UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

IVY BROWN, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 10-2250 (PLF)

)

DISTRICT OF COLUMBIA, )

)

Defendant. )

____________________________________)

OPINION

Currently before the Court is the issue of whether the District of Columbia must 

produce to plaintiffs certain documents that the District claims are privileged and has submitted 

for in camera review pursuant to this Court’s July 29, 2021 order. Upon careful consideration of 

the documents submitted for in camera review, the parties’ filings, the relevant legal authorities, 

and the entire record in this case, the Court concludes that all of the documents are shielded from 

discovery by the deliberative process privilege.1

1 The documents reviewed in connection with this matter include: Plaintiffs’ 

Fourth Amended Complaint (“Fourth Am. Compl.”) [Dkt. No. 162]; Plaintiffs’ Motion to 

Compel (“Mot. to Compel”) [Dkt. No. 363]; Plaintiffs’ Second Request for Documents (“Pl. 

Second Req. for Docs.”) [Dkt. No. 363-4]; Plaintiffs’ Second Set of Interrogatories (“Pl. Second 

Interrog.”) [Dkt. No. 363-5]; Defendant’s Opposition to Plaintiff’s Motion to Compel (“Opp.”) 

[Dkt. No. 364]; Plaintiffs’ Memorandum of Law for July 8, 2021 Status Conference (“Pl. 

Mem.”) [Dkt. No. 384]; Email attaching Defendant’s June 1, 2021 Production and Privilege Log 

(“June 1, 2021 Email”) [Dkt. No. 384-10]; June 2, 2021 Email attaching Declaration by Laura 

Newland (“June 2, 2021 Email”) [Dkt. No. 384-11]; Defendant’s Memorandum of Law 

Regarding Discovery Disputes (“Def. Mem.”) [Dkt. No. 386]; Email Exchange Regarding June 1 

and July 1 Privilege Logs (“Privilege Log Email Exchange”) [Dkt. No. 386-1]; Declaration of 

Adam Mingal Attesting to Claims of Deliberative Process Privilege (“Mingal Decl.”) [Dkt. No. 

386-2]; July 28, 2021 Joint Status Report (“July 28, 2021 JSR”) [Dkt. No. 387]; the Court’s July 

29, 2021 Order Memorializing Agreement Between the Parties (“July 29, 2021 Order”) [Dkt. 
2

I. BACKGROUND

Plaintiffs are a class of physically disabled individuals who have been living in 

nursing facilities but who seek to transition to community-based care. Plaintiffs allege that the 

District of Columbia has failed to provide adequate services to assist class members with this 

transition, which has caused them to remain in nursing facilities in violation of the integration 

mandate of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., and 

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq. See Fourth Am. Compl. ¶ 3. 

Plaintiffs seek a number of changes, also referred to as “accommodations,” to the District’s 

transition and community-based long-term care services. See id. at 31-32; see also Brown v. 

District of Columbia, 928 F.3d 1070, 1082 (D.C. Cir. 2019) (“Plaintiffs have requested four 

separate accommodations, reflected in the four provisions of the proposed injunction.”).

II. PROCEDURAL HISTORY

In 2016, Judge Ellen Segal Huvelle presided over a nine-day bench trial in this 

case, after which she entered judgment for the District of Columbia. Brown v. District of 

Columbia, 322 F.R.D. 51, 96 (D.D.C. 2017).2 Plaintiffs appealed, and the court of appeals 

reversed, holding that the district court had improperly “require[d] Plaintiffs to meet a burden 

they should not have been made to shoulder.” See Brown v. District of Columbia, 928 F.3d 

at 1079. The D.C. Circuit’s opinion laid out clear instructions for this Court. See id. 

at 1083-84. It stated that on remand, “this litigation boils down to resolution of [one] question: 

No. 388]; and the transcript of the July 22, 2021 Status Conference (“July 22, 2021 Tr.”) [Dkt. 

No. 390].

2 Judge Huvelle presided over this case until her retirement, at which time the case 

was reassigned to this Court.
3

are the requested accommodations reasonable?” Id. at 1083. In other words: are the changes 

requested by plaintiffs to the District’s transition and community-based long-term care services 

reasonable? The District “bears the burden of proving the unreasonableness of a requested 

accommodation.” Id. at 1077. The District can meet its burden “in one of two ways.” Id. 

at 1084. It can “establish that it has a comprehensive, effectively working plan for transitioning 

the individuals to the community and a waiting list [for transition to the community] that 

move[s] at a reasonable pace, i.e., an adequate Olmstead Plan.” Id. (internal quotation marks 

omitted). If such a plan is in place, “every requested accommodation [would be] categorically 

unreasonable.” Id. If the District “cannot demonstrate the existence of an adequate Olmstead

Plan, the District can establish, seriatim, that each of the four provisions of Plaintiffs’ requested 

injunction would be so costly as to require an unreasonable transfer of the District’s limited 

resources from other disabled individuals.” Id. (internal quotation marks omitted).

