VERN MC KIN LEY, P laintif f,
v. F EDERAL HOUS INGF INANCE AG ENCY, Defendan t.

UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action 10-01165 (HHK )

MEMORAN DUM OP INION AND ORDER Plaintiff Vern Mc Kinley

bring s this action ag ainst the Fe dera l Housing F inance Authority (“F HFA ”), c laiming that F HFAhas improper ly withheld two documents that ar e re sponsive to a
rec ords re quest that McKinley submitt ed under

the Fr eedom of

Information Ac t (“F OIA”) , 5 U.S.C. § 552 et seq . McKinley argues that F HFAhas incorr ectly applied the de liberative- 1 proce ss and attorne y -work- product privileg es to withhold the documents. B efor e the Court ar e the par ties’ cr oss-motions for summary judgme nt [ ## 9, 11]. Upon consideration of the motions, the oppositions thereto, and the r ecor d of this case , the Court conclude s that the motions shoul d be held in abe y ance pendingthe Court’s in camera revie w of the doc uments.
I. BACKG ROUND FHF A was c reated in J uly 2008 by the Housingand Ec onomic Recove ry Act of 2008, 12 U.S.C. § 4501 et seq . Amongother thing s, FHF A serve s as the primar y regulatory

and over sight
McKinley

orig inally

soug ht three doc uments, but has dropped his cla im to one of 1 them. This opinion, however, r efe rs to the re maining doc uments as “Doc ument 2” and “Doc ument 3” bec ause the parties’ filings a nd exhibi ts do so.authority

for the F eder al National Mortg ag e Association and the Fe dera l Home L oan Mortg ag e Corporation (known r espec tively as F annie Ma e and F reddie Mac a nd toge ther a s the Enterpr ises). De f.’s Mot. for Summ. J . Ex . 2 (“Wrig ht Decl.” ) ¶ 8; see 12 U.S.C. § 4511(b). In September 2008, F HFAplace d the Enterpr ises in conservatorship, with the goa l of stabiliz ing their oper ations and financ es. Wright De cl. ¶ 10. In May 2010, McKinley

submitt ed a F OIA re quest to FHF A, see king any and all communications and rec ords conce rning or relating to the assessment of an adver se impact on sy stemic risk in addre ssing Fa nnie Mae and Fr eddie Mac, and in particula

r h o w the FHF A and the Depa rtment of the Trea sury deter mined that conser vatorship was the pref

err ed option to avoid any sy stemic risk of placing Fa nnie Mae a nd Fr eddie Ma c into rec eiver ship. Compl. ¶ 5. This request, as McK inley subsequently

clar ified for

FHF A, cove rs documents fr om the per iod spanning J uly

1 and September

30, 2008. In response to McKinley ’s re quest, FH FA initially sear ched e ight diff

ere nt internal off

ices, includingthe Off

ice of Gene ral Counsel. De f.’s Mot. for Summ. J . Ex . 1 (“L ee D ecl.” ) ¶ 13. The Offic e of G ener al Counsel produce d three potentially

responsive doc uments. L ee D ecl. ¶ 15. An FH FA a

ttorney revie wed the doc uments and conc luded that they

contained material prote cted by the deliber ative-pr ocess a nd attorney

work-pr oduct privileg es and w ere thus withholdable under F OIA’s Exemption 5. L ee D ecl. ¶ 17;
see 5 U.S.C. § 552(b)(5). Mc Kinley was notified of

that conclusion in J uly

2010. FHF A conducte d a fur

ther sea rch in Oc tober 2010 that unc overe d no new r esponsive mater ials. L ee Dec l. ¶¶ 18–23.

2II. LEGAL STANDARD

To obtain summary

judgme nt in a FOIA ac tion, an ag ency must prove that “e ach document that fa lls withi n the class r equeste d either ha s been pr oduced, is unidentifiable , or is wholly exempt from the Act’s inspec tion requireme nts.” Goland v. CIA , 607 F.2d 339, 352 (D.C. Cir. 1978) (quoting Nat’l Cabl e Telev ision Ass’n, Inc. v. FCC , 479 F.2d 183, 186 ( D.C. Cir. 1973)) (inter

nal quotation marks omitted). I f the a g ency withholds documents under a FOIA exemption, i t may

ear n summary

judgme nt by

producingaff

idavits or decla

rations that desc ribe “the justifications for

nondisclosure with re asonably specific detail, demonstrate that the information withheld log ically falls within the claimed e x emption, and ar e not controve rted by either c ontrary

evidenc e in the re cord nor by evidenc e of a g ency

bad fa ith.” Military Audit Project v. Casey , 656 F.2d 724, 738 ( D.C. Cir. 1981). The e x emptions, however , “ar e to be
narr owly construed,” FBI v . Abramson , 456 U.S. 615, 630 (1982). I f the Court finds that any
rec ords wer e improper ly

withheld, it may

order their produc tion. 5 U.S.C . § 552(a) (4)( B)
. III. ANALYSIS Her e, McK inley

does not cha lleng e the suff iciency of F HFA ’s sea

rch. H e also e lects not to contest FH FA’ s withholding of the f irst of the three responsive doc uments that its search
uncover ed. He contends, howe ver, tha t FHF A has misapplied the de liberative- proce ss and attorney -work- product privileg es to the re maining two doc uments. Neither privilege , McKinley
asser ts, justi fies the withholdingof the e ntirety of ea ch docume nt. The Court addre sses ea ch privileg e in turn.

