Case Detail

FOIA Project Annotation: Judge James Boasberg has ruled that the Department of Homeland Security properly withheld some records under Exemption 5 (privileges) in response to Joshua Reinhard's request for records concerning the Coast Guard's investigation of a hostile workplace at the Eighth Coast Guard District in New Orleans that resulted in Reinhard's separation but that the agency failed to justify some of its claims of the deliberative process privilege and the attorney-client privilege. The agency disclosed 1,069 pages in response to Reinhard's request, withholding information under Exemption 5 as well as Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records). Reinhard filed suit and by the time Boasberg ruled, the only challenges remaining pertained to Exemption 5. Boasberg found first that the documents withheld under the deliberative process privilege â€" two investigative reports and two email chains â€" were predecisional. He explained that "both investigative reports at issue â€" one concerning Plaintiff's alleged retaliation and the other probing the command climate â€" concern and predate the Coast Guard's ultimate action. For both reports, Defendant attests that the Coast Guard issued its final decisions regarding the underlying allegations in later and separate memos, which are 'not reflective' of the preliminary reports. Although DHS has not said directly whether either of these final agency actions was, in fact, Plaintiff's termination â€" certainly the response to the command-climate investigation does not appear to be â€" it need not be so explicit to satisfy its burden. Defendant has identified the relevant decisionmaking process at issue: the manner in which the Coast Guard determined to respond to the issues and allegations that spurred the investigations. No more is required at this step." Having found the four disputed documents were deliberative as well, Boasberg rejected Reinhard's claim that the assembled factual material was not deliberative and needed to be disclosed. He noted that "the administrative investigation officer compiled these facts as a recommendation to the Coast Guard's ultimate decisionmakers on personnel matters. For such issues, the factual groundwork is intimately connected with the Coast Guard's ultimate action." He observed that "when final decisionmakers rely on others to condense a mass of available information into a summary or set of factual findings that the staff thinks important to the final decisionmaker, the deliberative privilege applies." Boasberg went on to point out the agency's culling of facts assertion "does not extend â€" at least not with the same force â€" to the witness statements, interview notes, and related material." He indicated that "certainly the witness statements, which appear to have been written by the witnesses themselves, do not reflect 'personal opinions. . .of the investigating officer,' contrary to what the Coast Guard's sole statement on this count attests" He noted that the agency had not shown that three documents were properly protected by the deliberative process privilege and ordered the agency to disclose them. Turning to the two email chains, Boasberg noted that "in this thread, the Coast Guard thus feeds the issue up the chain of command. This is precisely the type of information that permits a court to conclude that a document qualifies as deliberative." Boasberg also rejected Reinhard's claim that the reports reflected the agency's final decision. Instead, he observed that "a recommendation memo laying out the bases for a possible decision and emails discussing how to respond to a situation do not lose their status as deliberative simply because the decisionmaker follows the recommendation." Reinhard challenged the agency's attorney-client privilege claims by questioning whether or not the purpose of the communication was to ask for legal advice. Boasberg found the Coast Guard had met this threshold, noting that "the relevant communications from an attorney to a member of the Coast Guard all involve, often explicitly, material provided by the Coast Guard to the attorney for the purpose of the legal issue mentioned in the Vaughn Index. That is sufficient to satisfy this element of the privilege." Questioning the purpose of a communications between two employees, neither of whom were attorneys, Boasberg observed that "to sustain the privilege, the Agency need not show that the provision of legal advice was the communication's sole purpose; it does, however, need to demonstrate that securing legal advice was a 'primary purpose;' of the agency's communication. The fact that the attorneys are not direct recipients thus gives the Court some doubt about its legal purpose. More is thus needed to sustain the privilege." Boasberg indicated that the agency had not met its burden for withholding this email. Boasberg agreed with the agency that it had for the most part shown that the emails claimed under the attorney-client privilege had been kept appropriately confidential. However, finding that several emails did not explain the identity of an individual receiving privileged emails, Boasberg indicated those emails were not privileged.
