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 h as 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 ]; De fendant’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 Jul y 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 comm unity

- based care. P laintiffs 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 ; s ee 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 pro posed 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 t hat on remand, “this litigation boils down to resolution of [one] question:

No. 388]; and the t ranscript 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 ca re 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, effec tively 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’ reques ted 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 identi fied 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 r elated 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

. I d . at * 2

- 3. The District argued that the documents

a re 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 fail ing to properly invoke the privilege. See id . at *5. The District in i tially responded4 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).
Th is 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 , 2 021 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 c oncluded, 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 iden tifies 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 tha t the privilege log be accompanied by “s upporting 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 pri vileges. 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 and5 Community Living

. See June 2 , 2021 Email. Two weeks later, p laintiffs request ed a status conferenc e 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.
T he 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
p laintiffs an updated privilege log in response to specific objections raised by plaintiffs. Privilege Log Email Exchange at 1. T he 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 r eview 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. S ee 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 a nother sta tus 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 th ose remaining documents in camera
. See July 22 Tr.
at 29:11

- 17, 50:12

- 15. At the co nclusion of the status conference, the Court ordered the parties to submit a joint status report memorializing the ir agreements , which the parties filed on July 28, 2021

. See i d . at 50

- 51 ; July 28 , 2021 JSR. Based on the representations of the parties6 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 Dist rict 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.

I II . 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. 19 97). “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, 1 61 (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 r elevant 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 Interio r 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 S tate , 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). T he 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.” I d . at 737, 746 ; see In re Anthem, Inc. Data Breach Litig

. , 236 F. Supp. 3d at 159 (“ [P] rivilege d 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 ev idence, the8 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.
D ata 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).

I V. DISCUSSION
A. The Relevant Olmstead Plan For some time, t he 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

me morandum of law submitted in advance of the July 8, 2021 status conference, p laintiffs 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 plain tiffs’ motion to compel. See Opp.
But in its memorandum of law submitted in advance of the July 8, 2021 status conference , the District clari fied that the plan had not expired. Instead, it explained, “ the reporting requirements of [the 2017

- 2020 Olmstea d 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 s tated that “it is entirely speculative whether a new pla n 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 plaintiffs9 represented t hat the District did not have a finalized Olmstead P lan , 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 stat ed 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 no tice 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 468 7

. Therefore, the District’s counsel stated, the 2017

- 2020 Olmstead P lan “is the focus of this trial , ” i d . at 10:22

- 23 , and the District is “prepared to go forward based on [that] plan , ” i d . 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 i mplementation 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 defi nitely 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. The10 forthcoming 2021

- 2024 Olmstead Plan, and any deliberations related to it , are not r elevant to these questions.
B. Analysis of Documents 1. Deliberative and predecisional
T he 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

. S ee 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”). T he documents the Court has reviewed therefore necessarily are predecisional because they “ predate ” th e 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 t ypes 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 logist ics 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. 3d11 at 161. Moreover, b ecause the deliberations contained with in 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.
T hese 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 articul ated 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 extent12 to which the District has implemented a comprehensive, effectively working Olmstead Plan, and challenge the District’s affirmative fundamental alteration defens e ,” p laintiffs 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 supp ort 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
cate gories 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 partia l 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 t he parties agree that t he trial will concern the operative plan, which is the 2017

- 2020 Olmstead Plan , s ee 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 , s ee In re Sealed
Case , 121 F.3d at 737. Moreover, t he drafts contain tracked changes and comments by District employees. Releasi ng 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 dissemination13 of documents obtained in discovery.” Pl. Mem. at 11. But that order o nly 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 paragraph s 7 and 8 of the Mingal Decl aration. 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 a nd 2021

- 2024 Olmstead Plan s , 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, m uch 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 (re quiring 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. A t 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

a nalysis therefore will focus in large part on how and whether the District’s existing Olmstead14 Plan works. Th is 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 gui dance 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 Enforce ment 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 consi dered 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 deliberat ive 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 A ction 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 d ocuments related to the development of a plan that is not yet operative . Even if the planning
process w as somehow relevant, therefore, it would only be relevant as to the plan currently in effect

