A federal judge on Thursday rejected requests by two conservative organizations for additional documents relating to involvement that former Solicitor General Elena Kagan may have had in litigation over the Patient Protection and Affordable Care Act.
In Media Research Center v. U.S. Department of Justice and Judicial Watch v. U.S. Department of Justice, U.S. District Judge Ellen Segal Huvelle granted summary judgment in favor of the Justice Department. Media Research Center and Judicial Watch, in separate actions, had challenged the adequacy of the department’s search of its files in response to their Freedom of Information Act requests. The department had produced a number of documents, redacted others under FOIA exemptions, and withheld others after deciding they were not “agency records” subject to FOIA.
The Supreme Court currently has pending six petitions for review involving the Affordable Care Act. Justice Kagan testified during her confirmation hearings that she did not participate in discussions about litigation over the act.
The two organizations claimed that DOJ had not produced or identified documents relating to one meeting that Kagan mentioned attending and the Attorney General’s morning meetings, which Kagan indicated that she attended in the first three or so months of 2010.
“Plaintiffs’ argument, that the topics within the FOIA request must have been discussed at these meetings and that records related to this must have existed, is simply conjecture and is therefore insufficient to justify a finding that the search was inadequate,” wrote Huvelle.
They also challenged the adequacy of the search because DOJ did not search the files of the Attorney General. Judicial Watch argued that the search was not adequate because the Office of Solicitor General searched the files and email of Kagan, her confidential assistant, and then-Principal Deputy Solicitor General Neal Katyal, but did not search the records of the other deputies in the office. “However, this does not render the search inadequate where, as here, DOJ has demonstrated that its decision to search the files of these three individuals was reasonably calculated to uncover relevant documents,” the judge explained.
And the two organizations also argued that the search was inadequate because DOJ did not use certain search terms, such as “Attorney General” or “morning meeting.” Huvelle said, “However, plaintiffs’ FOIA requests did not set forth a discrete list of search terms, and even if [either plaintiff] had included such a list, there is no bright-line rule requiring agencies to use the search terms proposed in a FOIA request.”
Huvelle also rejected their challenges to the redactions by the department and to the department’s claims of attorney-work product privilege.
Judicial Watch President Thomas Fitton said, “Our lawyers will review and consider our next steps. Generally speaking though, I think this and another case we’re involved in with DOJ is really illustrative of the collapse of the administration’s commitment to full transparency. On the other hand, it was important for us to pursue this litigation because we did learn more about Solicitor General Kagan that calls into her question her testimony to the Senate.”