Case Detail

FOIA Project Annotation: Judge Henry Kennedy has ruled that the Federal Housing Finance Agency properly withheld three documents under Exemption 5 (privileges), but had not yet shown whether or not portions of two documents could be released after redaction. Vern McKinley asked the FHFA for records pertaining to its decision to establish a conservatorship for Fannie Mae and Freddie Mac rather than putting the two institutions into receivership. The Office of General Counsel found three responsive documents, but withheld all of them under Exemption 5 claiming both the deliberative process privilege and the attorney work-product privilege. McKinley argued that the documents could not be deliberative unless the agency could show disclosure would harm its decisionmaking process. Citing the recent decision in McKinley's D.C. Circuit case against the Federal Reserve, McKinley v. Board of Governors of the Federal Reserve System (D.C. Cir. 2011), Kennedy pointed out that "the D.C. Circuit explained that 'Congress enacted FOIA Exemption 5. . .precisely because it determined that disclosure of material that is both predecisional and deliberative does harm an agency's decisionmaking process.' The D.C. Circuit further explained that it would be impractical for courts to determine on a case-by-case basis whether the release of predecisional materials would be harmful. It is thus clear that McKinley's position rests on an erroneous understanding of what must be shown for the deliberative process privilege to apply." Kennedy then noted that the FHFA had not undertaken a segregability analysis because it claimed the documents were protected by the attorney-work product privilege as well, which is not subject to a segregability analysis. McKinley contended that the documents were written to explain the agency's decision, not in preparation of litigation. But the agency responded that the documents also were created in case Fannie or Freddie brought a legal challenge. Kennedy noted that "after reviewing the Vaughn Index, the Court cannot discern the proportion of the documents' contents that is devoted to the possibility of litigation, or the depth of that discussion. Likewise, the FHFA's affidavits are insufficient to establish that documents would have been creased in essentially similar form irrespective of the litigation." He ordered the agency to submit them for an in camera review.
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Segregability - Disclosure of all non-exempt records

Date Filed	Doc #	Docket Text
2010-07-12	1	COMPLAINT against FEDERAL HOUSING FINANCE AUTHORITY ( Filing fee $ 350, receipt number 4616031154) filed by VERN MCKINLEY. (Attachments: # 1 Civil Cover Sheet)(dr) (Entered: 07/13/2010)
2010-07-12		SUMMONS (3) Issued as to FEDERAL HOUSING FINANCE AUTHORITY, U.S. Attorney and U.S. Attorney General (dr) (Entered: 07/13/2010)
2010-07-27	2	SUMMONS Returned Executed by VERN MCKINLEY. FEDERAL HOUSING FINANCE AUTHORITY served on 7/19/2010, answer due 8/18/2010. (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 07/27/2010)
2010-08-11	3	NOTICE of Appearance by Michael Bekesha on behalf of VERN MCKINLEY (Bekesha, Michael) (Entered: 08/11/2010)
2010-08-12	4	NOTICE of Appearance by Bradley Heath Cohen on behalf of FEDERAL HOUSING FINANCE AUTHORITY (Cohen, Bradley) (Entered: 08/12/2010)
2010-08-18	5	ANSWER to 1 Complaint by FEDERAL HOUSING FINANCE AUTHORITY.(Cohen, Bradley) (Entered: 08/18/2010)
2010-08-20	6	ORDER directing the parties to submit a joint case management report no later than September 9, 2010. Signed by Judge Henry H. Kennedy, Jr. on August 20, 2010. (NP) (Entered: 08/20/2010)
2010-08-20		Reset Deadlines: Case management report due by 9/9/2010. (tj ) (Entered: 08/20/2010)
2010-09-07	7	STATUS REPORT Joint Case Management Report by FEDERAL HOUSING FINANCE AUTHORITY. (Cohen, Bradley) (Entered: 09/07/2010)
