NH Right to Life v. US Dept. of Health & Human

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Jeffrey R. Howard, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [14-1011]

Case: 14-1011

Document: 00116795180

Page: 1

Date Filed: 02/04/2015

Entry ID: 5884347

United States Court of Appeals
For the First Circuit

No. 14-1011
NEW HAMPSHIRE RIGHT TO LIFE,
Plaintiff, Appellant,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]

Before
Torruella, Howard, and Kayatta,
Circuit Judges.

Michael J. Tierney, with whom Wadleigh, Starr & Peters, PLLC,
was on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.

February 4, 2015

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KAYATTA, Circuit Judge.

Entry ID: 5884347

In 2011, the Department of

Health and Human Services ("Department") awarded federal grant
funds directly to Planned Parenthood of Northern New England
("Planned Parenthood").

New Hampshire Right to Life ("Right to

Life") then filed a request under the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552, and ultimately this lawsuit, seeking
documents

related

to

the

award

of

that

federal

grant.

The

Department produced some documents, but withheld others, citing
FOIA

exemptions

for

confidential

commercial

information,

id.

§ 552(b)(4) (Exemption 4), and inter- or intra-agency memoranda,
id. § 552(b)(5) (Exemption 5).

We affirm the district court's

ruling that the Department properly withheld the subject documents
under FOIA Exemptions 4 and 5.
I.Background
A.

Direct Award Of Federal Grant To Planned Parenthood
Prior

to

2011,

the

Department

historically

awarded

Title X1 federal grants to New Hampshire, which in turn dispersed
a combination of federal and state funds through subgrants to
various

entities.

Title

X

federal

grants

"assist

in

the

establishment and operation of voluntary family planning projects
which . . . offer a broad range of acceptable and effective family

1

Title X refers to Title X of the Public Health Services
Act, created by the Family Planning Services and Population
Research Act of 1970. Pub. L. 91–572, § 6(c), 84 Stat. 1504,
1506–08, codified as amended at 42 U.S.C. §§ 300--300a-6.
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planning methods and services (including natural family planning
methods, infertility services, and services for adolescents)." 42
U.S.C. § 300(a).
these

Planned Parenthood historically received one of

subgrants,

including

Title

X

federal

funds,

from

New

Hampshire. As of July 1, 2011, Planned Parenthood operated clinics
in six different New Hampshire municipalities: Manchester, Derry,
Keene, Exeter, West Lebanon, and Claremont.
In June 2011, the New Hampshire Executive Council chose
not to award any subgrant to Planned Parenthood, expressing concern
that taxpayer funds were being used to subsidize abortions.2

New

Hampshire's decision meant that unless a new provider received the
funds, large portions of the state would no longer have access to
Title X services. In July 2011, the Department asked New Hampshire
for information on how it would ensure continued provision of Title
X services in areas previously served by Planned Parenthood.

In

mid-August 2011, the New Hampshire Department of Health and Human
Services informed the Department that they could not find a
replacement

provider

for

those

areas.

New

Hampshire

then

relinquished what would have been Planned Parenthood's portion of
the federal funds.
The Department considered alternative options, including
bypassing New Hampshire's Executive Council, and directly awarding

2

New Hampshire's Executive Council had this concern despite
the fact that Title X prohibits the use of its funds "in programs
where abortion is a method of family planning." 42 U.S.C. § 300a-6.
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Title X funds to Planned Parenthood.

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On August 19, 2011, Marilyn

Keefe, the Deputy Assistant Secretary of the Department's Office of
Population Affairs ("OPA"), signed a memorandum titled, "Sole
Source Justification for Replacement Grant in New Hampshire". This
memorandum "request[ed] approval [from the Department's Office of
the Assistant Secretary of Health ("OASH")] of a sole source
replacement grant to [Planned Parenthood] for a period of 16
months."

The memorandum "noted an urgent need to reinstate

services in [the affected] areas with an experienced provider that
is familiar with the provision of Title X family planning services
and applicable laws . . . and has a history of successfully
providing services in this area of the state."

The memorandum

explained that, upon approval of its recommendation, "[the OPA]
will reach out to the proposed replacement grantee to determine if
the organization is willing to take on this project as a directly
funded federal grantee."

The memorandum also stated that "[t]he

Director of the OASH Grants Management Office has consulted with
the Office of the General Counsel, which has determined that the
use of the replacement grant process is legally justified in this
case."

