends that subject lines of emails are not draft documents,
and that the Department has failed to prove how email subject lines relate to the process
by which policies are formulated. (Doc. 26 at 8); see Maricopa Audubon Soc., 108 F.3d
at 1093. However, the court notes that the title of a document can be withheld under the
deliberative process privilege if the release of the document’s title “would expose the
agency’s internal deliberations in such a way that would discourage candid discussion
and effective decisionmaking.” Lahr, 569 F.3d at 983.
The Court addresses the disputed email subject lines below:
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24
25
26
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28
Document Exemption(s)
Applied to Email
Subject Lines
Justification Plaintiff’s
Reason Why
Exemption
Should Not
Apply
Court’s
Determination
5 (b)(5)-deliberative
process privilege
“indicates the
specific GAO
questions to
which the draft
responses
pertained”
(Doc. 50-1 at
5).
Subject lines of
emails are not
drafts.
Maricopa
Audubon Soc.,
108
F.3d at 1093;
(Doc. 26 at
20).
The withholding is
improper because
the Department
does not adequately
explain how a
specific question
from GAO is
deliberative. Also,
the GAO is not an
agency under the
FOIA.
11 (b)(5)-deliberative
process privilege
“could reveal
the reason for
the strategic
discussions
concerning the
GCU
investigation”
(Id. at 7).
Subject lines of
emails are not
drafts. Id.; (Id.)
This is an improper
withholding
because “[a]gencies
must concretely
explain how
disclosure would—
not ‘could’
adversely impair
internal
deliberations.”
Reps. Comm. For
Freedom of the
Press, 3 F.4th at
369-70.
23 (b)(5)-deliberative
process privilege
& attorney-client
privilege
“disclosure of
this information
would reveal
the specific
aspect of the
GCU
investigation
being discussed
by FSA and
OGC attorneys”
(Id. at 13).
Subject lines of
emails are not
drafts. Id.; (Id.
at 21).
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
would discourage
candid discussion
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and effective
decisionmaking.”
Id.
24 (b)(5)-deliberative
process privilege
“the disclosure
of this
information
would reveal
the specific
aspect of the
GCU
investigation
being discussed
by FSA and
OGC attorneys”
(Id. at 15).
Subject lines of
emails are not
drafts. Id.; (Id.)
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
would discourage
candid discussion
and effective
decisionmaking.”
Id.
26 (b)(5)-deliberative
process privilege;
attorney-client
privilege
“reveal the
specific nature
of the
discussion” (Id.
at 17).
Subject lines of
emails are not
drafts. Id.; (Id.)
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
would discourage
candid discussion
and effective
decisionmaking.”
Id. Also, disclosure
of the email subject
line would expose
the subject matter
of an attorney-
client
communication.
31 (b)(5)-deliberative
process privilege
“Disclosure of
this information
Subject lines of
emails are not
Proper withholding
because the
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& attorney-client
privilege
would reveal
the nature of the
issue about
which FSA
intended to seek
OGC’s legal
advice, which
would have a
chilling effect
on the attorney-
client
relationship
between OGC
and
FSA….Disclos
ure of this
information
would also have
a chilling effect
on frank
discussions
between FSA
employees
concerning
ongoing FSA
investigations.”
(Id. at 19).
drafts. Id.; (Id.) Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
would discourage
candid discussion
and effective
decisionmaking.”
Id. Also, the email
subject line is
exempt from
disclosure under the
attorney-client
privilege.
33 (b)(5)-deliberative
process privilege
& attorney-work-
product privilege
“to prevent the
reveal of the
specific subject
on which [the
Department
employee] was
providing his
thoughts and
recommendatio
ns” (Id. at 20).
Subject lines of
emails are not
drafts. Id.; (Id.
at 22).
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
would discourage
candid discussion
and effective
decisionmaking.”
Id.
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35 (b)(5)-deliberative
process privilege
“the subject line
of each of the
emails in this
exchange
because the
release of that
information
would reveal
the specific
issue about
which FSA
attorneys
contacted FTC
attorneys
concerning the
GCU
investigation”
(Id. at 21).
Subject lines of
emails are not
drafts. Id.; (Id.)
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
would discourage
candid discussion
and effective
decisionmaking.”
Id.
37 (b)(5)-deliberative
process privilege
“the release of
that information
would reveal
the specific
issue [they]
were
discussing” (Id.
at 22).
Subject lines of
emails are not
drafts. Id.; (Id.)
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
would discourage
candid discussion
and effective
decisionmaking.”
Id.