2010-09-10		MINUTE ORDER. The Court adopts and the parties shall be bound by the briefing schedule for dispositive motions proposed in their 7 Joint Case Management Report. Accordingly, defendant's summary judgment motion is due on October 18, 2010; plaintiff's opposition and cross-motion are due on November 19, 2010; defendant's reply in support of its motion and opposition to plaintiff's cross-motion are due on December 6, 2010; and plaintiff's reply in support of its cross-motion is due on December 22, 2010. Signed by Judge Henry H. Kennedy, Jr. on September 10, 2010. (NP) (Entered: 09/10/2010)
2010-10-13	8	Joint MOTION for Extension of Time to File Summary Judgment Briefs by FEDERAL HOUSING FINANCE AUTHORITY (Attachments: # 1 Text of Proposed Order)(Cohen, Bradley) (Entered: 10/13/2010)
2010-10-14		MINUTE ORDER granting 8 Joint Motion for Extension of Time. Accordingly, defendant's summary judgment motion is due November 8, 2010; plaintiff's opposition and cross-motion are due on December 17, 2010; defendant's reply in support of its motion and opposition to cross-motion are due on January 21, 2011; and plaintiff's reply in support of its cross-motion is due on February 4, 2011. Signed by Judge Henry H. Kennedy, Jr. on October 14, 2010. (NP) (Entered: 10/14/2010)
2010-11-08	9	MOTION for Summary Judgment by FEDERAL HOUSING FINANCE AUTHORITY (Attachments: # 1 Memorandum in Support of Defendant's Motion for Summary Judgment, # 2 Declaration of David A. Lee, # 3 Declaration of Frank R. Wright, # 4 Declaration of Alfred M. Pollard, # 5 Statement of Facts, # 6 Text of Proposed Order)(Cohen, Bradley) (Entered: 11/08/2010)
2010-12-17	10	Memorandum in opposition to re 9 MOTION for Summary Judgment filed by VERN MCKINLEY. (Bekesha, Michael) (Entered: 12/17/2010)
2010-12-17	11	Cross MOTION for Summary Judgment by VERN MCKINLEY (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Bekesha, Michael) (Entered: 12/17/2010)
2011-01-21	12	REPLY to opposition to motion re 9 MOTION for Summary Judgment filed by FEDERAL HOUSING FINANCE AUTHORITY. (Cohen, Bradley) Modified link on 1/24/2011 (znmw, ). (Entered: 01/21/2011)
2011-01-21	13	Memorandum in opposition to re 11 Cross MOTION for Summary Judgment filed by FEDERAL HOUSING FINANCE AUTHORITY. (See Docket Entry 12 to view document. Counsel is reminded to filed oppositions and replies as separate docket entries in future). (znmw, ) (Entered: 01/24/2011)
2011-02-02	14	REPLY to opposition to motion re 11 Cross MOTION for Summary Judgment filed by VERN MCKINLEY. (Bekesha, Michael) (Entered: 02/02/2011)
2011-06-07	15	MEMORANDUM OPINION AND ORDER. Signed by Judge Henry H. Kennedy, Jr. on June 7, 2011. (lchhk3) (Entered: 06/07/2011)
2011-06-07		Set Deadlines: In-Camera Submission due by 7/1/2011. (tj ) (Entered: 06/07/2011)
2011-06-29	16	NOTICE of Filing of Documents for In Camera Inspection by FEDERAL HOUSING FINANCE AUTHORITY (Cohen, Bradley) (Entered: 06/29/2011)
2011-08-26	17	ORDER finding that Documents 2 and 3 are not protected by the work-product privilege and requiring defendant to identify and disclose to plaintiff any portion of those documents that is reasonably segregable from the material therein that is protected by the deliberative-process privilege. Signed by Judge Henry H. Kennedy, Jr. on August 26, 2011.(lchhk1) (Entered: 08/26/2011)
2011-09-16	18	STATUS REPORT by FEDERAL HOUSING FINANCE AUTHORITY. (Attachments: # 1 Exhibit)(Cohen, Bradley) (Entered: 09/16/2011)
2011-12-15	19	Case reassigned to Judge Barbara Jacobs Rothstein. Judge Henry H. Kennedy no longer assigned to the case. (ds) (Entered: 12/16/2011)
2012-01-06	20	STANDING ORDER applicable to this case moving forward. Signed by Judge Barbara Jacobs Rothstein on January 6, 2012. (lchhk2) (Entered: 01/06/2012)
2012-01-25	21	MEMORANDUM OPINION granting 9 Defendant's Motion for Summary Judgment; denying 11 Plaintiff's Motion for Summary Judgment. Signed by Judge Barbara Jacobs Rothstein on January 25, 2012. (lchhk2) (Entered: 01/25/2012)
2012-01-25	22	JUDGMENT in favor of Defendant and against Plaintiff. Signed by Judge Barbara Jacobs Rothstein on January 25, 2012. (lchhk2) (Entered: 01/25/2012)
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