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Attorney-client privilege

Date Filed	Doc #	Docket Text
2018-06-19	1	COMPLAINT against Department of Homeland Security ( Filing fee $ 400 receipt number 0090-5543130) filed by JOSHUA L. REINHARD. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Montalvo, Eric) (Entered: 06/19/2018)
2018-06-20	2	ERRATA re 1 Complaint filed by JOSHUA L. REINHARD.(Montalvo, Eric) Modified on 7/3/2018 (zrdj). (Entered: 06/20/2018)
2018-06-20		Case Assigned to Judge James E. Boasberg. (zsb) (Entered: 06/20/2018)
2018-06-20	3	SUMMONS (3) Issued Electronically as to DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zsb) (Entered: 06/20/2018)
2018-08-06	4	NOTICE of Appearance by Damon William Taaffe on behalf of DEPARTMENT OF HOMELAND SECURITY (Taaffe, Damon) (Entered: 08/06/2018)
2018-09-04	5	ANSWER to Corrected Complaint 2 by DEPARTMENT OF HOMELAND SECURITY.(Taaffe, Damon); Modified to add link on 9/5/2018 (tth). (Entered: 09/04/2018)
2018-09-04		MINUTE ORDER: The Court ORDERS that the parties shall meet, confer, and submit a joint proposed briefing schedule by September 18, 2018. So ORDERED by Judge James E. Boasberg on 9/4/2018. (lcjeb2) (Entered: 09/04/2018)
2018-09-04		Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 9/18/2018. (znbn) (Entered: 09/10/2018)
2018-09-19	6	Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY. (Taaffe, Damon) (Entered: 09/19/2018)
2018-09-19		MINUTE ORDER: The Court ADOPTS the parties' 6 Joint Status Report and ORDERS that they shall file a further Joint Status Report by November 19, 2018. So ORDERED by Judge James E. Boasberg on 9/19/2018. (lcjeb2) (Entered: 09/19/2018)
2018-09-19		Set/Reset Deadlines: Joint Status Report due by 11/19/2018. (znbn) (Entered: 09/19/2018)
2018-11-19	7	Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY. (Taaffe, Damon) (Entered: 11/19/2018)
2018-11-19		MINUTE ORDER: The Court ADOPTS the parties' 7 Joint Status Report and Briefing Schedule and ORDERS that: 1) Defendant shall file its motion for summary judgment by December 20, 2018; 2) Plaintiff shall file his cross-motion for summary judgment and opposition to Defendant's motion by January 18, 2019; 3) Defendant shall file its opposition to Plaintiff's cross-motion and reply in support of its motion by February 1, 2019; and 4) Plaintiff shall file his reply in support of his cross-motion by February 8, 2019. So ORDERED by Judge James E. Boasberg on 11/19/2018. (lcjeb1) (Entered: 11/19/2018)
2018-11-20		Set/Reset Deadlines: Summary Judgment motions due by 12/20/2018. Response to Motion for Summary Judgment due by 1/18/2019. Reply to Motion for Summary Judgment due by 2/1/2019. Replies due by 2/8/2019. (znbn) (Entered: 11/21/2018)
2018-12-19	8	MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order, # 2 Statement of Facts, # 3 Memorandum in Support, # 4 Houck Decl. with Exhibits)(Taaffe, Damon) (Entered: 12/19/2018)
2019-01-11	9	Consent MOTION for Extension of Time to by JOSHUA L. REINHARD (Attachments: # 1 Proposed Order)(Montalvo, Eric) (Entered: 01/11/2019)
2019-01-15		MINUTE ORDER: The Court GRANTS Plaintiff's 9 Motion for Extension of Time and ORDERS that: 1) Plaintiff shall file his cross-motion for summary judgment and opposition to Defendant's motion by January 25, 2019; 2) Defendant shall file its opposition to Plaintiff's cross-motion and reply in support of its motion by February 8, 2019; and 3) Plaintiff shall file his reply in support of his cross-motion by February 15, 2019. So ORDERED by Judge James E. Boasberg on 1/15/2019. (lcjeb2) (Entered: 01/15/2019)
2019-01-15		Set/Reset Deadlines: Summary Judgment motions due by 1/25/2019. Response to Motion for Summary Judgment due by 2/8/2019. Reply to Motion for Summary Judgment due by 2/15/2019. (znbn) (Entered: 01/17/2019)
