UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PROPERTY OF THE PEOPLE, INC. and : RYAN NOAH SHAPIRO, : : Plaintiffs, : Civil Action No.: 17-1677 (RC) : v. : Re Document Nos.: 25, 27 : OFFICE OF MANAGEMENT AND : BUDGET, : : Defendant. :

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS’ CROSS- MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Before the Court for the second time on cross-motions for summary judgment, this

Freedom of Information Act (“FOIA”) case now involves only one narrow dispute. Plaintiffs

Ryan Shapiro and Property of the People, Inc. contend that they are entitled to eight entries in a

Microsoft Outlook calendar maintained by the Director of the Office of Management and Budget

(“OMB”). According to OMB, each of these eight entries corresponds to a meeting of the

National Security Council (“NSC”) that concerned one of three subject matters: “foreign

relations policy,” “transportation policy,” or “infrastructure policy.” But beyond those general

subject-matter descriptions, OMB has withheld the eight entries in their entirety—asserting the

presidential communications privilege. The sole question for the Court, then, is whether OMB

has established that this privilege claim is proper. For the reasons provided below, OMB has met

its burden, so the Court grants the agency’s motion and denies Plaintiffs’. II. LEGAL STANDARD

As the Court explained in its prior opinion in this case, FOIA “sets forth a policy of broad

disclosure of Government documents in order to ensure an informed citizenry, vital to the

functioning of a democratic society.” Prop. of the People, Inc. v. Office of Mgmt. & Budget,

(D.D.C. 2018) (internal quotation marks omitted) (quoting FBI v.

Abramson,

(1982)). “The Act requires government agencies to make

information available upon request, unless the information is protected by one of nine statutory

‘exemptions.’” Judicial Watch, Inc. v. U.S. Dep’t of Def.,

(D.C. Cir. 2017)

(quoting NLRB v. Sears, Roebuck & Co.,

(1975)); see also

(b).

Cases arising under the Act “typically and appropriately are decided on motions for summary

judgment.” Pinson v. Dep’t of Justice,

(D.D.C. 2018) (quoting Defs. of

Wildlife v. U.S. Border Patrol,

(D.D.C. 2009)). Summary judgment is

generally warranted when “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). For these purposes, a fact is

“material” if it is “capable of affecting the substantive outcome of the litigation.” Pinson,

. “A dispute is genuine if there is sufficient evidence for a reasonable jury to

return a verdict for the nonmovant.” Bloche v. Dep’t of Def.,

(D.D.C.

2019).

This all means that, in the “FOIA context, a government agency is ‘entitled to summary

judgment if no material facts are genuinely in dispute and the agency demonstrates that its search

for responsive records was adequate, that any exemptions claimed actually apply, and that any

reasonably segregable non-exempt parts of the records have been disclosed after redaction of

exempt information.’”

(internal quotation marks omitted) (quoting Prop. of the People, 330

2 F. Supp. 3d at 380). The burden is thus on the government, and that “burden does not shift even

when the requester files a cross-motion for summary judgment because ‘the [g]overnment

ultimately has the onus of proving that the documents are exempt from disclosure,’ while the

‘burden upon the requester is merely to establish the absence of material factual issues before a

summary disposition of the case could permissibly occur.’” Hardy v. ATF,

(D.D.C. 2017) (internal quotation marks and brackets omitted) (quoting Pub. Citizen Health

Research Grp. v. FDA,

, 904–05 (D.C. Cir. 1999)).

To meet its burden, the government may rely on affidavits or “declarations that are

reasonably detailed and non-conclusory.” Pinson,

. The Court may grant

summary judgment based on such materials when they “demonstrate that the information

withheld logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.” Larson v. Dep’t of State,

(D.C. Cir. 2009) (quoting Miller v. Casey,

(D.C. Cir. 1984)). Thus,

“[u]ncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the

exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep’t of State,

(D.C. Cir. 2011). That said, FOIA exemptions must also be “narrowly construed,” and

“conclusory and generalized allegations of exemptions are unacceptable.” Prop. of the People,

(quoting Morley v. CIA,

, 1114–15 (D.C. Cir. 2007)).