Since remand, the parties have engaged in discovery on the issues identified by 

the D.C. Circuit. See Brown v. District of Columbia, Civil Action No. 10-2250, 2021 

WL 1439741, *2-3 (D.D.C. Apr. 16, 2021) (summarizing the history of recent discovery 

disputes). As relevant here, plaintiffs have sought production of documents related to the 

planning of the forthcoming 2021-2024 Olmstead Plan. Id. at *3. After making various informal 

requests of the District, plaintiffs filed a motion to compel production of documents related to the 

planning of the 2021-2024 Olmstead Plan. Id. at *2-3. The District argued that the documents 

are protected by the deliberative process privilege. Id. at *4. Plaintiffs responded that the 

District had waived the deliberative process privilege by failing to produce a privilege log and 

thereby failing to properly invoke the privilege. See id. at *5. The District initially responded 
4

that it was not required to submit a privilege log because “the documents sought by plaintiffs are 

‘inherently’ or ‘by definition’ protected by the privilege.” Id. at *5 (quoting Opp. at 4).

This Court disagreed. It held that, pursuant to well-established case law in this 

circuit, the District was required to produce a privilege log in order to adequately assert the 

deliberative process privilege. Brown v. District of Columbia, 2021 WL 1439741, at *5 (citing 

Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1135 (D.C. Cir. 2000)). By failing to produce 

the required privilege log, the District had not “provided any information that would enable 

either plaintiffs or the Court to determine whether each requested document or set of documents 

is pre-decisional, deliberative, memorializes the agency’s final policy, was shared with the 

public, or can be produced in a redacted form.” Id. The Court therefore granted plaintiffs’ 

motion to compel and ordered the District to supplement its discovery responses with all 

documents related to the 2021 Olmstead Plan that were responsive to plaintiffs’ discovery 

requests. Id. at *6. The Court concluded, however, that the District had not waived the 

deliberative process privilege. Id. at *5. It therefore permitted the District the opportunity to 

properly assert the privilege. The Court ordered the District to “produce a privilege log that 

identifies each document that is responsive to plaintiffs’ requests, specifies the information 

within each document for which the privilege is claimed, and explains why each document falls 

within the scope of the privilege.” Id. at *6. It further ordered that the privilege log be 

accompanied by “supporting affidavits from the proper authorities.” Id.

On June 1, 2021, the District produced a privilege log, which listed almost 1,500 

documents withheld pursuant to the deliberative process privilege or other privileges. See

June 1, 2021 Email. On June 2, 2021, following a demand by plaintiffs, the District produced a 

declaration by Laura Newland, Director of the District of Columbia’s Department on Aging and 
5

Community Living. See June 2, 2021 Email. Two weeks later, plaintiffs requested a status

conference to resolve several outstanding discovery issues, including plaintiffs’ argument that 

the District’s June 1 production failed to comply with the Court’s April 16 opinion and order. 

The Court scheduled a status conference for July 8, 2021 and directed the parties to file, in 

advance of that status conference, formal memoranda of law setting forth a description of the 

issues in dispute. See June 24, 2021 Minute Orders. On July 1, 2021, the District produced to 

plaintiffs an updated privilege log in response to specific objections raised by plaintiffs. 

Privilege Log Email Exchange at 1. The District did not produce an updated declaration with

their July 1 production, but it subsequently filed a detailed declaration by Adam Mingal, General 

Counsel for the District of Columbia Department on Aging and Community Living, on 

July 6, 2021. See Mingal Decl.

At the status conference on July 8, 2021, the Court asked plaintiffs to review the 

Mingal Declaration alongside the District’s July 1 privilege log and determine whether they 

agreed that some or all categories of documents as described in that declaration were properly 

withheld pursuant to the deliberative process privilege. See July 22 Tr. at 4:16-25. The Court 

explained that if the parties could come to an agreement on most of the documents in the 

privilege log, the Court would review the remaining documents in camera. See id. at 5:1-10.

The parties appeared for another status conference on July 22, 2021 and informed 

the Court that they had narrowed their disagreements to 137 documents. July 22 Tr. at 6:14-21. 

The Court agreed to review those remaining documents in camera. See July 22 Tr. 

at 29:11-17, 50:12-15. At the conclusion of the status conference, the Court ordered the parties 

to submit a joint status report memorializing their agreements, which the parties filed on 

July 28, 2021. See id. at 50-51; July 28, 2021 JSR. Based on the representations of the parties 
6

at the July 22, 2021 status conference and the parties’ joint status report, the Court ordered the 

District to “produce to the Court by July 30, 2021 for in camera review the challenged 

documents withheld under the deliberative process privilege.” July 29, 2021 Order. On 

July 29, 2021, the District produced 111 documents to the Court for its review. The District 

stated that some previously-withheld documents were no longer in dispute, either because 

plaintiffs withdrew their challenge or because the District opted to produce the documents, rather 

than submit them for review. The District also submitted a redlined version of the Mingal 

Declaration, which shows which documents are no longer in dispute. The Court’s review 

therefore has been limited to the 111 documents produced after further discussions and 

agreements between the parties.

