Case Detail

FOIA Project Annotation: A decision by Judge Colleen Kollar-Kotelly provides an interesting discussion of the tensions inherent in the disclosure of records that involve the intersection between Congressional and agency collaboration involving the agency decision-making process. Ruling in a case brought by American Oversight against the Department of Transportation for records concerning communications between Sen. Mitch McConnell (R-KY) and DOT, which was run by McConnell's wife, Elaine Chao, American Oversight argued strenuously that records requested by Congressional staff from an agency were not protected under Exemption 5 (privileges) because they failed to meet the inter- or intra-records threshold requirement. Concerned that American Oversight "might mean to suggest that inquiries from Congress to agencies are not 'agency records' within the meaning of FOIA at all, the Court directed the parties to submit supplemental briefing on the subject." Kollar-Kotelly considered and rejected American Oversight's claim that congressional records were not protected under FOIA because Congress was not subject to FOIA. Instead, she pointed out that "if communications with Congress are not 'agency' records within the meaning of Exemption 5, then they are not records within the meaning of FOIA. In other words, they are not subject to disclosure at all. In that regard, Plaintiff's reading would risk creating a fundamental conflict within FOIA." However, Kollar-Kotelly explained that American Oversight had conceded that DOT had relied upon records received from Congress as part of its own decision-making process. Citing Rockwell International Corp. v. Dept of Justice, 235 F.3d 598 (D.C. Cir. 2001), she pointed out that "communications between an agency and Congress fall squarely within Exemption 5 so long as they are otherwise privileged." She indicated that "for these interbranch communications to be intra- or inter-agency, however, the 'records exchanged' must either have been (1) solicited by the agency, or otherwise received where there is 'some indicia of a consultant relationship between' the interbranch staffs, and (2) the records must have been 'created for the purpose of aiding the agency's deliberative process.'" Kollar-Kotelly explained that the Supreme Court's decision in Dept of Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001), in which the Court held that the deliberative process privilege did not protect discussions involving third parties whose interests were adverse to those of the agency, did nothing to settle when the consultant corollary applied to protect third-party records. She noted that Klamath questioned the continued viability of two D.C. Circuit opinions â€" Ryan v. Dept of Justice, 617 F.2d. 781 (D.C. Cir. 1980), which held that congressional input on procedures for selecting and recommending judicial nominees was protected, and Public Citizen v. Dept of Justice, 111 F.3d 168 (D.C. Cir. 1997), which held that the input of former Presidents on their records at the National Archives was protected even though it could be seen as adversarial. Kollar-Kotelly pointed out that "the Court of Appeals for the District of Columbia continues to apply the consultant corollary doctrine, but the degree to which the Court of Appeals has narrowed the doctrine in response to Klamath is uncertain." She indicated that American Oversight's strongest argument was that "Congressional staff represented their 'Senator's own interests and agenda, and the institutional interests of the legislative branch' as opposed to common interests shared by the respective staffs. If the Court of Appeals now requires that a non-agency interlocutor bring no divergent interest to bear, then those facts would strip the instant communications of Exemption 5 protection." Kollar-Kotelly pointed out that two recent district court decisions involving American Oversight had come to opposite conclusions concerning the continued viability of the consultant corollary doctrine. One decisionâ€"American Oversight v. Dept of Health and Human Services, 380 F. Supp. 3d 45 (D.D.C. 2019) â€" held that "it appears that the law of this Circuit does require that outside consultants 'lack an independent interest' and added that the Vaughn index in the case "established that the Congressional interlocutors did not 'lack' an independent interest." By contrast, the district court judge in American Oversight v. Dept Treasury, 474 F. Supp. 3d 251 (D.D.C. 2020), reached the opposite conclusion, noting that "this Circuit's law [does not] require a non-agency interlocutor to have no interest distinct from that of the agency." Kollar-Kotelly agreed with the district court judge in the American Oversight v. Dept of Treasury decision. She observed that "when discussing draft legislation, members of the two political branches may share the exact same goals and desire to further the exact same piece of legislation." She indicated that "the relevant inquiry should be, whether the two staffs were 'working together' to achieve a common legislative purpose. The record shows, and Plaintiff concedes, that the two staffs were 'working together.' Staffers for Sen. McConnell were considering several pieces of draft legislation and sought DOT staff's assistance in drafting and reviewing that legislation." Nevertheless, Kollar-Kotelly indicated sympathy with American Oversight's concern about how Congress could qualify as consultants to agencies. Calling it "a kind of legal fiction," she noted that "Congressional staff are employed for a separate co-equal branch of government. Characterizing staffers, and even members of Congress, may seem to stretch the consultant corollary doctrine beyond its bounds, but application of the consultant corollary to Congress furthers FOIA's interests even more than its application to private organizations. Even more than private, temporary hires, interbranch staffers 'will not communicate candidly among themselves if each remark is a potential item of discovery and front-page news.'" She observed that "although the doctrine may nominally be called a 'consultant corollary,' communications between Congressional staff and agency staff on draft legislation where they are working towards legislative priorities are still 'agency' documents for the purpose of Exemption 5."
