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

MEMORAN DUM OP INION GR ANTINGDEF ENDANT’S MOTION F OR SUMMAR

Y JUDG MENT Civil Action 10-1165 (BJR)

MEMORAN DUM OP INION In this action ag ainst the Fe dera l Housing F inance Authority (“F HFA ”), Plaintiff Ve rn McKinley

claims that FH FA imprope rly withheld two documents re sponsive to a re cords r equest that he submitted under the F ree dom of Information Ac t (“F OIA”) , 5 U.S.C. § 552 et seq . In
acc ordanc e with an e arlier rulingin this case, the pa rties filed a

joint st atus repor

t [ Dkt. # 18] t o which they

attache d portions of the disputed documents that F HFA rele ased pur suant to a courtorder ed “se g reg ability

analy sis.” See Orde r of August 26, 2011. Bef ore the Court are the par

ties’ cross motions for summary judgme nt [ Dkt. ## 9, 11], and McKinley ’s cor respondingreque st that the Court order

the produc tion of any

additional, seg reg able mate rial af ter a n in camera compar ison of the disputed documents and the portions FHF A has re lease d. See J oint St atus Report [Dkt. # 18] . Upon consider ation of the pa rties’ motion, the oppositions t here to, and the
rec ord of this ca se, the Court conc ludes that FH FA’ s motion shoul d be grante d and McK inley ’s motion denied. I. BACKG ROUND McKinley

is seekingmateria ls related to F HFA ’s 2008 dec ision to pl ace the Fe dera lNational Mortg ag e Association (also known as “ Fa nnie Mae ”) a

nd the Fe dera l Home L oan Mortg ag e Corporation (also known as “ Fr eddie Ma c”) in conservatorship. See M cKinley v . Fed. Hous. Fin. Auth. , 789 F. Supp. 2d 85, 86 (D.D .C. 2011). In response to McKinley ’s re quest, FHF A locate d three responsive doc uments but withheld all of them claimingthat they wer e protec ted by

the deliber ative-pr ocess, wor k-produc t, and attorne y -client privileg es that ar e incorpora ted into FOIA’s Exemption 5. Id .; see 5 U.S.C. § 552(b)(5). Mc Kinley dropped his claims as to the first doc ument, but maintained that def endants we re r equire d to relea se the second a nd third documents. Afte r an in camera revie w of both disputed documents, the Honora ble Henr y H. Kenne dy , J r. held that the w ork-pr oduct privileg e did not apply but that the documents we re subjec t to the deliberative-proc ess privileg e. See Orde r of August 26, 2011; McKinley , 789 F. Supp. at 87. In acc ordanc e with 5 U.S.C. § 552(b), Judge Ke nnedy order ed FHF A to produce all fac tual materia l that was “r easona bly seg reg able” from the pr otected documents. See Orde r of August 26, 2011. Havingheld the par ties’ cr oss-motions for summary judgme nt in abeyance while FH FA c onducted its segreg ability analy sis, the Court now returns to them. II. LEGAL STANDARD “Summary

judgme nt is proper if ther e is no g enuine issue a s to any materia l fac t and the moving pa

rty is entitled to judgment as a matter of la

w.” McKinley v . Bd. of Gove rnors of Fed. Reserv e Sys. , 647 F.3d 331, 335 ( D.C. Cir. 2011); accord Ande rson v. Liberty Lobby, Inc ., 477 U.S. 242, 247–48 (1986); F E D . R. C I V . P. 56(a). In the FO IA context, the ag ency seeking to avoid disclosure of

documents must show that “ea ch docume nt that falls within the class reque sted either ha s been pr oduced, is unidentifiable , or is wholly exempt from the Act’s
2inspection requir ements.” Goland v. CIA , 607 F.2d 339, 352 ( D.C. Cir. 1978) (quoting Nat’l