III. LEGAL STANDARDS

The deliberative process privilege protects material that is “predecisional” and 

“deliberative.” In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). “Predecisional materials 

are those that predate an agency’s decision or adoption of a policy and which comprise part of a 

process by which the Government reached that decision or policy.” In re Anthem, Inc. Data 

Breach Litig., 236 F. Supp. 3d 150, 161 (D.D.C. 2017) (citing Judicial Watch, Inc. v. FDA, 449 

F.3d 141, 151 (D.C. Cir. 2006) and In re Sealed Case, 121 F.3d at 737). And a document is 

deliberative if it “is intended to facilitate or assist development of the agency’s final position on 

the relevant issue.” Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014). “To be 

‘deliberative,’ a document must reflect ‘part of the agency give-and-take by which the decision 

itself is made.’” In re Anthem, Inc. Data Breach Litig., 236 F. Supp. 3d at 161 (quoting 

Hinckley v. United States, 140 F.3d 277, 284 (D.C. Cir. 1998)).
7

Documents that are protected by the deliberative process privilege include those 

“reflecting advisory opinions, recommendations and deliberations comprising part of a process 

by which governmental decisions and policies are formulated.” Dep’t of Interior v. Klamath 

Water Users Protective Ass’n, 532 U.S. 1, 2 (2001). “The deliberative process privilege does 

not[, however,] shield documents that simply state or explain a decision the government has 

already made or protect material that is purely factual, unless the material is so inextricably 

intertwined with the deliberative sections of documents that its disclosure would inevitably 

reveal the government’s deliberations.” In re Sealed Case, 121 F.3d at 737. “[T]he legitimacy of 

withholding does not turn on whether the material is purely factual in nature or whether it is 

already in the public domain, but rather on whether the selection or organization of facts is part 

of an agency’s deliberative process.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 

F.3d 504, 513 (D.C. Cir. 2011)

The deliberative process privilege is a qualified privilege that can be “overcome 

by a sufficient showing of need.” In re Sealed Case, 121 F.3d at 737. “This need determination 

is to be made flexibly on a case-by-case, ad hoc basis.” Id. Each time the deliberative process 

privilege is asserted, a court “must undertake a fresh balancing of the competing interests.” Id. 

(quotation omitted). The court must weigh the public interest in “prevent[ing] injury to the 

quality of agency decisions” against the “need of the party seeking privileged evidence.” Id. at 

737, 746; see In re Anthem, Inc. Data Breach Litig., 236 F. Supp. 3d at 159 (“[P]rivileged 

materials may be ordered disclosed if the court concludes the private need for disclosure 

outweighs the public interest in non-disclosure.”).

To determine whether a party has made a sufficient showing of need, courts 

consider such factors as “the relevance of the evidence, the availability of other evidence, the 
8

seriousness of the litigation, the role of the government, and the possibility of future timidity by 

government employees” should the materials be released. In re Sealed Case, 121 F.3d at 737-38. 

This list of factors is not exhaustive. See id. at 746 (stating that the “balancing is . . . ad hoc in 

the context of the deliberative process privilege”). “The party seeking the documents bears the 

burden of demonstrating that the balance of interests tips in his or her favor.” In re Anthem, Inc. 

Data Breach Litig., 236 F. Supp. 3d at 159; see also Mannina v. District of Columbia, Case 

No.: 1:15-cv-931, 2019 WL 1993780, *6 (D.D.C. May 6, 2019).

IV. DISCUSSION

A. The Relevant Olmstead Plan

For some time, the parties disputed which version of the Olmstead Plan will be at 

issue at trial. In their motion to compel, plaintiffs represented that the plan in effect from 2017 

to 2020 “ended by its own terms on December 31, 2020.” Mot. to Compel at 1. In their 

memorandum of law submitted in advance of the July 8, 2021 status conference, plaintiffs stated 

that “the District chose to allow its Olmstead 2017-2020 plan to expire.” Pl. Mem. at 10. The 

District did not dispute this assertion in its opposition to plaintiffs’ motion to compel. See Opp. 

But in its memorandum of law submitted in advance of the July 8, 2021 status conference, the 

District clarified that the plan had not expired. Instead, it explained, “the reporting requirements 

of [the 2017-2020 Olmstead Plan] would continue ‘[p]ending development of the next Plan.’” 

Def. Mem. at 7 (citing 66 D.C. Reg. 53 at 16711 (Dec. 27, 2019) and 68 D.C. Reg. 18 at 4687 

(Apr. 30, 2021)). The District further stated that “it is entirely speculative whether a new plan 

will be in place before the trial [in this case] is complete.” Id.

At the July 22, 2021 status conference, the Court sought clarification concerning 

which version of the Olmstead Plan would be at issue at trial. Counsel for the plaintiffs
9

represented that the District did not have a finalized Olmstead Plan, see July 22 Tr. 

at 10:5-9, 13:20-22, and that “a plan that’s dated 2021 through 2024 . . . is the plan that is going 

to be in effect when [the Court] writes [its] opinion,” id. at 11:18-20. Counsel for the District, 

however, again stated that “[t]here is an Olmstead Plan in place” – the 2017-2020 Olmstead Plan 

– and “[i]t was finalized shortly after the last trial.” July 22 Tr. at 10:18-19. Counsel noted that 

the District has “a formal notice in the D.C. Register stating that the [2017-2020] plan is in effect 

until the next one is released.” Id. at 14:13-15; see 68 D.C. Reg. 18 at 4687. Therefore, the 

District’s counsel stated, the 2017-2020 Olmstead Plan “is the focus of this trial,” id. at 10:22-23, 

and the District is “prepared to go forward based on [that] plan,” id. at 12:6-7. In response, 

plaintiffs’ counsel stated that “if the Defendants are willing to agree . . . that [the 2017-2020 

Olmstead Plan is] the operative plan and the implementation of that plan is what’s at issue at 

trial, then maybe we could do this.” Id. at 11:9-13.