The

OASH

Executive

Officer

approved

the

OPA's

recommendation by countersigning the memorandum on that very same
day--August 19, 2011.
On September 1, 2011, Planned Parenthood applied for the
direct award grant.

The Department then prepared a "Technical

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Review" document, evaluating Planned Parenthood's application.

On

September 9, the Department announced, via its website, its intent
to directly issue a replacement grant to Planned Parenthood.
September 13, the Department formally
Award

to

Planned

Parenthood.

On

provided a Notice of Grant

The

notice

required

Planned

Parenthood to submit to the Department, by December 15, 2011,
additional "institutional files" on "a variety of policies and
procedures[.]"

Responding to this notice, Planned Parenthood

submitted its Manual of Medical Standards and Guidelines ("Manual")
as well as information on its fee schedule and personnel policies.
B.

Right To Life's FOIA Challenge And District Court Decision
On December 22, 2011, Right to Life filed a lawsuit under

the FOIA, seeking documents related to the Department's decision to
proceed

with

Parenthood

a

direct

submitted

award

as

part

process,
of

its

documents
grant

that

Planned

application,

and

documents related to the Department's decision to award that grant
to Planned Parenthood.

After being sued, the Department released

more than 2,500 pages of documents. The Department determined that
some portions of the Manual were exempt from disclosure under the
FOIA, but intended to release the remainder, and so informed
Planned Parenthood.

Planned Parenthood responded by arguing that

its entire Manual constituted confidential commercial information,
and thus was exempt from disclosure under the FOIA.
§ 552(b)(4).

See 5 U.S.C.

The Department rejected this argument.

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Planned

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Parenthood countered by commencing an action in district court,
seeking to enjoin the Department from releasing any portion of the
Manual.
The district court remanded the matter to the Department
to "reconsider its FOIA determination in light of additional
information
portions

of

provided
the

by

[Planned

[M]anual,

and

Parenthood]

produce

a

about

more

specific

comprehensive

explanation for any determination that portions of the [M]anual are
subject to disclosure despite [Planned Parenthood's] objections."
Upon reconsideration, the Department decided to withhold or redact
additional portions of the Manual.

The Department also continued

to withhold various other documents or portions of documents,
invoking FOIA Exemptions 4, 5, and 6. The Department gave Right to
Life a Vaughn Index, correlating withheld documents to particular
FOIA exemptions.3

Right to Life and the Department then filed

cross motions for summary judgment, see Fed. R. Civ. P. 56, to
determine

whether

the

Department

properly

invoked

these

FOIA

exemptions.

3

A Vaughn index is "[a] comprehensive list of all documents
that the government wants to shield from disclosure in Freedom of
Information Act (FOIA) litigation, each document being accompanied
by a statement of justification for nondisclosure. . . . The name
derives from Vaughn v. R[osen], 484 F.2d 820 (D.C. Cir. 1973)."
A Vaughn index is
Black's Law Dictionary 1693 (9th ed. 2009).
necessary in FOIA litigation, as "only the party opposing
disclosure will have access to all the facts." Church of
Scientology Int'l v. United States Dep't of Justice, 30 F.3d 224,
228 (1st Cir. 1994).
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The district court partially granted and partially denied
both parties' motions for summary judgment.

The district court

found that the "vast majority" of documents were properly withheld
under FOIA exemptions, but that the Department did not meet its
burden to justify withholding a few categories of documents.

The

district court found that Exemption 4 applied to the Manual, the
letter describing the Manual's standards and guidelines, the Fees
and

Collections

Policies,

and

a

document

titled

"Steps

in

Establishing our Fee Schedule."
The district court found that Exemption 5 applied to an
e-mail chain between Department employees and attorneys relating to
the legality of the direct award process, an e-mail chain about the
rationale for the replacement grant's funding amount, and multiple
drafts of a public announcement of the Assistant Secretary's intent
to issue a replacement grant to Planned Parenthood.

The district

court also found that the Department met its burden for invoking
the attorney-client and work product privileges, as recognized by
Exemption 5, for various documents.
Right

to

Life

appeals,

seeking

disclosure

of

the

following documents that are either partially redacted or entirely
withheld:
describing

the
the

Manual
Manual

index

(Vaughn
(Vaughn

index

category
category

38);
39);

a

letter
Planned

Parenthood's Fees and Collection Policies (Vaughn index category
37); "Steps to Establishing our Fee Schedule" document (Vaughn

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index category 35); and various internal Department communications
(Vaughn index categories 11, 15–16, 18–19, 23–25, 30, 33). [BB 1920, 22, 28-29, 31.]
II.