42 (b)(5)-deliberative
process privilege
“the redacted
material would
reveal the
specific topics
of discussion
concerning the
GCU (and
another FSA
matter
Subject lines of
emails are not
drafts. Id.; (Id.)
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
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involving an
unrelated
institution)” (Id.
at 25).
deliberations in
such a way that
would discourage
candid discussion
and effective
decisionmaking.”
Id.
45 (b)(5)-deliberative
process privilege
“concern a draft
recommendatio
n by FSA’s
Investigations
Group” (Id. at
26-27).
Subject lines of
emails are not
drafts. Id.; (Id.)
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
would discourage
candid discussion
and effective
decisionmaking.”
Id.
46 (b)(5)-deliberative
process privilege
“[W]ithheld the
contents of
emails, and part
of the subject
line of ED
withheld the
contents of
emails, and part
of the subject
line of emails,
between
Madaio and
Donoghue that
concern a draft
recommendatio
n
by FSA’s
Investigations
Group.” (Id. at
27).
Subject lines of
emails are not
drafts. Id.; (Id.)
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
would discourage
candid discussion
and effective
decisionmaking.”
Id.
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58 (b)(5)-deliberative
process privilege
“would reveal
the specific
contents of the
draft letter” (Id.
at 35).
Subject lines of
emails are not
drafts. Id.; (Id.)
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
would discourage
candid discussion
and effective
decisionmaking.”
Id.
60 (b)(5)-deliberative
process privilege
“would reveal
the specific
contents of the
letter” (Id. at
36).
Subject lines of
emails are not
drafts. Id.; (Id.
at 23).
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
would discourage
candid discussion
and effective
decisionmaking.”
Id.
99 (b)(5)-deliberative
process privilege
“would reveal
the specific
nature of some
of the strategic
discussions”
(Id. at 67).
Subject lines of
emails are not
drafts. Id.; (Id.)
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
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would discourage
candid discussion
and effective
decisionmaking.”
Id.
119 (b)(5)-deliberative
process privilege,
attorney-client
privilege,
attorney-work
product privilege
“withheld in
full the contents
of emails
between
Madaio and
Crim
concerning the
GCU
investigation, as
well as the
subject line of
each email
between them. .
. . because the
emails
contain
strategic
discussions
about the GCU
investigation.”
(Id. at 78).
Subject lines of
emails are not
drafts. Id.; (Id.)
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
would discourage
candid discussion
and effective
decisionmaking.”
Id.
125 (b)(5)-deliberative
process privilege
“the release of
such
information
would reveal
the nature of the
Department’s
strategic
discussions
about the GCU
fine action
letter” (Id. at
83).
Subject lines of
emails are not
drafts. Id.; (Id.
at 24)
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
would discourage
candid discussion
and effective
decisionmaking.”
Id.
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128 (b)(5)-deliberative
process privilege
“the withheld
material reveals
the nature of the
strategic
discussions
about the GCU
investigation”
(Id. at 86).
Subject lines of
emails are not
drafts. Id.; (Id.)
Proper withholding
because the
Department
adequately explains
how the release of
the email subject
line would “expose
the agency’s
internal
deliberations in
such a way that
would discourage
candid discussion
and effective
decisionmaking.”
Id.
Accordingly, the Department met its burden to establish that most of the email
subject lines were properly withheld. However, the Department must release the email
subject lines for Document Nos. 5 and 11.
g. Policy decision
The Institute also contends that the fine against GCU is not a policy decision by
the Department, but rather, it is an enforcement decision that is not subject to the
deliberative process privilege. (Doc. 51 at 9-10). However, as the Department contends,
the deliberative process privilege “covers ‘documents reflecting advisory opinions,
recommendations, and deliberations that are part of a process by which [g]overnment
decisions and policies are formulated[.]’ ” Klamath, 532 U.S. at 8 (citing Sears, 421 U.S.
at 150); (Doc. 50 at 15). Accordingly, even though the Department’s fine action against
GCU may be better described as an enforcement decision, and not a policy decision, it is
still covered under the Exemption 5 deliberative process privilege.
4. Exemption 7(A)
The Institute contends that it substantially prevailed on its challenge to the
Department’s withholdings under Exemption 7(A). (Doc. 51 at 11). Specifically, the
Institute argues that after this Court ordered the Department to re-process and re-review
its withholdings the Department removed some of the prior references to Exemption
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7(A), so they substantially prevailed in their challenge to the Department’s withholdings
under exemption 7(A). (Id.) The Department continues to withhold material in documents
5, 6, and 105 under Exemption 7(A) and the Institute does not challenge these
withholdings. (Doc. 50 at 8).