The Court expressed concern that the trial would be futile if the District is “going 

to come up with a new plan after the trial is over.” July 22 Tr. at 12:8-9. Ultimately, however, 

the Court concluded that “this is Plaintiff’s lawsuit,” so “if Plaintiff wants to go ahead to trial 

based on what now exists, then we’ll do it.” Id. at 14:17-24. In response, plaintiffs’ counsel 

stated: “The Plaintiff definitely wants to go ahead to trial in October.” Id. at 15:2-3. Plaintiffs’ 

counsel further stated that “liability [can] be determined based on whether or not they work 

effectively under the old plan.” Id. at 16:11-13.

The parties therefore now agree that the 2017-2020 Olmstead Plan is the operative 

plan and the only plan at issue at trial. The trial will focus on whether the 2017-2020 Olmstead

Plan is “‘comprehensive,’ ‘effectively working,’ and contains a waiting list that moves at a 

‘reasonable’ pace.” See Brown v. District of Columbia, 928 F.3d at 1086. The 
10

forthcoming 2021-2024 Olmstead Plan, and any deliberations related to it, are not relevant to 

these questions. 

B. Analysis of Documents

1. Deliberative and predecisional

The Court concludes that all of the documents submitted to it in camera are

predecisional. See In re Sealed Case, 121 F.3d at 737. They all concern the 2021-2024 

Olmstead Plan, and a final version of that plan has not yet been adopted as the official policy of 

the District. See July 22 Tr. at 12:2-3 (“So the District is right now every day continuing to 

finalize the next plan.”); 68 D.C. Reg. 18 at 4687 (Apr. 30, 2021) (stating that, during the 

development of the 2021-2024 Olmstead Plan, the 2017-2020 Olmstead Plan “will remain in 

effect”). The documents the Court has reviewed therefore necessarily are predecisional because 

they “predate” the adoption of a final 2021-2024 Olmstead Plan and “comprise part of [the]

process by which” the District will issue a final plan. In re Anthem, Inc. Data Breach Litig., 236 

F. Supp. 3d at 161; see also U.S. Fish & Wildlife Service v. Sierra Club, Inc., 141 S. Ct. 777, 788 

(2021) (stating that “a draft document will typically be predecisional”). 

A review of the documents shows that they are also deliberative. See In re Sealed 

Case, 121 F.3d at 737. The District submitted to the Court the following types of documents 

related to the 2021-2024 Olmstead Plan: drafts or partial drafts of the plan; email 

correspondence between District employees regarding the plan; memoranda regarding revisions 

or additions to the plan; and documents related to the logistics of creating the plan. These 

documents include or consist entirely of deliberations, comments, and exchanges between and 

among District employees. They therefore reflect the “give-and-take” by which the 2021-2024 

Olmstead Plan is being developed. See In re Anthem, Inc. Data Breach Litig., 236 F. Supp. 3d 
11

at 161. Moreover, because the deliberations contained within these documents concern issues 

such as metrics to include in the plan, deadlines by which certain sections of the plan would be 

complete, or revisions to the plan, the documents were plainly produced in order to facilitate the 

development of the final 2021-2024 Olmstead Plan. See Nat’l Sec. Archive v. CIA, 752 F.3d 

at 463; Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. at 2. And revealing 

earlier drafts of the 2021-2024 Olmstead Plan inevitably reveals the District’s “selection or 

organization of facts,” which is part of the deliberative process. See Ancient Coin Collectors 

Guild v. U.S. Dep’t of State, 641 F.3d at 513; In re Sealed Case, 121 F.3d at 737.

These documents do not state or explain a decision that the District has already 

made because, as the Court has explained, the 2021-2024 Olmstead Plan has not yet been 

finalized. See In re Sealed Case, 121 F.3d at 737. And, as discussed in the next section, any 

“purely factual” information has already been produced to plaintiffs. Id. All of the documents 

submitted for in camera review therefore are subject to the deliberative process privilege. But

those documents may still be produced to the plaintiffs if plaintiffs have made a “sufficient 

showing of need.” In re Sealed Case, 121 F.3d at 737.

2. In re Sealed Case

Plaintiffs argue that their “need for [the withheld documents] outweighs the 

District’s qualified invocation of the deliberative process privilege.” See Mot. to Compel at 8; 

see also Pl. Mem. at 7 (“[T]he Court should order production of the withheld documents under 

the balancing test articulated by the DC Circuit in In re Sealed Case.”). Plaintiffs contend that 

the withheld documents are “central to this case” because “[d]ocuments relating to the 

development of the 2021 Olmstead Plan are key to [the] issues on remand.” Mot. to Compel 

at 1, 9. They argue that in order to “prepare for trial, present and rebut evidence about the extent 
12

to which the District has implemented a comprehensive, effectively working Olmstead Plan, and 

challenge the District’s affirmative fundamental alteration defense,” plaintiffs require all 

documents related to the development of the 2021-2024 Olmstead Plan. Reply at 4. 

The District disagrees, arguing that plaintiffs cannot make a sufficient showing of 

need to overcome the deliberative process privilege. The District contends that “none of the 

documents withheld or produced are relevant, let alone central” to the issues at trial because the 

withheld documents concern the pending 2021-2024 Olmstead Plan, which is not yet operative. 