Standard of Review

We review de novo the district court's determination that
the Department was entitled to summary judgment based on its Vaughn
index and affidavits. Carpenter v. United States Dep't of Justice,
470 F.3d 434, 437 (1st Cir. 2006). The government bears the burden
of demonstrating that a claimed exemption applies. Church of
Scientology Int'l v. United States Dep't of Justice, 30 F.3d 224,
228 (1st Cir. 1994).
III.

Analysis

The FOIA obligates federal agencies to "make 'promptly
available' to any person, upon request, whatever 'records' the
agency possesses unless those 'records' fall within any of nine
listed exemptions." Id. (quoting 5 U.S.C. §§ 552(a)(3), (b)).

The

FOIA's primary purpose is to "open agency action to the light of
public scrutiny", "ensur[ing] an informed citizenry, vital to the
functioning of a democratic society." Id. (internal quotation marks
and citations omitted).

The FOIA is the legislative embodiment of

Justice Brandeis's famous adage, "[s]unlight is . . . the best of
disinfectants[.]"

Louis

D.

Brandeis,

Other

People's

Money

92

(Frederick A. Stokes Co. 1914); see also Aronson v. I.R.S., 973
F.2d 962, 966 (1st Cir. 1992) (noting that the FOIA's basic aim is

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"sunlight").

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"The policy underlying [the] FOIA is thus one of

broad disclosure, and the government must supply any information
requested by any individual unless it determines that a specific
exemption, narrowly construed, applies." Church of Scientology, 30
F.3d at 228.
Here, the Department relies on FOIA Exemptions 4 and 5
only.

Exemption 4 shields from disclosure "trade secrets and

commercial or financial information obtained from a person and
privileged or confidential." 5 U.S.C. § 552(b)(4).

Exemption 5

shields from disclosure "inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other
than an agency in litigation with the agency."

Id. § 552(b)(5).

As explained below, we hold that the Department met its burden to
show that Exemption 4 applies to Planned Parenthood's submitted
documents. We also hold that the Department met its burden to show
that Exemption 5 applies to its withheld internal documents.
A.

Planned Parenthood Documents
The Department invokes Exemption 4 to prevent disclosing

portions of the Manual, a letter describing the Manual, the Fees
and

Collections

Policies,

and

a

Establishing our Fee Schedule."

document

titled

"Steps

in

In order to properly invoke

Exemption 4, the Department must demonstrate that the information

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it seeks to protect is both commercial and confidential.4 See id.
§ 552(b)(4).

The FOIA does not define the term "commercial," so

courts have given the term its ordinary meaning. See Pub. Citizen
Health Research Grp. v. Food & Drug Admin., 704 F.2d 1280, 1290
(D.C. Cir. 1983); Am. Airlines, Inc. v. Nat'l Mediation Bd., 588
F.2d 863, 870 (2d Cir. 1978) (noting that "commercial" in the FOIA
context "surely means pertaining or relating to or dealing with
commerce.").

Commercial information is confidential if disclosure

is likely "(1) to impair the Government's ability to obtain
necessary information in the future; or (2) to cause substantial
harm to the competitive position of the person from whom the
information was obtained." 9 to 5 Org. for Women Office Workers v.
Board of Governors, 721 F.2d 1, 8 (1st Cir. 1983) (quoting Nat'l
Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir.
1974) (footnote omitted)).5

4

The Department is not asserting that the submitted
information is financial or privileged under Exemption 4. We thus
focus only on whether the submitted information is commercial and
confidential.
5

9 to 5 Org. expressly left open, as do we here, the
possibility that information can be confidential if disclosure
would harm interests other than the two interests identified in
Nat'l Parks. 9 to 5 Org., 721 F.2d at 9 (noting that "[i]f it can
be demonstrated with particularity that a specific private or
governmental interest will be harmed by the disclosure of
commercial or financial information, the Government should not be
precluded from invoking the protection of [E]xemption 4 merely
because the asserted interest is not precisely one of those two
identified in National Parks").
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Right to Life makes two arguments for why Exemption 4
does

not

apply

to

the

requested

information:

(1)

Planned

Parenthood, as a non-profit, cannot possess commercial information;
and

(2)

even

if

Planned

Parenthood

can

possess

commercial

information, disclosure of the requested information poses no
likelihood of substantial harm to Planned Parenthood's competitive
position.
1.