3A. The Deliberative- P roce ss P rivilege

The de liberative- proce ss privileg e prote cts materia ls that are “ both prede cisional and deliberative.” Pub. Citiz en, Inc . v. Office of M gmt. &Budget , 598 F.3d 865, 867 ( D.C. Cir. 2010). A doc ument is the former if “it was g ener ated be fore the adoption of a n ag ency policy ” and is the latter if

“it ref lects the g ive-a

nd-take of the c onsultative proce ss.” Coastal St ates Gas Corp. v. Dep’ t of Energy , 617 F.2d 854, 866 ( D.C. Cir. 1980); accord J udicial W atch, Inc . v. FDA , 449 F.3d 141, 151 ( D.C. Cir. 2006). Her e, it is undisputed that the two documents are prede cisional. The pa rties contest, howeve r, whe ther the doc uments are deliberative. FHF A ar gues that docume nts are de liberative if, as her e, they

involve the weig hing a

nd consideration of potential course s of ac tion. McKinley argues that a doc ument is not deliberative unless the a g ency can show that the re lease of the document would har

m the ag ency ’s dec isionmaking proc ess, which, he contends, F HFAcannot do here . McKinley

is incorre ct. On J une 3, 2011, the D.C. Circuit re jected Mc Kinley ’s contention that an a g ency must show harm to its decisionmakingproce ss in order to withhold a re cord a s “deliber ative.” Ruling on McKinley ’s appe al in another FOIA ca se, the D.C. Circuit explained that “Congress e nacte d FOIA Exempti on 5 . . . prec isely beca use it determined that disclosure of mate rial that is both prede cisional and de liberative does harm a n ag ency ’s dec isionmaking proc ess.” McKinley v . Bd. of Governors of Fed. R eserv e Sys. , 2011 WL2162896, at *7 (D.C. Cir. J un. 3, 2011). The D .C. Circuit further

explained that it would be impractica ble for c ourts to determine on a case -by -ca se basis whether

the re lease of pre decisional mate rials would be ha rmful. See id. at *7–8 (c iting W olfe v. De p’t of Health &Human Serv s. , 839 F.2d 768, 775 ( D.C. Cir. 1988) (en ba nc)) . I t is
4thus clear

that McKinley ’s position rests on an er roneous unde rstandingof what must be shown for the de liberative- proce ss privileg e to apply
. In turn, the Court must conclude that F HFAproper ly applied the pr ivilege . As noted, McKinley

conce des that the doc uments are prede cisional. And, under the standar d clar ified and applied by

the D.C. Circuit in McKinley , they are deliberative: they

are internal doc uments that
wer e “pr ovided to . . . senior policy maker s to assist in t heir de liberations” r eg arding FHF A’s oversig ht of the Enter

prises. De f.’s Mot. for Summ. J . Ex . 3 (“Pollard De cl.”) ¶¶ 13–14. McKinley

does not contend othe rwise. Thus, the Court c oncludes that the doc uments are protec ted by

the deliber ative-pr ocess pr ivilege
. See R enegotiation Bd. v. Grumm an Aircraft Eng’g Corp. , 421 U.S. 168, 184 (1975) (“ [P ]redecisional memora nda prepared in order to assist an agency

decisionmak

er in arriving at his decision . . . are exempt from disclosure . . . .” (empha sis added))
. That conc lusion, however, doe s not resolve this case . “[T] he deliber ative proc ess privileg e does not prote ct documents in their e ntirety ; if the g overnme nt can se g reg ate a nd disclose non-privileg ed fa ctual information within a document, it must .” Loving v. Dep’ t of Defense , 550 F.3d 32, 38 ( D.C. Cir. 2008). Her e, F HFAhas under taken no se g reg ability

analy sis beca use it believes that the doc uments are also protec ted by the work- product doc trine, which does not requir e the se g reg ation of disclosable material. See J udicial W atch, Inc . v. De

p’t of Justice , 432 F.3d 366, 371 ( D.C. Cir. 2005). Thus, to determine whether FHF A has prope rly withheld the entire ty

of both documents, the Court must determine whether they are protec ted work produc t.