III. ANALYSIS

As the Court already noted, the parties’ dispute at this stage of the proceedings is narrow.

Plaintiffs now challenge only the withholding of eight calendar entries related to meetings of the

NSC. According to OMB, those eight entries are exempt from disclosure under FOIA

Exemption 5, which applies to agency records “that would not be available by law to a party . . .

3 in litigation with the agency,”

(b)(5). The exemption, in other words,

“incorporates the traditional privileges that the Government could assert in civil litigation against

a private litigant—including the presidential communications privilege.” Bloche,

(internal quotation marks omitted) (quoting Loving v. Dep’t of Def.,

(D.C. Cir. 2008)).

As its name likely suggests, the presidential communications privilege “preserves the

President’s ability to obtain candid and informed opinions from his advisors and to make

decisions.” Loving,

. It “applies to communications made in the process of

arriving at presidential decisions,” and it protects those communications in their entirety. In re

Sealed Case,

(D.C. Cir. 1997). Naturally, then, the privilege protects

“communications directly involving and documents actually viewed by the President” during

that process of shaping policies and making presidential decisions. Judicial Watch, Inc. v. Dep’t

of Justice,

(D.C. Cir. 2004); see also Nixon v. Adm’r of Gen. Servs.,

(1977). But the privilege extends further as well: to communications “‘solicited

and received’ by . . . ‘immediate White House advisers’”—those with “‘broad and significant

responsibility for investigating and formulating the advice to be given to the President.’” Loving,

(omission in original) (quoting Judicial Watch v. Dep’t of Justice,

).

Here, OMB does not assert that the eight NSC meetings constitute communications that

actually reached the President. The agency concedes that the President did not himself attend the

majority (and maybe all) of the eight meetings. See Def.’s Opp’n Pl.’s Cross-Mot. Summ. J. at 2

n.1, ECF No. 31. Rather, most of these meetings, OMB says, involved the NSC’s Principals

Committee (“PC”) or Principals Small Group (“PSG”)—which are the “Cabinet-level senior

4 interagency forum[s] for considering policy issues” affecting national security, see National

Security Presidential Memorandum-4 (“NPRM-4”),

, 16882 (Apr. 4, 2017). 1

Notwithstanding the President’s absence, OMB contends that the eight meetings are privileged

because the NSC is, by its nature, a body whose sole purpose is to advise the President.

Consequently, any NSC meeting, OMB argues, is a communication “solicited and received” by

the President’s immediate advisers.

For their part, Plaintiffs avoid any argument that the Outlook calendar entries are not the

kind of document that can be covered by the privilege. Instead, Plaintiffs focus on the fact that

most of the members of the NSC (and the PC and PSG) are Cabinet officials or other agency

heads—individuals whose primary responsibilities are to run their respective agencies, not

formulate advice to the President. Thus, according to Plaintiffs, OMB has not established how

these particular NSC communications were “solicited and received” by immediate White House

advisers.

In the Court’s view, OMB has the better of these arguments, for at least four reasons

taken together:

First, though not dispositive, OMB is correct that the NSC and its subcommittees

exercise no “meaningful non-advisory authority.” Armstrong v. Exec. Office of the President,

(D.C. Cir. 1996). Indeed, “Congress has not itself . . . delegated substantial

authority to the NSC.”

By statute, the Council’s functions are to:

(1) advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as

1 The PSG is not mentioned specifically in NPRM-4, and neither of OMB’s submitted declarations explicitly address it either. In one of its briefs, however, OMB clarifies that the PSG is a sub-group of the PC and is “chaired by either the National Security Advisor or the Homeland Security Advisor, with the Chief of Staff to the President as a regular attendee.” Def.’s Opp’n at 6 & n.2. Plaintiffs do not question the truthfulness of these statements.