Non-profits may possess commercial information.
Right to Life argues that because Planned Parenthood is

a non-profit organization, it cannot be said to possess commercial
information within the meaning of Exemption 4.

We disagree.

If

accepted, this argument would amount to a per se exclusion of nonprofit entities from protection under Exemption 4.

Neither the

language of the statute nor common sense lean in Right to Life's
favor here.

The term "commercial" as used in the statute modifies

"information" and not the entity supplying the information.

See 5

U.S.C. § 552(b)(4). All sorts of non-profits--hospitals, colleges,
and even the National Football League--engage in commerce as that
term is ordinarily understood. How the tax code treats income from
that commerce is a separate issue that has no bearing on our
inquiry here.
Apart

from

arguing

that

non-profits

cannot

possess

commercial information, Right to Life does not claim that the

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information in the documents is somehow not otherwise commercial.6
These documents--the Manual, the letter describing the Manual, the
fees and collections policies, and the "Steps in Establishing our
Fee Schedule" document--outline Planned Parenthood's operations and
fees.

That is to say, they outline the amounts Planned Parenthood

charges customers for its services, and how it produces those
services for sale.

These documents thus surely pertain or relate

to commerce as that term is ordinarily understood. See, e.g., Pub.
Citizen Health Research Grp., 704 F.2d at 1290.
2.

The subject documents are confidential.

We turn now to the question of whether this undoubtedly
commercial information is also 'confidential' under FOIA Exemption
4.

See

9

Commercial

to

5

Org.,

721

information

is

F.2d

at

8;

confidential

5

U.S.C.

under

§

552(b)(4).

Exemption

4

if

disclosure is likely to either: (1) "impair the Government's
ability to obtain necessary information in the future"; or (2)
"cause substantial harm to the competitive position of the person
from whom the information was obtained." 9 to 5 Org., 721 F.2d at
8 (quoting Nat'l Parks, 498 F.2d at 770).
arguing the first prong.

The Department is not

When evaluating the second prong, "the

6

Right to Life does make a fall back argument that, even if
a non-profit can possess commercial information, information
tendered in order to get a federal grant (i.e., getting a check for
rendering services) is somehow per se non-commercial.
But no
precedent supports such a claim. Nor can we see any reason why the
nature of the information somehow changes when supplied to get such
a grant.
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court need not conduct a sophisticated economic analysis of the
likely effects of disclosure." Pub. Citizen Health Research Grp.,
704 F.2d at 1291. But "[c]onclusory or generalized allegations"
will not suffice. Id.

Parties opposing disclosure need not

demonstrate actual competitive harm; instead, they need only show
actual competition and a likelihood of substantial competitive
injury in order to "bring [that] commercial information within the
realm of confidentiality." Id.; accord Sharkey v. Food & Drug
Admin., 250 F. App'x 284, 288 (11th Cir. 2007); Lion Raisins Inc.
v. United States Dep't of Agric., 354 F.3d 1072, 1079 (9th Cir.
2004); Utah v. United States Dep't of Interior, 256 F.3d 967, 970
(10th Cir. 2001); Natural Res. Def. Council, Inc. v. United States
Dep't of Interior, No. 13 Civ. 942(PAE), 2014 WL 3871159, at *13
(S.D.N.Y.

Aug. 5, 2014).
For the purposes of awarding the grant in 2011, both New

Hampshire and the Department determined that Planned Parenthood was
the only Title X provider in the region.

Right to Life contends

that the Department cannot change positions and now argue against
disclosure on the ground that Planned Parenthood would likely face
substantial competitive harm.
Right to Life's view of actual competition is myopic,
focusing only on the ad-hoc, non-competitive grant process that
took place in 2011.

The district court aptly noted that Planned

Parenthood faces plenty of competition from other entities for

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Many of Planned Parenthood's services are also provided

by hospitals and health clinics.

Further, the Title X grant

process in New Hampshire will be open to other bids in the future.
Even in 2011, a potential competitor--the Manchester Community
Health Center--requested information from the Department about
applying

for

the

same

grant.

