Last September, a federal district court in Washington, D.C. issued an opinion on Freedom of Information Act (FOIA) requests made by Judicial Watch to the CFPB for documents relating to Richard Cordray’s recess appointment as CFPB Director. With regard to all but one document, the court agreed with the CFPB’s position that it was entitled to rely on the deliberative process privilege, the attorney client/attorney work product privilege, or the presidential communications privilege to withhold certain records.
The one document as to which court the disagreed with the CFPB’s invocation of privilege was an e-mail from a White House staffer to a CFPB employee. The court concluded that the deliberative process privilege was only available to certain White House employees and the CFPB had not provided the information necessary to determine whether the staffer who had sent the e-mail worked in a capacity covered by the privilege. The court therefore granted the CFPB’s motion for summary judgment in part and denied it in part.
On March 27, 2014, in an opinion ruling on the CFPB’s motion for reconsideration, the district court changed its position and concluded that the CFPB was also entitled to withhold the e-mail from the White House staffer. In its new analysis, the court no longer made the capacity in which the staffer worked determinative of whether the deliberative process privilege applied. Instead, the court looked to the e-mail’s subject matter to determine whether the privilege applied. Because the e-mail involved “advice on preparing for an upcoming Congressional hearing regarding Mr. Cordray,” the court held that it could be withheld under the deliberative process privilege which protects “internal communications as part of an Executive Branch decision-making process regarding Congressional hearings.”
Accordingly, the court granted in full the CFPB’s motion for summary judgment and dismissed the case. Earlier this month, the CFPB issued its first FOIA Report, which was accompanied by the report of its Chief FOIA Officer.