Issues: Agency Record, Exemption 5 - Consultant privilege

Date Filed	Doc #	Docket Text
2018-05-31	1	COMPLAINT against U.S. DEPARTMENT OF TRANSPORTATION ( Filing fee $ 400 receipt number 0090-5508716) filed by AMERICAN OVERSIGHT. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Cafasso, Cerissa) (Entered: 05/31/2018)
2018-05-31	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AMERICAN OVERSIGHT (Cafasso, Cerissa) (Entered: 05/31/2018)
2018-05-31		Case Assigned to Judge Colleen Kollar-Kotelly. (zsth) (Entered: 05/31/2018)
2018-05-31	3	SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF TRANSPORTATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(zsth) (Entered: 05/31/2018)
2018-06-06	4	ORDER ESTABLISHING PROCEDURES FOR CASES ASSIGNED TO JUDGE COLLEEN KOLLAR-KOTELLY. Signed by Judge Colleen Kollar-Kotelly on 06/06/2018. (DM) (Entered: 06/06/2018)
2018-06-07	5	NOTICE of Appearance by Daniel Alexander McGrath on behalf of AMERICAN OVERSIGHT (McGrath, Daniel) (Entered: 06/07/2018)
2018-06-26	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/4/2018. Answer due for ALL FEDERAL DEFENDANTS by 7/4/2018. (Attachments: # 1 Exhibit Ex A)(McGrath, Daniel) (Entered: 06/26/2018)
2018-07-05	7	ANSWER to Complaint by U.S. DEPARTMENT OF TRANSPORTATION.(Sroka, Scott) (Entered: 07/05/2018)
2018-07-16	8	ORDER. The parties shall file the schedule not later than AUGUST 15, 2018 . Signed by Judge Colleen Kollar-Kotelly on July 16, 2018. (lcckk1 ) (Entered: 07/16/2018)
2018-07-16		Set/Reset Deadlines: Joint Status Report due by 8/15/2018. (dot) (Entered: 07/17/2018)
2018-08-15	9	Joint STATUS REPORT by U.S. DEPARTMENT OF TRANSPORTATION. (Sroka, Scott) (Entered: 08/15/2018)
2018-08-28		MINUTE ORDER: The Court has received the parties' 9 Joint Status Report. The parties are in the midst of meeting and conferring regarding potentially responsive records before identifying an appropriate production schedule. The parties shall have until SEPTEMBER 18, 2018 , to file a further Joint Status Report, which shall identify the parties' progress in narrowing the scope of potentially responsive records and shall propose a production schedule. Signed by Judge Colleen Kollar-Kotelly on August 28, 2018. (lcckk1) (Entered: 08/28/2018)
2018-08-28		Set/Reset Deadlines: Joint Status Report due by 9/18/2018. (dot) Modified on 9/12/2018 to correct date (dot). (Entered: 08/31/2018)
2018-09-18	10	Joint MOTION for Extension of Time to File Joint Status Report by U.S. DEPARTMENT OF TRANSPORTATION (Sroka, Scott) (Entered: 09/18/2018)
2018-09-18		MINUTE ORDER: The Court has received the parties' 10 Joint Motion for Extension of Time to File Status Report. That Joint Status Report is otherwise due on September 18, 2018. The parties seek an extension of three days in order to identify a proposed production schedule for documents responsive to Plaintiff's FOIA request. The parties fail to acknowledge that they have not abided by the Court's standing order, ECF No. 4 , which indicates that "[m]otions for extensions of time must be filed at least four (4) business days prior to the first affected deadline." However, in light of the parties' joint request, the Court shall GRANT their 10 Joint Motion, for good cause shown. The parties shall have until SEPTEMBER 21, 2018 , to submit their next Joint Status Report. Signed by Judge Colleen Kollar-Kotelly on September 18, 2018. (lcckk1) (Entered: 09/18/2018)
2018-09-19		Set/Reset Deadlines: Joint Status Report due by 9/21/2018. (dot) (Entered: 09/20/2018)
2018-09-21	11	Joint STATUS REPORT by AMERICAN OVERSIGHT. (Attachments: # 1 Text of Proposed Order)(McGrath, Daniel) (Entered: 09/21/2018)