5 to enable the Armed Forces and the other departments and agencies of the United States Government to cooperate more effectively in matters involving national security;

(2) assess and appraise the objectives, commitments, and risks of the United States in relation to the actual and potential military power of the United States and make recommendations thereon to the President;

(3) make recommendations to the President concerning policies on matters of common interest to the departments and agencies of the United States Government concerned with the national security; and

(4) coordinate, without assuming operational authority, the United States Government response to malign foreign influence operations and campaigns.

(b) (emphasis added).

Historically, the President has not delegated significant non-advisory authority to the

NSC either. See Armstrong, 90 F.3d at 561–65 (reviewing specific Executive Order delegations

to the NSC and concluding that the NSC still filled no “role outside its statutory assignment to

advise and assist the President”). And there is no indication that the current administration has

departed from that tradition. See NPRM-4, 82 Fed. Reg. at 16881 (President Trump organizing

“system for national security policy development and decision making” so as to “advise and

assist” him in “ensur[ing] the safety and security of the American people”). Again, this general

contextual background is not dispositive, but it is certainly relevant that the NSC plays no

“substantive role apart from that of the President,” Armstrong,

, and exists to

“advise” and “make recommendations to” him,

(b)(1)–(3). Against that

backdrop, it seems at least likely that the meetings at issue here were “intimately connected to

. . . presidential decisionmaking.” Sealed Case,

.

6 Second, the structure and composition of the NSC leave little doubt that the meetings fall

within the ambit of the presidential communications privilege. Indeed, Council-wide meetings

are generally chaired by the President himself. See NPRM-4, 82 Fed. Reg. at 16882. Those

meetings are clearly privileged, as they constitute policy-oriented “communications directly

involving . . . the President.” Judicial Watch v. Dep’t of Justice,

. Certain

members of the Council are designated by statute, but the President also has the authority to

name other members and invite additional government officials as regular attendees. See

(c). Indeed, the OMB Director currently falls into the latter category; President

Trump has invited him to “any NSC meeting” as an “attendee.” NPRM-4, 82 Fed. Reg. at

16882.

The PC and PSG meetings at issue in this case, meanwhile, are generally chaired by the

National Security Advisor, who may delegate the role to the Homeland Security Advisor. Id.;

Defs.’ Opp’n at 6. Each of those positions easily qualifies as an immediate White House adviser

for purposes of the privilege—a premise that even Plaintiffs do not appear to dispute. Both

positions “have broad and significant responsibility for investigating and formulating the advice

to be given to the President” on matters of national security and foreign policy. Sealed Case,

. The National Security Advisor is “responsible . . . for determining the agenda

for,” not just PC and PSG meetings, but the NSC as a whole, which, as the Court just noted,

exists to advise the President. NPRM-4, 82 Fed. Reg. at 16882. Only in the National Security

Advisor’s “sole discretion” may that responsibility be delegated to the Homeland Security

Advisor. Id. As chair of PC and PSG meetings, the National Security Advisor or Homeland

Security Advisor also must “determine the agenda” of the specific meeting at issue “in

7 consultation with the appropriate committee members.” Id. And they are responsible for

extending invitations to specific meetings at their “discretion.” Id.

More generally, the National Security Advisor and Homeland Security Advisor do not

require Senate confirmation and have “no official role outside the walls of the White House.”

Protect Democracy Project, Inc. v. U.S. Dep’t of Def.,

(D.D.C. 2018).

That makes them different from Cabinet officials and many other agency heads, including the

OMB Director. Those Cabinet-level officials “exercise substantial independent authority[,]

perform other functions in addition to advising the President,” and lead “operations that do not

call ultimately for direct decisionmaking by the President,” so the presidential communications

privilege has more limited application to their records. Sealed Case,

. The same

concerns are not present with respect to the National Security Advisor or Homeland Security

Advisor, though. In fact, in light of the considerations mentioned above, another district court in

this circuit has already held that the Deputy NSC Legal Adviser constitutes immediate White

House staff for purposes of the privilege. See Protect Democracy Project, 320 F. Supp. 3d at

173–74. It follows, then, that the Deputy Legal Adviser’s superiors—who work even closer to

the President—qualify as well. See Sealed Case,

(stating that privilege applies

only to “communications . . . close enough to the President to be revelatory of his deliberations

or to pose a risk to the candor of his advisers”); Ass’n of Am. Physicians & Surgeons, Inc. v.