2019-01-25	10	RESPONSE re 8 MOTION for Summary Judgment filed by JOSHUA L. REINHARD. (Attachments: # 1 Memorandum in Support Memorandum of Points and Authorities, # 2 Statement of Facts Statement of Facts, # 3 Text of Proposed Order Proposed Order)(Montalvo, Eric) (Entered: 01/25/2019)
2019-01-25	11	Cross MOTION for Summary Judgment by JOSHUA L. REINHARD (Attachments: # 1 Memorandum in Support Memorandum of Points and Authorities, # 2 Statement of Facts Statement of Facts, # 3 Text of Proposed Order Proposed Order)(Montalvo, Eric) (Entered: 01/25/2019)
2019-01-31	12	Consent MOTION for Extension of Time to File Response/Reply as to 11 Cross MOTION for Summary Judgment , 8 MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY (Taaffe, Damon) (Entered: 01/31/2019)
2019-01-31		MINUTE ORDER: The Court ORDERS that: 1) Defendant's Consent 12 Motion for Extension of Time to File is GRANTED; 2) Defendant shall file its Opposition to Plaintiff's Cross-Motion for Summary Judgment and its Reply in Support of its Motion for Summary Judgment by February 22, 2019; and 3) Plaintiff shall file his Reply in support of his Cross-Motion for Summary Judgment by March 1, 2019. So ORDERED by Judge James E. Boasberg on 1/31/2019. (lcjeb3) (Entered: 01/31/2019)
2019-01-31		Set/Reset Deadlines: Response to Motion for Summary Judgment due by 2/22/2019. Reply to Motion for Summary Judgment due by 3/1/2019. (znbn) (Entered: 02/01/2019)
2019-02-15	13	NOTICE OF SUBSTITUTION OF COUNSEL by Christopher Charles Hair on behalf of All Defendants (Hair, Christopher) (Entered: 02/15/2019)
2019-02-22	14	Memorandum in opposition to re 11 Cross MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Statement of Facts, # 2 Declaration of Jesse Houck and updated Vaughn index)(Hair, Christopher) (Entered: 02/22/2019)
2019-02-22	15	REPLY to opposition to motion re 8 MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Declaration of Jesse Houck and updated Vaughn index)(Hair, Christopher) (Entered: 02/22/2019)
2019-03-01	16	REPLY to opposition to motion re 11 Cross MOTION for Summary Judgment filed by JOSHUA L. REINHARD. (Montalvo, Eric) (Entered: 03/01/2019)
2019-03-05		MINUTE ORDER: The Court ORDERS that Defendant shall produce to the Court for in camera review by March 11, 2019, clean and redacted copies of the 16 documents challenged in Plaintiff's 16 Reply. So ORDERED by Judge James E. Boasberg on 3/5/2019. (lcjeb2) (Entered: 03/05/2019)
2019-03-05		Set/Reset Deadlines: In-Camera Submission due by 3/11/2019. (znbn) (Entered: 03/05/2019)
2019-03-11	17	NOTICE of In Camera Submission by DEPARTMENT OF HOMELAND SECURITY (Hair, Christopher) (Entered: 03/11/2019)
2019-07-11	18	ORDER: The Court ORDERS that: (1) Defendant's 8 Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART; (2) Plaintiff's 11 Cross-Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART; (3) Defendant may withhold all disputed documents except those stamped USCG 80, 81, 243, 540-97, 695, and 743-75, which must be turned over to Plaintiff; and (4) Judgment is ENTERED in favor of each side in part consistent with the Memorandum Opinion. Signed by Judge James E. Boasberg on 7/11/2019. (lcjeb2) (Entered: 07/11/2019)
2019-07-11	19	MEMORANDUM OPINION re 18 Order. Signed by Judge James E. Boasberg on 7/11/2019. (lcjeb2) (Entered: 07/11/2019)
2019-07-23	20	Consent MOTION for Extension of Time to file a motion for Attorneys Fees by JOSHUA L. REINHARD (Attachments: # 1 Text of Proposed Order)(Montalvo, Eric) (Entered: 07/23/2019)
2019-07-23		MINUTE ORDER GRANTING Plaintiff's 20 Motion for Extension of Time. The Court ORDERS that any motion for attorney fees shall be filed by August 26, 2019. So ORDERED by Judge James E. Boasberg on 7/23/2019. (lcjeb2) (Entered: 07/23/2019)
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