The Department previously claimed that Exemption 7(A) applies to records
pertaining to the GCU fine action. (Doc. 22 at 13-16). Exemption 7(A) applies to law
enforcement records, the release of which “could reasonably be expected to interfere with
enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). To apply Exemption 7(A), the
Department must provide that “disclosure (1) could reasonably be expected to interfere
with (2) enforcement proceedings that are (3) pending or reasonably anticipated.”
Citizens for Resp. & Ethics in Wash. v. Dep’t of Just., 746 F.3d 1082, 1096 (D.C. Cir.
2014); see also Lewis, 823 F.2d at 379 (an agency must prove that documents would
interfere with pending enforcement proceedings).
Additionally, the FOIA allows courts to assess “reasonable attorney fees and other
litigation costs” against the federal government when a plaintiff has “substantially
prevailed.” § 552(a)(4)(E)(i). This occurs when a plaintiff obtains information as part of a
FOIA suit through either “a judicial order, or an enforceable written agreement or consent
decree” or “a voluntary or unilateral change in position by the agency.” Id.; §
552(a)(4)(E)(ii). If a plaintiff substantially prevails, the plaintiff is eligible for fees. Id.; §
552(a)(4)(E).
Here, the Court does not find that the Institute is entitled to attorney fees for
substantially prevailing on its challenge to the Department’s withholding under
Exemption 7(A). At the time the Department applied Exemption 7(A), the Department
demonstrated that “disclosure (1) could reasonably be expected to interfere with (2)
enforcement proceedings that are (3) pending or reasonably anticipated.” Citizens for
Resp. & Ethics in Wash., 746 F.3d at 1096. The Department withheld, under Exemption
7(A), from Plaintiff information concerning the Department’s open investigation
concerning GCU. (Doc. at 16). The Court agrees with the Department that the
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information if released, at the time, would place the Department at a disadvantage in
defending GCU’s appeal. (Id.); see N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S.
214, 224 (1978). Also, the Department removed its use of Exemption 7(A) once the fine
action against GCU was dismissed, and there was no Court order that held that the
Department’s prior withholdings under Exemption 7(A) were improper. Moreover, the
Department properly invoked Exemption 7(A) because disclosure could reasonably be
expected to interfere with the Department’s ability to defend against GCU’s appeal of the
fine action that was ongoing at the time the Department invoked the exemption.
Accordingly, the Institute did not substantially prevail on its challenge to the
Department’s invocation of Exemption 7(A) and, therefore, the Institute is not entitled to
attorney fees and costs.
B. Statutory Time Period
The Article III requirements for a specific FOIA request claim and a pattern or
practice claim differ from each other. Hajro v. U.S. Citizenship & Immigr. Servs., 811
F.3d 1086, 1102-03 (9th Cir. 2016). The Ninth Circuit recognizes “two separate claims
that complainants can bring against an agency under FOIA.” Id. First, a plaintiff can
bring suit that attacks a specific agency action for (1) “improperly” (2) “withheld” (3)
“agency records.” Id. at 1103 (quoting Kissinger v. Reps. Comm. for Freedom of the
Press, 445 U.S. 136, 150 (1980)). “For specific FOIA request claims, after the agency
produces all non-exempt documents and the court confirms the agency’s proper
invocation of an exemption, the specific FOIA claim is moot because the injury has been
remedied.” Hajro, 811 F.3d at 1103 (citation omitted).
Second, a plaintiff may assert a FOIA pattern or practice claim, which is a “claim
that an agency policy or practice will impair the party’s lawful access to information in
the future.” Id. (citation omitted) (emphasis in original); see e.g., Mayock v. Nelson, 938
F.2d 1006 (9th Cir. 1991) (recognizing a pattern or practice claim for unreasonable delay
in responding to FOIA requests).
Where a plaintiff alleges a FOIA pattern or practice violation and seeks
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declaratory or injunctive relief, regardless of whether the specific FOIA requests have
been mooted, a plaintiff has shown injury in fact if he demonstrates the three following
prongs: “(1) the agency’s FOIA violation was not merely an isolated incident, (2) the
plaintiff was personally harmed by the alleged policy, and (3) the plaintiff himself has a
sufficient likelihood of future harm by the policy or practice.” Hajro, 811 F.3d at 1103.