Clinton,

, 910 (D.C. Cir. 1993) (“operational proximity” to President determines

whether “President’s confidentiality interest” is implicated (emphasis omitted)).

To be sure, as Plaintiffs note, certain members of the NSC, PC, and PSG are Cabinet

officials or agency heads—including, again, the OMB Director who is the subject of this lawsuit.

As the Court just mentioned, the presidential communications privilege must be applied with

8 caution to the records of those “‘dual hat’ presidential advisers.” Sealed Case,

.

The government bears the burden in those instances “of proving that the communications

occurred in conjunction with the process of advising the President.”

Here, the role and structure of the NSC go a long way in making that required showing.

But more to the point, Plaintiffs’ misplaced focus on the mere presence of dual hat advisers at

the meetings changes nothing. What matters for purpose of the privilege is who solicits the

communication, and whether that person also ultimately receives it. In the context of NSC

meetings, it is the President, the National Security Advisor, or the Homeland Security Advisor

who does the soliciting, as it is those individuals who set the agenda and confer the invitations.

And there is little doubt that they receive the communications as well, as they have to chair the

meetings. So yes, Plaintiffs are correct that the Secretary of State, Secretary of Treasury,

Secretary of Defense, Secretary of Energy, and others may be there, but it is implausible that

those officials are the ones calling the meetings—because they lack the authority do so. Those

dual hat officials certainly are not the ones who request the OMB Director’s presence either,

because the President already did that by inviting the Director to “any NSC meeting” as an

“attendee.” NPRM-4, 82 Fed. Reg. at 16882. Simply put, despite the attendance of Cabinet

officials and agency heads, the NSC’s structure gives the Court confidence that the meetings

“occurred in conjunction with the process of advising the President.” Sealed Case,

.

Third, the Court thinks it relevant that the D.C. Circuit has held that the NSC is not itself

an “agency” subject to FOIA. Armstrong,

. In reaching that conclusion, the

circuit stressed that 1974 FOIA amendments made clear that the Act was not “meant to cover

‘the President’s immediate personal staff or units in the Executive Office whose sole function is

9 to advise and assist the President.’”

at 558 (quoting H.R. Rep. No. 93-1380, at 14 (1974)

(Conf. Rep.)). The NSC fell within that category, the circuit explained, because of reasons

similar to those already mentioned here: “the close working relationship between the NSC and

the President indicate[d] that” the Council was “more like ‘the President’s immediate personal

staff’ than it [was] like an agency exercising authority, independent of the President.”

.

Whether an entity constitutes an “agency” for FOIA purposes is admittedly a different

question than whether a FOIA exemption applies. But the D.C. Circuit has indicated that one

inquiry can still be “instructive” for the other, because “each inquiry ultimately involves

shielding government documents from public scrutiny.” Judicial Watch v. Dep’t of Justice,

. And it matters here that a member of the public could not obtain the NSC’s

schedule directly from the NSC. Indeed, in cases “where Congress has intentionally excluded a

governmental entity from [FOIA],” the D.C. Circuit “ha[s] been unwilling to conclude that

documents or information of that entity can be obtained indirectly, by filing a FOIA request with

an entity that is covered under” the Act. Judicial Watch, Inc. v. U.S. Secret Service,

(D.C. Cir. 2013) (citing United We Stand Am., Inc. v. IRS,

(D.C. Cir.

2004); Goland v. CIA,

(D.C. Cir. 1978)) .