2018-10-01		MINUTE ORDER: The Court has received the parties' 11 Joint Status Report, which indicates that Defendant has completed its searches and that the parties have agreed on the dates for interim and final productions. Plaintiff seeks production of certain quantities of documents by the respective dates. However, Plaintiff has not persuaded the Court that an order requiring production of these specified quantities is justified. Defendant shall make an interim production of responsive, non-exempt records to Plaintiff by NOVEMBER 1, 2018 . Defendant shall complete its production of all responsive, non-exempt records by DECEMBER 21, 2018 . Plaintiff requests that the parties file a further Joint Status Report no later than November 5, 2018. However, Plaintiff does not explain why such an interim report would be necessary. Accordingly, the parties shall file their next Joint Status Report by JANUARY 2, 2019 , identifying the results of Defendant's productions and proposing a schedule for further proceedings. Signed by Judge Colleen Kollar-Kotelly on October 1, 2018. (lcckk1) (Entered: 10/01/2018)
2018-10-01		Set/Reset Deadlines: Defendant shall make an interim production of responsive, non-exempt records to Plaintiff by 11/1/2018; Defendant shall complete its production of all responsive, non-exempt records by 12/21/2018; Joint Status Report due by 1/2/2019. (kt) (Entered: 10/01/2018)
2018-10-15	12	NOTICE of Appearance by Bradley P. Humphreys on behalf of U.S. DEPARTMENT OF TRANSPORTATION (Humphreys, Bradley) (Entered: 10/15/2018)
2018-10-15	13	NOTICE OF WITHDRAWAL OF APPEARANCE as to U.S. DEPARTMENT OF TRANSPORTATION. Attorney Scott Leeson Sroka terminated. (Sroka, Scott) (Entered: 10/15/2018)
2018-12-26	14	MOTION to Stay re Order,,,, of Joint Status Report Deadline by U.S. DEPARTMENT OF TRANSPORTATION (Attachments: # 1 Text of Proposed Order)(Humphreys, Bradley) (Entered: 12/26/2018)
2018-12-27		MINUTE ORDER: The Court has received Defendant U.S. Department of Transportation's 14 Motion for Stay of the Deadline for Filing Joint Status Report in Light of Lapse of Appropriations. Defendant indicates that Plaintiff takes no position on a tolling of deadlines commensurate with a short lapse in appropriations to the U.S. Department of Justice, but opposes a longer stay into late January 2019. At this time, it is not possible to determine how long the lapse of appropriations will last. Accordingly, in an exercise of the Court's discretion, the Court shall GRANT Defendant's 14 Motion. The Court shall STAY the deadline for the Joint Status Report otherwise due by January 2, 2019. The deadline is tolled commensurate with the length of the lapse of appropriations to the U.S. Department of Justice. The parties shall file a notice within two business days of the restoration of the U.S. Department of Justice's funding and the resumption of its operations. Signed by Judge Colleen Kollar-Kotelly on December 27, 2018. (lcckk1) (Entered: 12/27/2018)
2019-01-28	15	NOTICE (Joint) of Restoration of Appropriations by U.S. DEPARTMENT OF TRANSPORTATION (Humphreys, Bradley) (Entered: 01/28/2019)
2019-01-29		MINUTE ORDER: The Court has received the parties' 15 Joint Notice to the Court of Restoration of Appropriations. Accordingly, the Court hereby LIFTS the stay in this matter, and recognizes the revised deadline for the parties' next Joint Status Report as FEBRUARY 6, 2019 . Signed by Judge Colleen Kollar-Kotelly on January 29, 2019. (lcckk1) (Entered: 01/29/2019)
2019-02-06	16	Joint STATUS REPORT by AMERICAN OVERSIGHT. (McGrath, Daniel) (Entered: 02/06/2019)
2019-02-06		MINUTE ORDER: The Court has received the parties' 16 Joint Status Report, which indicates that Defendant has completed its production and will provide a draft Vaughn index to facilitate the parties' further discussions. Accordingly, the Court shall adopt the parties' proposal that they submit a further Joint Status Report by MARCH 22, 2019 , regarding the status of the case and their proposal for any further proceedings. Signed by Judge Colleen Kollar-Kotelly on February 6, 2019. (lcckk1) (Entered: 02/06/2019)