Although

Planned

Parenthood

admittedly did not compete for the federal grant in 2011, it
certainly does face actual competitors--community health clinics-in a number of different arenas, and in future Title X bids.

This

satisfies the "actual competition" requirement. See, e.g., Utah,
256 F.3d at 970–71.
Having established that the documents contain commercial
information, and that Planned Parenthood faces actual competition
in a variety of contexts, we turn to the specific documents Right
to Life wants disclosed, and whether disclosure of those documents
would

likely

cause

substantial

competitive

harm

to

Planned

Parenthood.7
The Manual, and thus the letter that describes it,
"provides a model for operating a family planning clinic and for

7

We gauge the risk of substantial harm to Planned
Parenthood's competitive position as of the time of the district
court decision. See, e.g., N.Y. Times Co. v. United States Dep't
of Justice, 756 F.3d 100, 110 n.8 (2nd Cir. 2014). Requiring an
agency to update its FOIA responses "based on post-response
occurrences could create an endless cycle of judicially mandated
reprocessing." Bonner v. United States Dep't of States, 921 F.2d
1148, 1152 (D.C. Cir. 1991).
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providing . . . services consistent with [Planned Parenthood's]
unique model of care."

The National Medical Committee of Planned

Parenthood

of

Federation

America

developed

the

Manual,

in

collaboration with local affiliate chapters, like the Northern New
England branch.

Planned Parenthood treated these documents as

confidential information not generally available to the public.
potential

future

competitor

could

take

advantage

of

A

the

institutional knowledge contained in the Manual, and the letter
describing the Manual, to compete with Planned Parenthood for
patients, grants, or other funding. We therefore agree with the
district court that the Department met its burden for invoking
Exemption 4 for the Manual and Medical Standards, and the letter
containing descriptions of the same--Vaughn index categories 38 and
39.
The Fees and Collections Policies and the "Steps in
Establishing our Fee Schedule" documents contain information that
"identifies cost differentials between services, identifies all
services provided[,] and sets forth the fee scale."

Planned

Parenthood treated these documents as confidential information not
generally available to the public.

Pricing information like that

contained in these documents is undoubtedly valuable information
for competitors. Nor is there any suggestion that competitors have
access to this information (other than perhaps anecdotally and
incompletely).

We thus agree with the district court that the

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Department

met

substantial

its

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burden

competitive

for

harm

Date Filed: 02/04/2015

establishing

from

the

a

Entry ID: 5884347

likelihood

disclosure

of

of

Planned

Parenthood's "Steps in Establishing our Fee Schedule" document and
its Fees and Collections Policies--Vaughn index categories 35 and
37.8
B.

Department Documents
Right to Life also seeks internal Department documents

that are withheld under Exemption 5. Exemption 5 shields documents
that are normally immune from civil discovery, including those
protected

by

the

deliberative

process

and

attorney-client

privileges. See Nat'l Labor Relations Bd. v. Sears, Roebuck & Co.,
421 U.S. 132, 149-55 (1975); see also Elec. Frontier Found. v.
United States Dep't of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014)
(Exemption 5 applies "to documents that are predecisional and
deliberative,

meaning

they

reflect

advisory

opinions,

recommendations, and deliberations comprising part of a process by
which

governmental

decisions

and

policies

are

formulated")

(quotations and citations omitted); Mead Data Central, Inc. v.
United States Dep't of Air Force, 566 F.2d 242, 252 (D.C. Cir.
1977) (Exemption 5 "is intended to protect the quality of agency

8

The district court applied the lessened standard to
voluntary submissions, enunciated in Critical Mass Energy Project
v. Nuclear Regulatory Comm'n, 975 F.2d 871, 879 (D.C. Cir. 1992).
See New Hampshire Right to Life v. Dep't of Health and Human Serv.,
976 F.Supp.2d 43, 54 (D. N.H. Sept. 30, 2013). We decline at this
time to adopt that lessened standard for voluntary submissions.
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decision-making by preventing the disclosure requirement of the
FOIA from cutting off the flow of information to agency decisionmakers.

Certainly

this

covers

professional

questions which bears on those decisions.").

advice

on

legal

Exemption 5 protects

government "agencies from being 'forced to operate in a fishbowl.'"
Id. (quoting Envtl. Prot. Agency v. Mink, 410 U.S. 73, 87 (1973)).
It

facilitates

subordinates

government

will

feel

decision

free

to

making

provide

by:

(1)

uninhibited

assuring
opinions,

(2) protecting against premature disclosure of proposed government
policies, and (3) preventing confusion among the public that may
result

from

releasing

various

rationales

for

agency

action.