Def. Mem. at 6-8. In support of its position, the District submitted the declaration of Adam 

Mingal, General Counsel for the District of Columbia Department on Aging and Community 

Living. In his declaration, Mr. Mingal divided the documents for in camera review into thirteen 

categories and explained the facts underlying the assertion of privilege for each category. The

Court’s analysis therefore follows the groupings in the Mingal Declaration.

a. Paragraphs 7 and 8

The documents listed in paragraphs 7 and 8 are drafts or partial drafts of 

the 2021-2024 Olmstead Plan, which is not yet in effect. Plaintiffs have failed to make a 

sufficient showing of need for these documents. Since the parties agree that the trial will 

concern the operative plan, which is the 2017-2020 Olmstead Plan, see July 22 Tr. at 10:22-23, 

15:2-3, 16:11-13, these documents are not relevant to the plan at issue at trial, see In re Sealed 

Case, 121 F.3d at 737. Moreover, the drafts contain tracked changes and comments by District 

employees. Releasing these documents therefore may damage the District’s decision-making 

processes by chilling employee discussions and deliberations. See id. at 738.

Plaintiffs argue that future timidity by government officials can be mitigated by 

the protective order in this litigation, which plaintiffs state will “prevent the public dissemination 
13

of documents obtained in discovery.” Pl. Mem. at 11. But that order only protects the 

confidentiality of information that “includes Protected Health Information (“PHI”) and Mental 

Health Information (“MHI”).” Protective Order at 1. It therefore does not protect the documents 

listed in paragraphs 7 and 8 of the Mingal Declaration. Plaintiffs also contend that the chilling of 

government employees is less relevant where, as here, “the decision-making process . . . involves 

collaboration with individuals and organizations outside of the government.” Mot. to Compel. 

at 11; Pl. Mem. at 11. But the District’s internal deliberations do not lose their protection simply 

because the District has consulted with non-governmental stakeholders.

To the extent that plaintiffs seek to identify potential differences between 

the 2017-2020 and 2021-2024 Olmstead Plans, a draft version of the 2021-2024 Olmstead Plan 

was published for public comment on April 30, 2021 and is available for their review. See 68 

D.C. Reg. 18 at 4687 (Apr. 30, 2021) (soliciting comments on a draft of the 2021-2024 Olmstead

Plan). Plaintiffs therefore already understand the District’s thinking with respect to changes to 

the 2017-2020 Olmstead Plan; there is no need to review earlier drafts of a now-public draft 

plan. Moreover, much of the factual information contained within the withheld drafts can be 

found in the final draft published for public comment. See In re Sealed Case, 121 F.3d at 738

(requiring courts to consider the availability of other evidence).

Even if drafts of the 2021-2024 Olmstead Plan were somehow relevant to the 

2017-2020 Olmstead Plan, plaintiffs still cannot show that the drafts are relevant to the legal 

questions before the Court. At trial, the Court must determine whether the District has an 

adequate Olmstead Plan in place and, if not, whether the accommodations requested by plaintiffs 

are unreasonable. See Brown v. District of Columbia, 928 F.3d at 1083-84. The Court’s 

analysis therefore will focus in large part on how and whether the District’s existing Olmstead
14

Plan works. This question cannot be answered by knowing what commitments were considered 

but ultimately rejected by the District for a different, forthcoming plan. The salient issue is 

whether the commitments that were adopted help form an Olmstead Plan that is “effectively 

working.” Id. at 1084.

The DOJ guidance cited by plaintiffs supports this conclusion. That guidance 

states that an Olmstead Plan “must contain concrete and reliable commitments to expanded 

integrated opportunities.” U.S. Dep’t of Justice, Statement of the Department of Justice on 

Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and 

Olmstead v. L.C. (“DOJ Statement”) (Feb. 25, 2020), https://www.ada.gov/olmstead/q&a_

olmstead.htm. A final plan that contains those types of commitments might be considered 

adequate, while a plan that does not might be considered inadequate. But the process by which 

any such plan was developed is irrelevant. Plaintiffs’ reliance on Doe 2 v. Esper therefore is 

misplaced. In that case, the court held that the deliberative process privilege did not apply to 

documents that concerned “Defendants’ decision-making processes and intent” because “the 

extent and scope of that decision-making process [was] a central issue in [that] lawsuit.” Doe 2 

v. Esper, Civil Action No. 17-1597, 2019 WL 4394842, *7 (D.D.C. Sept. 13, 2019). Here, by 

contrast, the processes by which the District develops a plan have no bearing on whether the plan 

that is ultimately adopted is effectively working. More importantly, plaintiffs are seeking 

documents related to the development of a plan that is not yet operative. Even if the planning 

process was somehow relevant, therefore, it would only be relevant as to the plan currently in 

effect – the 2017-2020 Olmstead Plan. The balance of interests favors withholding the 

documents listed in paragraphs 7 and 8 of the Mingal Declaration.
15

The same reasoning applies to documents with the following ID numbers:

• DC_IBrown_00154121

• DC_IBrown_00151331

• IVYB051_0000001271.0001

• IVYB051_0000001284.0001

• IVYB051_0000001293.0001

• IVYB051_0000003095.0001

• IVYB051_0000003095.0002

• IVYB051_0000003096.0001

These documents are not listed in the Mingal Declaration, but they were withheld pursuant to the 

deliberative process privilege and therefore were submitted to the Court for in camera review.