2019-02-06		Set/Reset Deadlines: Joint Status Report due by 3/22/2019, regarding the status of the case and their proposal for any further proceedings. (dot) (Entered: 02/07/2019)
2019-03-22	17	Joint STATUS REPORT by AMERICAN OVERSIGHT. (McGrath, Daniel) (Entered: 03/22/2019)
2019-04-01		MINUTE ORDER: The Court has received the parties' 17 Joint Status Report. Although the parties do not comment on the draft Vaughn index that was forthcoming as of their last 16 Joint Status Report, they indicate that they want to confer in an effort to narrow remaining issues. Accordingly, the Court shall adopt the parties' proposal that they submit a further Joint Status Report by APRIL 25, 2019 , regarding the status of this case and their proposal for any additional proceedings. The parties shall file a further Joint Status Report no later than every thirty days thereafter, unless and until the Court orders otherwise. Signed by Judge Colleen Kollar-Kotelly on April 1, 2019. (lcckk1) (Entered: 04/01/2019)
2019-04-01		Set/Reset Deadlines: Joint Status Report due by 4/25/2019, regarding the status of this case and their proposal for any additional proceedings. (dot) (Entered: 04/02/2019)
2019-04-25	18	Joint STATUS REPORT by AMERICAN OVERSIGHT. (McGrath, Daniel) (Entered: 04/25/2019)
2019-05-08	19	Joint STATUS REPORT by AMERICAN OVERSIGHT. (McGrath, Daniel) (Entered: 05/08/2019)
2019-06-07	20	Joint STATUS REPORT and Proposed Briefing Schedule by AMERICAN OVERSIGHT. (McGrath, Daniel) (Entered: 06/07/2019)
2019-06-10		MINUTE ORDER: The Court has received the parties' 18 - 20 Joint Status Reports, which indicate that the parties made some progress in resolving further issues in this matter but that summary judgment briefing is required to resolve the issues that remain. Accordingly, the Court adopts the parties' proposed briefing schedule in the accompanying Scheduling and Procedures Order. Signed by Judge Colleen Kollar-Kotelly on June 10, 2019. (lcckk1) (Entered: 06/10/2019)
2019-06-10	21	SCHEDULING AND PROCEDURES ORDER. Signed by Judge Colleen Kollar-Kotelly on June 10, 2019. (lcckk1) (Entered: 06/10/2019)
2019-06-10		Set/Reset Deadlines: Plaintiff's Cross Motion due by 8/16/2019. Response to Cross Motions due by 9/16/2019. Reply to Cross Motions due by 10/9/2019. Defendant's Summary Judgment Motion due by 7/17/2019. Response to Motion for Summary Judgment due by 8/16/2019. Reply to Motion for Summary Judgment due by 9/16/2019. (dot) Modified on 10/15/2019 to correct date of Reply. (dot). (Entered: 06/12/2019)
2019-07-17	22	MOTION for Summary Judgment by U.S. DEPARTMENT OF TRANSPORTATION (Attachments: # 1 Memorandum in Support, # 2 Exhibit Bell Declaration, # 3 Exhibit Sullivan Declaration, # 4 Statement of Facts, # 5 Text of Proposed Order)(Humphreys, Bradley) (Entered: 07/17/2019)
2019-08-05	23	NOTICE of Appearance by Elizabeth France on behalf of AMERICAN OVERSIGHT (France, Elizabeth) (Entered: 08/05/2019)
2019-08-09	24	Cross MOTION for Summary Judgment by AMERICAN OVERSIGHT (Attachments: # 1 Memorandum in Support, # 2 Declaration & Ex. 1, # 3 Text of Proposed Order, # 4 Statement of Facts)(McGrath, Daniel) (Entered: 08/09/2019)
2019-08-09	25	Memorandum in opposition to re 22 MOTION for Summary Judgment filed by AMERICAN OVERSIGHT. (Attachments: # 1 Declaration & Ex. 1, # 2 Text of Proposed Order, # 3 Statement of Facts)(McGrath, Daniel) (Entered: 08/09/2019)
2019-09-16	26	REPLY to opposition to motion re 22 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF TRANSPORTATION. (Humphreys, Bradley) (Entered: 09/16/2019)
2019-09-16	27	Memorandum in opposition to re 24 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF TRANSPORTATION. (Humphreys, Bradley) (Entered: 09/16/2019)