Cable Television Ass’n, Inc . v. FCC , 479 F.2d 183, 186 ( D.C. Cir. 1973)) (inter nal quotation marks omitted). The e x emptions “are to be nar rowly construed,” FBI v . Abramson , 456 U.S. 615, 630 (1982), a

nd the district court must conduct a de novo revie w of the r ecor d. 5 U.S.C. § 552(a) (4)( B) . Courts must vi ew the f acts in the lig ht most favorable to the reque ster and “asc erta in whether

the ag ency

has sustained its burden of demonstratingthat the documents reque sted . . . are exempt from disclosure.” Assassinati on Archive s &Researc h Ctr. v. Cent. IntelligenceAgenc

y , 334 F.3d 55, 57 ( D.C. Cir. 2003) (interna l quotation marks omitted). I f courts find that a

ny rec ords wer e improper ly withheld, they

may order their produc tion. 5 U.S.C
. § 552(a) (4)( B)
. III. ANALYSIS The Court now turns to the motions at hand and e x amines whe ther a ny g enuine issue of materia l fac t remains as to the r elea se of the two disputed doc uments. In the par ties’ joint status repor t, FHF A maintains that, pursuant to its seg reg ability analy sis, it has release d all materia l that is not protected by

the deliber ative proc ess privileg e and the ref ore not e x empt from disclosure under F OIA. McKinley , who has not had a cce ss to the complete ver sions of either doc ument, has no wa y of counte ringthis argument. Thus, he re quests in the joint st atus repor t that Court deter mine throug h an in camera revie w of the doc uments whether the mater ial that FHF A has disclosed includes a ll factua l content that ca n be re asonably

seg reg ated f

rom materia l protecte d by the deliber ative proc ess privileg e. See 5 U.S.C. § 552(b); Army Times Publ’g Co. v. D ep’t of Air Force , 998 F.2d 1067, 1071 ( D.C. Cir. 1993). “[T] he deliber ative proc ess privileg e does not prote ct documents in their e ntirety ; if the 3g overnme nt can se g reg ate a nd disclose non-privileg ed fa ctual information within a document, it must.” See Loving v . Dep’ t of Defense , 550 F.3d 32, 38 ( D.C. Cir. 2008). Howeve r, fa ctual materia l that is “inex tricably intertwined with exempted portions” of the doc uments needs not be disclosed. Johnson v. Ex ec. O ffice for U.S. Attorneys , 310 F.3d 771, 775 ( D.C. Cir. 2002) (citations omitted). To fulfill its obli g ations, an ag ency need not “ commit significa nt time and
resour ces to the se para

tion of disjoint ed wor ds, phrase s, or eve n sentenc es which taken sepa rate ly or tog ether

have minimal or no infor mation content.” Mead D ata Cent., Inc. v. U .S. Dep’ t of Air Force , 566 F.2d 242, 269 n.55 ( D.C. Cir. 1977). Rather, it must separa te out what is rea sonably seg reg able, see 5 U.S.C. § 552(b), when f actor s such as the bur den of line- by -line segreg ation on the ag ency

and the use fuless of the disc losures to the re quester a re w eighed ag ainst eac h other. See id. at 261 (e x plaining that “if only ten per cent of

the mater ial is non-exempt and it is intersper sed line-by -line throughout the document, an a g ency claim that it is not reasonably seg reg able be cause the cost of line- by -line ana ly sis would be high a nd the re sult would be an essentially

meaning less set of wor ds and phra ses[,] might be a cce pted”)
. Her e, F HFAhas met its burden. The Court’s compar ison of the re lease d portions of the document with the withheld mater ial reve als that the ag ency has appr opriately

disclosed all fac tual content that it could re asonably seg reg ate a

nd that is not “inex tricably intertwined” with exempted material. Johnson , 310 F.3d at 776. The withheld mater ial is non-fac tual and conta ins opinions, conjecture s and other statements comprisingthe ag ency deliberations. Thus, FHF A is not require d to produce it. Applying the requisite, nar row c onstruction of the a

pplicable F OIA exemption, see Abram son , 456 U.S. at 630, the Court afte r in camera revie w of the two documents finds that all nonexempt material has e ither bee n disclosed to McKinley or is not
4rea sonably seg reg able
. As a re sult, no ge nuine issue of mate rial fa ct re mains in this case, and FHF A is entitled to summary judgme nt as a matter

of law. IV. CONCLUSION For the fore g oing r easons, the Court c oncludes that F HFA ’s motion for summary judgme nt must be gr anted a nd McKinley ’s motion for summary judgme nt denied. An appropr iate orde r ac companies this memora ndum.
Ba

rbar a J. R othstein United States District J udg e

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