b. Paragraph 9

The documents listed in paragraph 9 are email correspondence concerning the 

2021-2024 Olmstead Plan, which is not yet in effect. Plaintiffs have failed to make a sufficient 

showing of need for these documents. Since the parties agree that the trial will concern the 

operative plan, which is the 2017-2020 Olmstead Plan, see July 22 Tr. at 10:22-23, 15:2-3, 

16:11-13, the documents are not relevant to the plan at issue at trial, see In re Sealed Case, 121 

F.3d at 737. Moreover, these documents are direct communications between District employees 

and contain the deliberations and thought processes of those employees. Releasing these

documents therefore may damage the District’s decision-making processes by chilling employee 

discussions and deliberations. See id. at 138. For the same reasons discussed in Section 

IV(B)(2)(a), supra, plaintiffs have failed to show that the thought processes of District employees 

are relevant to the legal questions before the Court on remand. The balance of interests favors 

withholding the documents listed in paragraph 9 of the Mingal Declaration.
16

c. Paragraph 10

The documents listed in paragraph 10 are copies of a short memorandum noting 

areas for additional information and improvements to a draft of the 2021-2024 Olmstead Plan, 

which is not yet in effect. Plaintiffs have failed to make a sufficient showing of need for these 

documents. Since the parties agree that the trial will concern the operative plan, which is the 

2017-2020 Olmstead Plan, see July 22 Tr. at 10:22-23, 15:2-3, 16:11-13, the documents are not 

relevant to the plan at issue at trial, see In re Sealed Case, 121 F.3d at 737. Moreover, these 

documents are direct communications between District employees. Releasing these documents 

therefore may damage the District’s decision-making processes by chilling employee discussions

and deliberations. See id. at 738. And for the same reasons discussed in Section IV(B)(2)(a),

supra, plaintiffs have failed to show that the thought processes of District employees are relevant 

to the legal questions before the Court on remand. The balance of interests therefore favors 

withholding the documents listed in paragraph 10 of the Mingal Declaration.

d. Paragraphs 12 and 13

Paragraphs 12 and 13 list thirty-three documents that “convey suggestions for 

metrics that might be included in the next plan. Mingal Decl. ¶ 11. The documents are either 

tables listing or email correspondence concerning proposed metrics for inclusion in 

the 2021-2024 Olmstead Plan, which is not yet in effect. Plaintiffs have failed to make a 

sufficient showing of need for these documents. Since the parties agree that the trial will 

concern the operative plan, which is the 2017-2020 Olmstead Plan, see July 22 Tr. at 10:22-23, 

15:2-3, 16:11-13, the documents are not relevant to the plan at issue at trial, see In re Sealed 

Case, 121 F.3d at 737.
17

Plaintiffs argue that these documents are

relevant to the Court’s determination of whether the plan reflects 

that the District “is providing services in the most integrated setting 

and whether the plan contains concrete and reliable commitments to 

expand integrated opportunities, specific and reasonable timeframes 

and measurable goals for which the public entity may be held 

accountable.”

Pl. Mem. at 8-9 (quoting DOJ Statement). But the metrics being discussed have not yet been 

adopted by the District because they have not yet been incorporated into a final version of 

the 2021-2024 Olmstead Plan. Even if they had been or subsequently are incorporated, the 

metrics will remain irrelevant to the question before the Court, that is, whether the current

plan – the 2017-2020 Olmstead Plan – is effectively working.

Moreover, some of these documents are direct communications between District 

employees. Releasing these documents therefore may damage the District’s decision-making 

processes by chilling employee discussions and deliberations. See In re Sealed Case, 121 F.3d 

at 738. For the same reasons discussed in Section IV(B)(2)(a), supra, plaintiffs have failed to 

show that the thought processes of District employees are relevant to the legal questions before 

the Court on remand. The balance of interests favors withholding these documents.

The same reasoning applies to documents with the following ID numbers:

• IVYB051_0000000653.0001

• IVYB051_0000000653.0003

• IVYB051_0000000735.0001

• IVYB051_0000000735.0003

• IVYB051_0000000746.0001

• IVYB051_0000000957.0001

• IVYB051_0000000957.0003

These documents are not listed in the Mingal Declaration, but they were withheld pursuant to the 

deliberative process privilege and therefore were submitted to the Court for in camera review.
18

e. Paragraph 14

The documents listed in paragraph 14 are three copies of email correspondence, 

two of which are unredacted and one of which is redacted. The emails concern proposed metrics 

for inclusion in the 2021-2024 Olmstead Plan, which is not yet in effect. Plaintiffs have failed to 

make a sufficient showing of need for these documents. The parties agree that the trial will 

concern the operative plan, which is the 2017-2020 Olmstead Plan. See July 22 Tr. at 10:22-23, 

15:2-3, 16:11-13. For this reason, and for the reasons discussed in Section IV(B)(2)(d), supra, 

the documents are not relevant to the plan at issue at trial. See In re Sealed Case, 121 F.3d 

at 737.