2019-10-09	28	REPLY to opposition to motion re 24 Cross MOTION for Summary Judgment filed by AMERICAN OVERSIGHT. (McGrath, Daniel) (Entered: 10/09/2019)
2019-10-21	29	NOTICE OF WITHDRAWAL OF APPEARANCE as to AMERICAN OVERSIGHT. Attorney Cerissa Cafasso terminated. (Cafasso, Cerissa) (Entered: 10/21/2019)
2019-10-22	30	NOTICE OF WITHDRAWAL OF APPEARANCE as to AMERICAN OVERSIGHT. Attorney Elizabeth France terminated. (France, Elizabeth) (Entered: 10/22/2019)
2021-04-30	31	NOTICE of Appearance by John E. Bies on behalf of AMERICAN OVERSIGHT (Bies, John) (Main Document 31 replaced on 5/4/2021) (ztd). (Entered: 04/30/2021)
2021-04-30	32	NOTICE OF WITHDRAWAL OF APPEARANCE as to AMERICAN OVERSIGHT. Attorney Daniel Alexander McGrath terminated. (McGrath, Daniel) (Entered: 04/30/2021)
2021-11-17		MINUTE ORDER: Pending before the Court are Defendant's 22 Motion for Summary Judgment and Plaintiff's 24 Cross-Motion for Summary Judgment. In this FOIA case, Defendant argues principally that the deliberative process privilege bars unredacted disclosure of the documents at issue. Def.s Mot. at 8-9, ECF No. 22. Plaintiff contends that the deliberative process privilege does not apply because the communications at issue were made to and at the behest of Congressional staff. Pl.s Mot. at 5. In other words, Plaintiff argues, the communications are not inter-agency or intra-agency communications as Exemption 5 requires. Id. The Court notes that some communications from an agency to Congress are not agency records within the meaning of the FOIA at all. See, e.g., United We Stand Am., Inc. v. IRS, 359 F.3d 595, 604 (D.C. Cir. 2004) (holding that IRS response to congressional request for information was not subject to the FOIA). Accordingly, it is hereby ORDERED that the parties shall each submit, by or on December 8, 2021, supplemental briefing on whether the documents at issue are agency records within the meaning of 5 U.S.C. § 552. Each party's supplemental briefing shall not exceed fifteen pages. It is further ORDERED that Defendant's 22 Motion for Summary Judgment and Plaintiff's 24 Cross-Motion for Summary Judgment are HELD IN ABEYANCE until such time as the parties submit their supplemental briefing. Signed by Judge Colleen Kollar-Kotelly on September 17, 2021. (lcckk1) (Entered: 11/17/2021)
2021-11-17		Set/Reset Deadlines: Each party shall submit supplemental briefing on whether the documents at issue are agency records within the meaning of 5 U.S.C. § 552 by 12/8/2021. (dot) (Entered: 11/23/2021)
2021-12-08	33	SUPPLEMENTAL MEMORANDUM to re 24 Cross MOTION for Summary Judgment per November 17, 2021 Minute Order filed by AMERICAN OVERSIGHT. (Bies, John) (Entered: 12/08/2021)
2021-12-08	34	SUPPLEMENTAL MEMORANDUM to re 22 MOTION for Summary Judgment per November 17, 2021 Order filed by U.S. DEPARTMENT OF TRANSPORTATION. (Humphreys, Bradley) Modified to add link on 12/8/2021 (znmw). (Entered: 12/08/2021)
2021-12-14		MINUTE ORDER: Upon further review of the record in this case, it is hereby ORDERED that Defendant shall provide, on or before December 22, 2021, copies of the documents listed in Defendants Vaughn index for the Courts review in camera . Copies may be sent via email to Chambers. Signed by Judge Colleen Kollar-Kotelly on December 14, 2021. (lcckk1) (Entered: 12/14/2021)
2022-01-11	35	ORDER granting 22 Motion for Summary Judgment and denying 24 Cross-Motion for Summary Judgment. An accompanying Memorandum Opinion follows this Order. Signed by Judge Colleen Kollar-Kotelly on January 11, 2022. (lcckk1) (Entered: 01/11/2022)
2022-01-11	36	MEMORANDUM OPINION re 35 . Signed by Judge Colleen Kollar-Kotelly on January 11, 2022. (lcckk1) (Entered: 01/11/2022)
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