Thus, in Judicial Watch v. Secret Service, the circuit rejected an attempt to use FOIA to

obtain the White House visitor logs from the Secret Service.

at 224–26. There, the circuit

began with the “undisputed” premise that a litigant could “not obtain the appointment calendars

(or visitor logs)” of “individuals employed in the ‘Office of the President’ . . . by sending a FOIA

request to the White House Complex,” where those individuals work.

225 (quoting

Armstrong v. Exec. Office of the President,

, 1295 (D.C. Cir. 1993)). Those

calendars simply are “not ‘agency records’ as FOIA defines the term.” Id.

10 The records sought from the Secret Service, the circuit noted, were essentially

“reconstruct[ed]” from those calendars. Id. The circuit then explained that there was “good

reason to doubt that Congress intended to require the effective disclosure of the President’s

calendars” in such a “roundabout way.” Id. This was particularly true given that “special

considerations control when the Executive Branch’s interests in maintaining the autonomy of its

office and safeguarding the confidentiality of its communications are implicated.” Id. at 226

(emphasis omitted) (quoting Cheney v. U.S. Dist. Court.,

(2004)). In light of

those “separation-of-powers concerns,” the circuit concluded that “[c]onstruing the term ‘agency

records’ to extend to White House visitor logs—regardless of whether they [were] in possession

of the White House or the Secret Service—could substantially affect the President’s ability to

meet confidentially with foreign leaders, agency officials, or members of the public” and “could

render FOIA a potentially serious congressional intrusion into the conduct of the President’s

daily operations.”

The circuit accordingly employed the canon of constitutional avoidance to

rule that the Secret Service-held logs did not “fall within the scope of FOIA.” Id. at 229.

Similar reasoning applies in this case. Again, without question, Plaintiffs could not

obtain NSC meeting calendars from the NSC itself because those calendars are not “agency

records” for purposes of FOIA. See Armstrong,

; see also Judicial Watch v. Secret

Service,

. Yet Plaintiffs essentially want to indirectly “reconstruct” those

calendars through requests to an entity, OMB, whose records are subject to the Act. From a

practical standpoint, such a regime makes little sense. And like in Judicial Watch v. Secret

Service, it would raise separation-of-powers concerns because it would threaten the ability of the

President and his closest advisers to hold meetings and seek advice in confidence. See

. Of course, that need for confidentiality is why the presidential communications privilege

exists in the first place. See Sealed Case,

.

This all leads to the fourth and final reason for granting OMB’s motion, which is that

application of the presidential communications privilege to these specific records is consistent

with the privilege’s underlying purpose. Each calendar entry at issue may contain a minimal

amount of information, but the nature of the information has the potential to be quite revelatory.

At a minimum, the entries are likely to provide the dates of the meetings, as well as lists of

attendees. In the context of NSC meetings, certain attendees are unlikely to be surprising or

illuminating, but others could be. After all, “[i]nvitations to participate in specific Council

meetings [are] extended to those heads of executive departments and agencies, and other senior

officials, who are needed to address the issue or issues under consideration.” NPRM-4, 82 Fed.

Reg. at 16882. With the benefit of hindsight, observers could potentially use the timing and

attendees of a given meeting to infer the specific issues that were discussed and possibly even the

general substance of the conversations. See Sealed Case, 121 F.3d at 750–51 (“Knowledge of

factual information gathered by presidential advisers can quickly reveal the nature and substance

of the issues before the President, since ‘[i]f you know what information people seek, you can

usually determine why they seek it.’” (alteration in original) (quoting Ass’n of Am. Physicians &

Surgeons, 997 F.2d at 910)).