Moreover, because these documents are direct communications between District 

employees, releasing these documents may damage the District’s decision-making processes by 

chilling employee discussions and deliberations. See In re Sealed Case, 121 F.3d at 738. For the 

same reasons discussed in Section IV(B)(2)(a), supra, plaintiffs have failed to show that the 

thought processes of District employees are relevant to the legal questions before the Court on 

remand. Finally, copies of these emails have been produced to plaintiffs in redacted form to 

show the factual information contained therein. See In re Sealed Case, 121 F.3d at 738. The 

balance of interests therefore favors withholding the documents in paragraph 14 of the Mingal 

Declaration.

f. Paragraph 16

The documents listed in paragraph 16 are three memoranda outlining a proposed 

strategy for completion of the 2021-2024 Olmstead Plan, which is not yet in effect. Plaintiffs 

have failed to make a sufficient showing of need for these documents. Since the parties agree 

that the trial will concern the operative plan, which is the 2017-2020 Olmstead Plan, see July 22 
19

Tr. at 10:22-23, 15:2-3, 16:11-13, the documents are not relevant to the plan at issue at trial, see

In re Sealed Case, 121 F.3d at 737. 

Plaintiffs initially argued that these documents are “relevant because the District 

chose to allow its Olmstead 2017-2020 plan to expire.” Pl. Mem. at 10. But, as explained 

above, the 2017-2020 plan did not expire. Instead, the District extended operation of that plan 

until the forthcoming 2021-2024 Olmstead Plan can be finalized. See 66 D.C. Reg. 53 at 16711 

(Dec. 27, 2019); 68 D.C. Reg. 18 at 4687 (Apr. 30, 2021). Plaintiffs also state that 

“[i]nformation relating to the timing of the next plan is directly relevant to whether the District 

has a genuine commitment to deinstitutionalization.” Pl. Mem. at 10. But plaintiffs 

misunderstand the meaning of “commitment” in this context. The commitments that are relevant 

here are the concrete, specific commitments contained within the existing Olmstead Plan – not 

the abstract commitments that the District may have to equity or inclusion of disabled people. 

See, e.g., DOJ Statement; see also Day v. District of Columbia, 894 F. Supp. 2d 1, 28 

(D.D.C. 2012) (“[T]here is wide-spread agreement that one essential component of an 

‘effectively working’ plan is a measurable commitment to deinstitutionalization.”) (emphasis 

added); Frederick L. v. Dep’t of Pub. Welfare of Com. of Pa., 364 F.3d 487, 500 (3d Cir. 2004) 

(holding that the governmental agency must “make a commitment to action in a manner for 

which it can be held accountable by the courts”) (emphasis added). The timing of the 

forthcoming 2021-2024 Olmstead Plan is not at all relevant to whether the operative plan, the 

2017-2020 Olmstead Plan, includes measurable commitments to deinstitutionalization.

Moreover, because these documents are direct communications between District 

employees, releasing these documents may damage the District’s decision-making processes by 

chilling employee discussions and deliberations. See In re Sealed Case, 121 F.3d at 738. For the 
20

same reasons discussed in Section IV(B)(2)(a), supra, plaintiffs have failed to show that the 

thought processes of District employees are relevant to the legal questions before the Court on 

remand. The balance of interests therefore favors withholding the documents in paragraph 16 of 

the Mingal Declaration.

g. Paragraph 17

The documents listed in paragraph 17 are timelines for developing the 2021-2024 

Olmstead Plan, which is not yet in effect. Plaintiffs have failed to make a sufficient showing of 

need for these documents. The parties agree that the trial will concern the operative plan, which 

is the 2017-2020 Olmstead Plan. See July 22 Tr. at 10:22-23, 15:2-3, 16:11-13. For this reason 

and others discussed in Section IV(B)(2)(f), supra, these documents are not relevant to the plan 

at issue at trial. See In re Sealed Case, 121 F.3d at 737. The balance of interests favors 

withholding the documents in paragraph 17 of the Mingal Declaration.

The same reasoning applies to the document with the following ID number:

• DC_IBrown_00153857

This document is not listed in the Mingal Declaration, but it was withheld pursuant to the 

deliberative process privilege and was therefore submitted to the Court for in camera review.

h. Paragraph 18

The documents listed in paragraph 18 are email correspondence concerning the

role of the Department of Health Care Finance in developing the 2021-2024 Olmstead Plan, 

which is not yet in effect. Plaintiffs have failed to make a sufficient showing of need for these 

documents. Since the parties agree that the trial will concern the operative plan, which is 

the 2017-2020 Olmstead Plan, see July 22 Tr. at 10:22-23, 15:2-3, 16:11-13, the documents are 

not relevant to the plan at issue at trial, see In re Sealed Case, 121 F.3d at 737. Because these 
21

documents are direct communications between District employees, releasing these documents 

may damage the District’s decision-making processes by chilling employee discussions and 

deliberations. See id. at 738. And for the same reasons discussed in Section IV(B)(2)(a), supra, 

plaintiffs have failed to show that the thought processes of District employees are relevant to the 

legal questions before the Court on remand. The balance of interests therefore favors 

withholding the documents in paragraph 18 of the Mingal Declaration.

i. Paragraph 19

The documents listed in paragraph 19 are email correspondence regarding 

agendas for group meetings, assignments and next steps, a town hall meeting, and other issues 

related to the development of the 2021-2024 Olmstead Plan, which is not yet in effect. Plaintiffs 

have failed to make a sufficient showing of need for these documents. Since the parties agree 

that the trial will concern the operative plan, which is the 2017-2020 Olmstead Plan, see July 22 

Tr. at 10:22-23, 15:2-3, 16:11-13, the documents are not relevant to the plan at issue at trial, see

In re Sealed Case, 121 F.3d at 737. And because these documents are direct communications 

between District employees, releasing these documents may damage the District’s 

decision-making processes by chilling employee discussions and deliberations. See id. at 738. 