Providence Journal Co. v. United States Dep't of Army, 981 F.2d
552, 557 (1st Cir. 1992)(quoting Coastal States Gas Corp. v. Dep't
of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).
Right to Life advances two arguments for rejecting the
Department's reliance on Exemption 5:

First, it argues that some

of the documents that are outside the scope of the attorney-client
privilege

are

also

not

predecisional

as

a

matter

of

simple

chronology; and, second, it argues that the Department waived any
objection to producing the documents that reflect the opinions of
Department lawyers because the Department adopted the opinions of
legal counsel as policy of the Department.
argument in turn.

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1.

The withheld documents are all predecisional.

To

fit

within

Exemption

5,

the

Department

must

demonstrate that the communications were both "predecisional" and
"deliberative."

Providence Journal, 981 F.2d at 557 (internal

quotation omitted).

Right to Life argues that the documents are

not deliberative only because they are not predecisional, so we
limit our inquiry to whether they are indeed predecisional. A
document is predecisional if the agency can: "(1) pinpoint the
specific agency decision to which the document correlates, (2)
establish that its author prepared the document for the purpose of
assisting the agency official charged with making the agency
decision, and (3) verify that the document precedes, in temporal
sequence, the decision to which it relates."
quotation marks and citations omitted).

Id.

(internal

The dispute here centers

on the temporal sequence of Department documents and decisions, and
on identifying the decisions to which the particular documents
relate.

The following chronology outlines the relevant decisional

timeline.
On August 8, 2011, there was an e-mail chain (Vaughn
index category 11) between Department employees and Office of
General Counsel attorneys regarding whether the Department could
legally issue a replacement grant. On August 9, Secretary Sebelius
was briefed on the issue.

Subsequently, on August 10, the White

House was also briefed on this alternative plan.

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asserts that this briefing constituted "approval from the White
House."

Right to Life cites as evidence of White House "approval"

an informal e-mail stating, "[t]he WH was briefed and they are
getting down to pennies and nickels."

On August 12, there was an

e-mail chain (Vaughn index category 15) discussing a draft document
regarding funding for the replacement grant.

On August 18, there

was another e-mail chain addressing funding for the replacement
grant (Vaughn index category 18).
executive

officer

signed

a

Finally, on August 19, OASH's

blank

line

indicating

"Approve"

underneath the heading "Decision" on the Sole Source Justification
memorandum.
On September 28, 2011, three out of five members of the
New Hampshire Executive Council filed a letter protesting the
Department's decision with the Government Accountability Office
("GAO"), carbon copying Kathleen Sebelius, Department Secretary.
In a letter dated October 5, 2011, the GAO declined to review the
Executive Council members' protest for lack of jurisdiction.

The

Department later decided not to provide its own response.
Right to Life contends that the decision to directly
award Title X funds to Planned Parenthood was made at the White
House briefing on August 10, 2011.
pertinent

documents

created

after

If this were true, all
that

date

would

be

post-

decisional, and thus not exempt from disclosure under Exemption 5.
See id.

The record, however, does not support Right to Life's

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On its face, the e-mail Right to Life cites as

evidence of White House approval indicates that a decision, while
perhaps close, had not yet been finalized.

The phrase "getting

down to pennies and nickels" plainly suggests a pending decision,
not a final decision for Exemption 5 purposes.

That leaves

August 19--the date the OASH executive signed the approval line on
the Sole Source Justification memorandum--as the date the decision
was made to proceed with a direct award process.9

We therefore

reject Right to Life's argument that Vaughn index categories 15–16
and 18–19, all created prior to August 19 were post-decisional
documents.10
We turn next to the documents covered by Vaughn index
categories 23–25 and 33.

All of these documents post-date the

August 19 decision to proceed with a non-competitive sole-source
grant process.
decisional.