“In other words, a pattern or practice claim is not necessarily mooted by an agency’s
production of documents.” Id.; Payne Enters., Inc., 837 F.2d at 491 (holding that a pattern
or practice claim is viable “[s]o long as an agency’s refusal to supply information
evidences a policy or practice of delayed disclosure or some other failure to abide by the
terms of the FOIA, and not merely isolated mistakes by agency officials”). The Supreme
Court has held that “[p]ast exposure to illegal conduct does not in itself show a present
case or controversy regarding injunctive relief. . .if unaccompanied by any continuing,
present adverse effects.” Lyons, 461 U.S. at 102 (quoting O’Shea v. Littleton, 414 U.S.
488, 495-96 (1974)). Because FOIA’s prescribed relief is injunctive or declaratory,
generally a plaintiff alleging a pattern or practice claim under FOIA must also meet this
future harm requirement. See 5 U.S.C. § 552(a)(4)(B). Moreover, because the Institute
seeks injunctive relief, the Institute must show a likelihood of future harm caused by the
policy or practice. Lyons, 461 U.S. at 105.
Additionally, in its complaint, a plaintiff must give the defendant fair notice of its
claims and the grounds upon which its claims rest. Fed. R. Civ. P. 8; Pickern v. Pier 1
Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006). Rule 8’s pleading standard is
“liberal,” but still requires that the defendant receives notice as to what is at issue in the
case. Id.; Am. Timber & Trading Co. v. First Nat’l Bank of Oregon, 690 F.2d 781, 786
(9th Cir. 1982). “[S]ummary judgment is not a procedural second chance to flesh out
inadequate pleadings.” Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992
(9th Cir. 2006). If a plaintiff does not plead a claim in its complaint, then it is “not
properly before the district court, and fails.” Earth Island Inst. v. U.S. Forest Serv., 87
F.4th 1054, 1073 (9th Cir. 2023) (To hold the [defendant] responsible for predicting an
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unalleged claim would be to expect the [defendant]. . .to act as mind readers and foresee
all possible unalleged claims that may fall under a complaint.”).
In this case, as the Department points out, neither the Institute’s Amended
Complaint nor the Institute’s Motion for Summary Judgment alleges a pattern or practice
violation. (Doc. 50 at 8); (see Docs. 14; 18). The Institute alleged in its Reply for the first
time that the Department engaged in a pattern or practice violation of FOIA’s time limits.
(Doc. 26 at 3). The Institute contends that in its Amended Complaint it stated a pattern
and practice claim when it stated that the Department sent out the “[a]cknowledgement
[that] advised that the current average processing time. . .is 185 business days.” (Docs. 51
at 13; 14 at 4).
The Court finds that the Institute’s argument that it stated a pattern or practice
claim in its Amended Complaint fails. Nothing even remotely resembling a “pattern or
practice” claim appears within the four corners of the Institute’s Complaint. In fact, the
phrase “pattern or practice” does not appear anywhere in Plaintiff’s Amended Complaint.
(See Doc. 14). It is established law that if a plaintiff does not plead a claim in its
complaint, then it is “not properly before the district court, and fails.” Earth Island Inst.,
87 F.4th at 1073. Thus, the Court declines to grant the Institute declaratory relief that the
Department failed to respond within FOIA’s statutory time limits based on a pattern and
practice violation.
IV. CONCLUSION
For the preceding reasons, the Court grants in-part and denies in-part the parties’
cross-motions for summary judgment (Docs. 18, 22). The Court grants the Institute’s
Motion on the Department’s withholdings under the deliberative process privilege for any
notes or materials for press briefings or draft press statements that are not also exempted
under the attorney-client privilege, the withheld email subject lines not also exempted
under the attorney-client privilege; and any response to an inquiry from U.S. Senator
Kyrsten Sinema’s staff. (Doc. 18). The Court denies the remainder of the Institute’s
claims. (Id.)
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Accordingly, for the reasons set forth,
IT IS ORDERED granting in-part and denying in-part Plaintiff’s Motion for
Summary Judgment. (Doc. 18).
IT IS FURTHER ORDERED granting in-part and denying in-part
Defendant’s Cross-Motion for Summary Judgment. (Doc. 22).
IT IS FURTHER ORDERED directing Defendant to release the following to
Plaintiff: any notes or materials for press briefings or draft press statements in Docs. 1, 2,
3, 61, and 101; the email subject lines in Docs. 5 and 11; and any response to an inquiry
from U.S. Senator Kyrsten Sinema’s staff in Doc. 95.
IT IS FURTHER ORDERED denying Plaintiff’s request for attorney fees.
IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment
accordingly and terminate this case.
Dated this 25th day of February, 2026.
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