– the 2017

- 2020 Olmstead Plan. The balance of interests fa vors 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 Declaratio n, but they were withheld pursuant to the deliberative process privilege and the refore 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 t he parties agree that the trial will concern the operative plan, which is the 2017

- 2020 Olmstead Plan , s ee July 22 Tr. at 10:22

- 23, 15:2

- 3,
16:11

- 13 , t he documents are not relevant to the plan at issue at trial , s ee In re Sealed Case , 121 F.3d at 737. Moreover, the se documents are direct communications between District employees and contain the deliberations and thought process es 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 pro cesses of District employees are relevant to the legal questions before the Court on remand . T he 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 d ocuments. Since t he parties agree that the trial will concern the operative plan, which is the
2017

- 2020 Olmstead Plan , s ee 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 , s ee In re Sealed Case , 121 F.3d at 737. Moreover, t hese 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 . Paragraph s 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 t he parties agree that the trial will concern the operative plan, which is the 2017

- 2020 Olmstead Plan , s ee July 22 Tr. at 10:22

- 23,
15:2

- 3, 16:11

- 13 , t he documents are not relevant to the plan at issue at trial , s ee 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 adopt ed 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, wheth er 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. F or 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 Declaratio n, but the y 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 , t he documents are not relevant to the plan at issue at trial. See In re Sealed Case , 121 F.3d
at 737. Moreover, b ecause these documents are direct communications between District employees, r eleasing these documents may damage the District’s decision

- making processes by chilling employee dis cussions and deliberations

. See In re Sealed Case , 121 F.3d at 738. F or 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 t he 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 Olmstea d Plan, which is not yet in effect

. Plaintiffs have failed to make a sufficient showing of need for these documents. Since t he parties agree that the trial will concern the operative plan, which is the 2017

- 2020 Olmstead Plan , s ee July 2219 Tr. at 10:22

- 23 , 15:2

- 3, 16:11

- 13 , the documents are not relevant to the plan at issue at trial , s ee In re Sealed Case , 121 F.3d at 737. Plaintiffs initially argue d 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, t he 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 misu nderstand 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 inclusi on 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 deins titutionalization.”) (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 co urts ”) (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, b ecause 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. Fo r the20 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 , t he se 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 fol lowing ID number:

• DC_IBrown_00153857 Th is 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 t he parties agree that the trial will concern the operative plan, which is the 2017

- 2020 Olmstead Plan , s ee July 22 Tr. at 10:22

- 23, 15:2

- 3, 16:11

- 13 , t he documents are not relevant to the plan at issue at trial , s ee In re Sealed Case , 121 F.3d at 737. Because these21 documents are direct communications between District employees, r eleasing these documents may damage the District’s decision

- making processes by chilling employee discussions and deliberations

. See id . at 738. And f or 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 Cour t on remand

. The balance of interests therefore favors withholding the documents in paragraph 1 8 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 t he parties ag ree that the trial will concern the operative plan, which is the 2017

- 2020 Olmstead Plan , s ee 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 , s ee In re Sealed Case , 121 F.3d at 737. And b ecause thes e documents are direct communications between District employees, r eleasing 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 . Paragra ph 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

- 202 422 Olmstead Plan , which is not yet in effect . Plaintiffs have failed to make a suf ficient showing of need for these documents. Since t he parties agree that the trial will concern the operative plan, which is the 2017

- 2020 Olmstead Plan , s ee July 22 Tr. at 10:22

- 23, 15:2

- 3, 16:11

- 13 , t hese documents are not relevant to the plan at issue at trial , s ee In re Sealed Case , 121 F.3d at 737. Releasing t he 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

announcem ent was ultimately published publicly. Plaintiffs therefore can only hope to discover the thought processes of District employees. F or 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 Distri ct employees concerning what information might be included in a forthcoming report under th e current plan

. The District has already produced a version of the spreadsheet with the comments redacted. Plaintiffs therefore can only hope to discover the thoug ht processes of District employees. F or 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 t he 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 tr acked 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 bef ore 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. F or the same reasons discussed in Secti on 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 appreci ates the seriousness of this litigation. “[T]he unjustified segregation of disabled individuals in24 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. C ONCLUSION 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/