Therefore, Right to Life argues, they are not pre-

The problem with this argument is that there were

9

Throughout its brief, Right to Life touts the title of the
"Sole Source Justification" memorandum, and suggests that it
indicates that the substance of the memorandum itself is "a post
hoc justification of a decision that had been made several days
earlier." Read as a whole, the document's substance makes clear
that it is a recommendation letter, seeking approval from a
superior: "I recommend that you approve this request for a sole
source replacement grant to Planned Parenthood of Northern New
England."
10

Categories 16 and 19 are undated, but, given their content,
necessarily predate the August 19 decision. Category 16 covers
drafts of a rationale for the grant funding amount. Category 19
covers early drafts of the Sole Source Justification memorandum.
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other relevant decisions made on or after August 19, including: (1)
the Department's decision on September 9 to publicly announce its
intent to issue the grant award to Planned Parenthood, and (2) the
Department's decision to not provide a separate response to New
Hampshire's protest of that direct award.
Vaughn index categories 23–25 relate to and pre-date the
September 9 public announcement that the Department intended to
directly award a grant to Planned Parenthood. These documents deal
with the Department's decision of how and what to communicate to
the public, which is a decision in and of itself.
categories 23–25 are not post-decisional.

Vaughn index

Right to Life simply

misidentifies the decision to which these documents relate.
Similarly,

the

documents

included

in

Vaughn

index

category 33 involve communications between Department employees and
attorneys relating to whether the Department should also respond to
the New Hampshire Executive Council's protest.

This e-mail chain

necessarily predates any decision by the Department to withhold a
separate response to the protest.

We are satisfied that the

Department appropriately met its burden for withholding these
documents under Exemption 5.
2.

The Department Did Not Waive Its Privileges By
Adopting Counsel's Legal Advice.

In responding to Right to Life's FOIA request, the
Department revealed that an attorney in the Office of General
Counsel had advised the Director of the OASH Grants Management
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Office that it was legal to issue a replacement grant.
Department

redacted

any

material

reasoning behind such advice.

that

revealed

the

basis

The
or

The Department never publicly

announced either the advice or the reasoning behind the advice.
Nor does it rely on the advice in this litigation.
Right to Life advances a single argument for finding that
the Department must now produce the communication with OCG counsel.
It claims that, by issuing the replacement grant, the Department
adopted counsel's advice as "policy of the Agency."11
The record provides no factual support for this claim
unless one presumes that every time an agency acts in accord with
counsel's view it necessarily adopts counsel's view as "policy of
the Agency." As a categorical rule this makes no sense, especially
where counsel's legal advice is simply that there is no impediment
to the agency doing what it wants to do.
For precedent, Right to Life points only to Nat'l Labor
Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132 (1975), and
Brennan Center v. United States Dep't of Justice, 697 F.3d 184 (2nd
Cir. 2012).

Each of these opinions, however, hinged disclosure of

legal counsel's advice on whether the agency actually adopted the
reasoning behind counsel's opinion as its own.

See

Renegotation

Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184–85 (1975)

11

Right to Life does not argue that the Department waived its
privilege by failing to redact from the Sole Source Justification
memorandum the short description of the conclusion of counsel.
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(companion case to Sears, holding that "[if] the evidence utterly
fails to support the conclusion that the reasoning in the reports
is adopted by the Board as its reasoning, even when it agrees with
the conclusion of a report, . . . the reports are not final
opinions and do fall within Exemption 5."); Brennan Center, 697
F.3d at 197 ("[T]he fact that the agencies acted in conformity with
the . . . memoranda [does not] establish that the agencies adopted
their reasoning.").

Here, the Department never adopted, or even

mentioned, counsel's reasoning.
"Mere reliance on a document's conclusions"--at most what
we

have

here--"does

not

necessarily

involve

reliance

on

a

document's analysis; both will ordinarily be needed before a court
may properly find adoption or incorporation by reference." National
Council of La Raza v. Dep't of Justice, 411 F.3d 350, 358 (2nd Cir.
2005); Elec. Frontier Found. v. United States Dep't of Justice, 739
F.3d 1, 10–11 (D.C. Cir. 2014) ("[T]he Court has refused to equate
reference to a report's conclusions with adoption of its reasoning,
and it is the latter that destroys the privilege.")
It

is

a

good

thing

that

Government

officials

on

appropriate occasion confirm with legal counsel that what the
officials wish to do is legal.

To hold that the Government must

turn over its communications with counsel whenever it acts in this
manner could well reduce the likelihood that advice will be sought.
Nothing in the FOIA compels such a result.

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Conclusion

For the foregoing reasons, we affirm the district court's
rulings.
So ordered.

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