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DC Circuit Applies FOIA Exemption to High-Speed Rail Communications


The United States District Court for the District of Columbia has protected discussions between California’s High Speed Rail Authority (CHSRA) and the Federal Rail Authority (FRA) from a Freedom of Information Act (FOIA) request filed by Judicial Watch. Judicial Watch v. U.S. Dept. of Trans. (D.D.C. 2013) 950 F. Supp.2d 213. The protected discussions concerned the development of environmental impact reports for different proposed California High Speed Rail (CHSR) routes and ensuring CHSR properly complied with state and federal environmental laws including CEQA and NEPA.  CHSRA and FRA are “co-lead” agencies on the CHSR project jointly developing the required environmental impact reports. FRA is responsible for ensuring the project complies with NEPA and CHSRA is responsible for compliance with CEQA.

The court granted summary judgment for the Department of the Interior finding that certain records reflecting discussions between CHSRA and FRA were properly withheld from disclosure under FOIA’s Exemption 5. Exemption 5 protects from disclosure “inter-agency and intra-agency” documents relating to the “deliberative process” by which the government makes policy decisions. Dept. of Interior v. Klamath Water Users (2001) 532 U.S. 1, 8. The exemption exists to allow government officials to speak candidly in formulating policy, to prevent the untimely disclosure of proposals before adoption, and to avoid the confusion that would result from disclosing interim rationales that did not form a basis for the agency’s eventual action.

While a strict reading of “intra-agency” would only include employees within the same agency, the D.C. Circuit had expanded the term to include communications with outside consultants, Senators, and former Presidents, so long as the communication aided the agency’s decision-making process. The U.S. Supreme Court in Klamath, supra, set a limit on this expansive view.  Specifically, Klamath  stated that “intra-agency” could not include communications between an agency and non-agency parties with an outside interest in a government benefit adverse to its competitors, even if those communications relate to the agency’s decision-making process.

Here, Judicial Watch contended that CHSRA had an outside interest independent of FRA in seeking large amounts of limited federal funds to support the CHSR and complying with state law requirements that did not overlap with NEPA.

The court rejected these arguments for several reasons. First, even though some interests of CHSRA were distinct from FRA, those interests were too remote from the actual communications at issue in the case. Specifically, the communications did not advocate for funding for California, rather they related to helping FRA satisfy its obligations under NEPA. Second, the benefits that CHSRA sought were not at the expense of other parties. There was not a finite amount of funds available with California vying for a benefit at the expense of other states. Finally, the court noted that the relationship between CHSRA and FRA was created by statute. As a result, the communication between the agency and non-agency deserved greater support.

Because Judicial Watch could not show that CHSRA sought a benefit outside of complying with environmental laws, the court granted summary judgment for the government agencies and protected the discussions between CHSRA and FRA.

KEY POINT

This decision affirms that the D.C. Circuit will continue to apply a broad interpretation of the “intra-agency” component of FOIA Exemption 5 even after the Supreme Court’s decision in Klamath, so long as the communications do not relate to an outside party’s interest in obtaining a government benefit at the expense of others

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dateFebruary 18th, 2014byby


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