As the Court just said, this is exactly what the privilege is meant to prevent. The

privilege is rooted in the need “for confidentiality to ensure that presidential decisionmaking is of

the highest caliber, informed by honest advice and full knowledge.” Id. at 750. And that

confidentiality must be extended to the President’s immediate advisers (like the National

Security Advisor and Homeland Security Advisor) because “potential exposure of the

12 information in the possession of an adviser can be as inhibiting as exposure of the actual advice

she” ultimately gives to the President. Id. Indeed, “[w]ithout protection for her sources of

information, an adviser may be tempted to forego obtaining comprehensive briefings or initiating

deep and intense probing for fear of losing deniability.” Id. Extension of the privilege to those

immediate advisers thus “ensures the expression of ‘candid, objective, and even blunt or harsh

opinions’ and the comprehensive exploration of all policy alternatives before a presidential

course of action is selected.” Id. (quoting United States v. Nixon,

(1974)).

Plaintiffs do not dispute the legitimacy of these principles. Instead, their final objection

is that OMB has not provided sufficient detail to show that these eight NSC meetings in

particular were “intimately connected to . . . presidential decisionmaking.”

. It is true

that OMB’s submissions do not explain the role each meeting played in contributing to a specific

presidential action. The agency’s Vaughn index only states that each meeting was “with the

National Security Council” and provides a short subject-matter description—“foreign relations

policy,” “transportation policy,” or “infrastructure policy.” See 3d Decl. of Heather V. Walsh,

Ex. 1, ECF No. 25-2. But recall that, absent “contrary evidence in the record” or “evidence of

agency bad faith,” OMB merely must show that the meetings “logically fall[]” within the scope

of the privilege. See Larson,

(quoting Miller,

). And, as the

Court has already explained, the advisory nature of these NSC meetings is self-evident, and they

occurred at close “operational proximity” to the President, Ass’n of Am. Physicians & Surgeons,

997 F.2d at 910. OMB therefore “need not make a particularized showing about the role” of

each communication in a specific presidential decision. See Protect Democracy Project,

.

13 Rather, for purposes of OMB’s burden, it is significant that foreign policy, transportation,

and infrastructure are all subjects that fall plausibly within the NSC’s mandate to “advise the

President with respect to the integration of domestic, foreign, and military policies relating to the

national security.” 82 Fed. Reg. at 16881. Plus, in addition to the Vaughn index, OMB has

submitted a declaration from the Director’s Chief of Staff, Emma Doyle, who “manage[s] the

Director’s calendar and often . . . accompan[ies] him to meetings, including with the President,

Vice President, Cabinet Secretaries, senior White House advisors, and Members of Congress.”

Decl. of Emma K. Doyle ¶ 2, ECF No. 25-3. As a result, Doyle is “able to accurately

characterize the nature of all of the meetings as to which OMB is applying the presidential

communications privilege based upon either (1) [her] personal attendance at those meetings, or

(2) for meetings that [she] did not attend, [her] review of pertinent contemporaneous records

with either the Director, the Deputy Director, or other OMB staff.” Id. ¶ 3. Doyle, in other

words, has personal knowledge of the meetings at issue, and, with that knowledge, she has

confirmed that each of the meetings was held for the “purpose of formulating advice to the

President with respect to presidential decisions.” Id. ¶ 11; see also id. ¶ 3 (“[E]ach . . . meeting

was in furtherance of presidential decisionmaking.”). Absent any evidence to the contrary, the

Court sees no reason to question this sworn statement, which is entirely plausible given that the

President has not delegated any substantive, independent authority to the NSC.

Indeed, because the NSC is a purely advisory entity with no meaningful role apart from

the White House, see Armstrong,

, Doyle’s declaration and the Vaughn index are

enough to demonstrate that the eight meetings were communications solicited and received by

immediate White House advisers “in the course of preparing advice to the President,” Sealed

Case,

. OMB has accordingly met its burden of showing that the calendar entries

14 corresponding to the meetings fall within the scope of the presidential communications privilege.

The entries are thus exempt from disclosure under FOIA Exemption 5.

IV. CONCLUSION

For the foregoing reasons, OMB’s motion for summary judgment is GRANTED and

Plaintiffs’ cross-motion is DENIED. An order consistent with this Memorandum Opinion is

separately and contemporaneously issued.

Dated: August 19, 2019 RUDOLPH CONTRERAS United States District Judge

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