5B. The Work-P roduct P rivilege

The wor k-produc t privileg e prote cts “doc uments . . . that are prepa red in a nticipation of litigation . . . by

or for [a] party or its repre sentative.” F E D . R. C I V . P. 26(b)(3)( A); see U nited States v. De loitte LL P , 610 F.3d 129, 134–35 ( D.C. Cir. 2010); In re Se aled Case , 146 F.3d 881, 884 (D.C. Cir. 1998). Thus, the e ssential question here is whether the se re cords we re pr epar ed in anticipation of litigation. See I n re Seale d Case , 146 F.3d at 884. Document 2, a ccor ding to F HFA ’s Vaughn Index, was “ cre ated by the Off ice of Gene ral 2 Counsel to analy

ze the fea tures, strengths and wea

knesses of two a lternate approa ches f or F HFA in dealingwith the Enterpr ises — issuing a c onsent order or instituti nga conse rvatorship.” Wright De cl. Attach. A(“ Vaughn Index”) at 1. It addre ssed the purpose behind both alternatives, analy ses of the ability of eac h to addre ss substantive issues and operational matters, analy sis of the public perc eption of eac h alternative, analy sis of

the potential demands upon F HFA , analy sis of the potential for judicial revie w, analy sis of potential response s from the Enterpr ises and analy sis of the potential c halleng es for FHF A under

either a pproac h. Vaughn Index at 1. Document 3 was “ cre ated by the Off ice of Gene ral Counsel to assess a nd analy ze the issues and options for F HFA ’s ef forts to addre ss the problems of a troubled re g ulated entity .” Vaughn Index at 1. I t cover ed the ramifica

tions of choosing either conser vatorship or rec eiver ship a nd the fa ctors that would support either choice , the fac tors that wo u l d trig g er either [opt ion] , the power s and authorities of FHF A under either [opt ion] , issues for the age n cy in implementing [either option] , the operational require ments that might be require d in implementing [either option] , the steps that could be require d befor e implementing [either option] , the steps that could be require d during the implementation of [either option] , th e i m p act on office rs and direc tors of implementing [either option] , and alternatives to [either option] th at might be available to FHF A, including the possibili ty

of an infor

mal order or ce ase a

nd desist order.
See V aughn v. Rosen , 484 F.2d 820 ( D.C. Cir. 1973). 2 6Vaughn Index at 1.

McKinley

contends that these descr iptions reveal that the two doc uments were cre ated to help FH FA de cisionmakers make policy choice s, and not in anticipation of any litigation. FH FA
conce des that ea ch docume nt has a policy component, but ave rs that ea ch wa s also cre ated to addre ss the possibili ty

that the Enterpr ises would bringa leg al cha lleng e to the policy that it adopted, or

that FHF A itself would have to initi ate litiga tion to effec t its chosen policy . FHF A
asser ts that this dual role does not rob these doc uments of work- product prote ction. FHF A is corr ect that ha

ving a non-litigation aspect doe s not automatically prec lude a document fr om passing the anticipation-of- litigation test. Where a document has a

non-litigation component, the ke y

question is whether it “w ould have be en cr eate d in essentially simil ar f orm irrespe ctive of the litigation.” United States ex rel. Fago v. M

&T Mortg. Corp. , 242 F.R.D. 16, 18 (D.D.C. 2007) ( quoting W illingham v. Ashcroft , 228 F.R.D. 1, 4 (D .D.C. 2005)) (inter nal quotation marks omitted). I f so, it is unprotected. Her e, the Court lac ks the information nec essar y to answer

that question. See D elaney , Migdail & Y

oung, Chartered v. IR S , 826 F.2d 124, 128 ( D.C. Cir. 1987) (“The ag ency must provide the r eviewingcourt with mater ials convey ing the nature of the withheld doc uments in a
manner that permits the cour

t to critically

evaluate the mer it of the ag ency ’s claim of privilege .”). After revie wingthe Vaughn Index, the Court cannot discern the proportion of the doc uments’ contents that is devoted to the possibility of litigation, or the depth of that discussion. L ikewise, the FH FA’ s aff

idavits are insuff

icient to establish that the documents would have bee n cre ated in essentially

simil ar f orm irre spective of

the litigation. Acc ording ly , the Court will order F HFAto

7produce the two documents for in camer a inspec tion. See Q uinon v. FBI , 86 F.3d 1222, 1228 (D.C. Cir. 1996) (notingthat “ in camera revie w may be par ticularly appropr iate whe n . . . the ag ency aff idavits are insuff

iciently detailed to per

mit meaningf

ul reviewof exemption claims”).
IV. CONCLUSION For the fore g oing r easons, the pa rties’ c ross-motions for summary judgme nt are held in abeyance pendingthis Court’s in camera revie w of the two doc uments withheld from disclosure. Acc ording ly , it is t his 7 day of June 2011 hereby t h ORDERED that defe ndant Fe dera l Housing F inance Authority produce copies of the two contested doc uments (identified a s Documents 2 and 3 in the Vaughn Index) for the Court’s in
came ra inspection by

no later tha

n J uly 1, 2011.

Henr

y H. Kenne dy , J r. United States District J udg e

8