For the same reasons discussed in Section IV(B)(2)(a), supra, plaintiffs have failed to show that 

the thought processes of District employees are relevant to the legal questions before the Court 

on remand. The balance of interests therefore favors withholding these documents.

j. Paragraph 20

The documents listed in paragraph 20 are drafts of and email correspondence 

related to a letter and notice issued to the public in December 2019 regarding the 2021-2024
22

Olmstead Plan, which is not yet in effect. Plaintiffs have failed to make a sufficient showing of 

need for these documents. Since the parties agree that the trial will concern the operative plan, 

which is the 2017-2020 Olmstead Plan, see July 22 Tr. at 10:22-23, 15:2-3, 16:11-13, these 

documents are not relevant to the plan at issue at trial, see In re Sealed Case, 121 F.3d at 737. 

Releasing the email correspondence may damage the District’s decision-making processes by 

chilling employee discussions and deliberations. See id. at 738. Moreover, a final version of the 

announcement was ultimately published publicly. Plaintiffs therefore can only hope to discover 

the thought processes of District employees. For the same reasons discussed in Section 

IV(B)(2)(a), supra, plaintiffs have failed to show that the thought processes of District employees 

are relevant to the legal questions before the Court on remand. The balance of interests therefore 

favors withholding the documents in paragraph 20 of the Mingal Declaration.

k. Paragraph 21

The document listed in paragraph 21 is a spreadsheet showing content from 

quarterly reports issued under the current plan, the 2017-2020 Olmstead Plan. Plaintiffs have 

failed to make a sufficient showing of need for this document. The spreadsheet includes 

comments from District employees concerning what information might be included in a 

forthcoming report under the current plan. The District has already produced a version of the 

spreadsheet with the comments redacted. Plaintiffs therefore can only hope to discover the 

thought processes of District employees. For the same reasons discussed in Section IV(B)(2)(a), 

supra, plaintiffs have failed to show that the thought processes of District employees are relevant 

to the legal questions before the Court on remand. The balance of interests therefore favors 

withholding the document in paragraph 21 of the Mingal Declaration.
23

l. Paragraph 22

The two documents listed in paragraph 22 are protected by the deliberative 

process privilege. The first document is a draft of the District’s Statewide Transition Plan. This 

document provides a comprehensive assessment of the District’s compliance with a 2014 

regulation issued by The Centers for Medicare & Medicaid Services establishing requirements 

for supporting and integrating people receiving Medicaid Home and Community-Based Services. 

The second document is a draft of the District’s Policy and Procedures Manual for the D.C. 

Department of Health Care Finance’s Long Term Care Administration. That document shows 

comments and tracked changes by District employees.

Neither party has explained how these documents are relevant to either 

the 2017-2020 Olmstead Plan or the 2021-2024 Olmstead Plan. Even assuming, however, that 

either or both documents are relevant to the questions before the Court on remand, final versions 

of these documents have already been produced to plaintiffs or published publicly. Plaintiffs 

therefore can only hope to discover the thought processes of District employees. For the same 

reasons discussed in Section IV(B)(2)(a), supra, plaintiffs have failed to show that the thought 

processes of District employees are relevant to the legal questions before the Court on remand.

The balance of interests therefore favors withholding the document in paragraph 22 of the 

Mingal Declaration.

m. Other factors

When determining whether the deliberative process privilege is overcome by a 

showing of need, courts must also consider the seriousness of the litigation and the role of the 

government. In re Sealed Case, 121 F.3d at 138. The Court recognizes and appreciates the 

seriousness of this litigation. “[T]he unjustified segregation of disabled individuals in 
24 

institutions is a form of disability discrimination barred by federal law.” Brown v. District of 

Columbia, 928 F.3d at 1073. In addition, the role of the government in this litigation is of central 

importance, as the primary question for the Court is whether the District of Columbia has an 

adequate Olmstead Plan in place. See id. at 1084. These two factors therefore might in some 

cases weigh in favor of disclosure, but not here. The Court concludes that these two factors do 

not overcome the central issue of relevance. 

Plaintiffs bear the burden of demonstrating sufficient need for the withheld 

documents. They cannot make that showing of need where, as here, the documents are irrelevant 

to the legal questions before the Court on remand: whether the current Olmstead Plan – the 

2017-2020 Olmstead Plan – is adequate and, if not, whether the plaintiffs’ requested 

accommodations would require an unreasonable transfer of resources from other disabled 

individuals. Those questions can only be answered using evidence concerning the currently 

operative plan. 

V. CONCLUSION

For the foregoing reasons, the Court will sustain the District of Columbia’s claims 

of deliberative process privilege for the documents submitted in camera pursuant to this Court’s 

July 29, 2021 order. An Order consistent with this Opinion will issue this same day. 

SO ORDERED.

________________________

PAUL L. FRIEDMAN

United States District Judge

DATE: August 31, 2021 

/s/