UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT, INC., Plaintiff, Civil Action No. 17-1000 (CKK) v. U.S. NATIONAL SECURITY AGENCY, Defendant.

MEMORANDUM OPINION (March 23, 2020)

This lawsuit arises from a Freedom of Information Act (“FOIA”) request that Plaintiff The

Protect Democracy Project, Inc. (the “Project”) made to Defendant United States National Security

Agency (“NSA”) in 2017. Pending before the Court are Defendant’s Motion for Summary

Judgment, ECF No. 34, and Plaintiff’s Cross-Motion for Summary Judgment, ECF No. 35.

NSA has withheld a responsive document referred to as the Ledgett Memorandum, which

was drafted by Rick Ledgett, the former Deputy Director of the NSA. NSA primarily argues that

the Ledgett Memorandum was appropriately withheld under FOIA Exemption 5 because it is

protected by the presidential communications privilege. It further argues that FOIA Exemptions

1, 3, and 6 also justify withholding specific portions of the Memorandum. In response, the Project

argues that the presidential communications privilege does not extend to the Ledgett Memorandum

and, moreover, that NSA has officially disclosed the information requested here. The Project also

contests NSA’s withholding of information under Exemptions 1, 3, and 6.

The Court agrees with NSA that the Ledgett Memorandum was appropriately withheld

under FOIA Exemption 5. The Court has further determined, after in camera review of the Ledgett

Memorandum, that the information officially disclosed to the public does not satisfy the strict test

1 for official acknowledgement or disclosure. Accordingly, upon consideration of the briefing, 1 the

relevant legal authorities, the withheld document, and the record as it currently stands, the Court

GRANTS NSA’s Motion for Summary Judgment and DENIES the Project’s Cross-Motion for

Summary Judgment.

I. BACKGROUND

The Project first sent a FOIA request to NSA seeking several categories of documents

relating to contacts between NSA and others relating to potential Russian involvement in the 2016

national election. Pl.’s Stmt. ¶ 50; Def.’s Stmt. ¶ 1. In particular, one category of documents

sought was:

All records, including but not limited to emails, notes, and memoranda, reflecting, discussing, or otherwise relating to communications between the National Security Agency and the Executive Office of the President regarding contacts between individuals connected with the Russian government and individuals connected with the Trump campaign or the Trump administration, and/or Russian involvement with, or attempts to influence or interfere with, the national election of November 2016.

Pl.’s Stmt. ¶¶ 50–51; Def.’s Stmt. ¶ 1.

1 The Court’s consideration has focused on the following: • Def.’s Mot. for Summ. J. and Def.’s Mem. of P. & A. in Supp. of Its Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 34; • Def.’s Stmt. of Material Facts as to Which There Is No Genuine Issue (“Def.’s Stmt.”), ECF No. 34; • Decl. of Linda M. Kiyosaki (“Kiyosaki Decl.”), ECF No. 34-1; • Pl.’s Opp’n to Def.’s Mot. for Summ. J. and Cross-Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 35; • Pl.’s Stmt. of Undisputed Material Facts in Supp. of Mot. for Summ. J. (“Pl.’s Stmt.”), ECF No. 35-1; • Def.’s Reply in Supp. of Its Mot. for Summ. J. and Opp’n to Pl.’s Cross-Mot. for Summ. J. (“Def.’s Reply”), ECF No. 37; • Decl. of Steven E. Thompson (“Thompson Decl.”), ECF No. 37-1; and • Pl.’s Reply Brief in Supp. of Cross-Mot. for Summ. J. (“Pl.’s Reply”), ECF No. 39. In an exercise of its discretion, the Court finds that holding oral argument would not be of assistance in rendering a decision. See LCvR 7(f). 2 Plaintiff filed the instant lawsuit on May 24, 2017. Pl.’s Stmt. ¶ 52 (citing Compl, ECF

No. 1); Def.’s Stmt. ¶ 4. Plaintiff amended its Complaint on August 7, 2017. Def.’s Stmt. ¶ 5;

Pl.’s Stmt. ¶ 53. Plaintiff thereafter narrowed its request in early 2018 to “memoranda,” and any

associated documents, that were “written by senior NSA officials” and “documenting a

conversation between White House personnel, including the President, and NSA senior officials,

including Adm. Rogers, in which the White House asked the NSA to publicly dispute any

suggestion of collusion between Russia and the Trump campaign.” Def.’s Stmt. ¶¶ 8–9; Pl.’s

Stmt.¶¶ 55–57. NSA provided a final response to this request on March 20, 2018, which included

a Glomar response in which the agency declined to confirm or deny the existence of responsive

records pursuant to FOIA Exemption 3. Def.’s Stmt. ¶ 9; Pl.’s Stmt. ¶¶ 57–59. The parties later

briefed cross-motions for summary judgment relating to the Glomar response. Pl.’s Stmt. ¶¶ 60–

65; Def.’s Stmt. ¶ 10; see also ECF Nos. 23–28 (original summary judgment briefing).

Before the Court could rule on those motions, however, the Department of Justice released

a partially redacted report drafted by Special Counsel Robert Mueller (the “Mueller Report”).

Def.’s Stmt. ¶¶ 11–12; Pl.’s Stmt. ¶ 66. Volume II of the Mueller Report described a document

that appeared to be responsive to the Project’s Second Amended FOIA Request. Def.’s Stmt. ¶ 13;

Pl.’s Stmt. ¶¶ 45–48. The relevant portion of the Report reads:

On March 26, 2017, the day after the President called [Director of National Intelligence Daniel] Coats, the President called NSA Director Admiral Michael Rogers. The President expressed frustration with the Russia investigation, saying that it made relations with the Russians difficult. The President told Rogers “the thing with the Russians [wa]s messing up” his ability to get things done with Russia. The President also said that the news stories linking him with Russia were not true and asked Rogers if he could do anything to refute the stories. Deputy Director of the NSA Richard Ledgett, who was present for the call, said it was the most unusual thing he had experienced in 40 years of government service. After the call concluded, Ledgett prepared a memorandum that he and Rogers both signed documenting the content of the conversation and the President’s request, and they placed the memorandum in a safe. But Rogers did not perceive the

3 President’s request to be an order, and the President did not ask Rogers to push back on the Russia investigation itself. Rogers later testified in a congressional hearing that as NSA Director he had “never been directed to do anything [he] believe[d] to be illegal, immoral, unethical or inappropriate” and did “not recall ever feeling pressured to do so.”

Report on the Investigation into Russian Interference in the 2016 Presidential Election, available

at https://www.justice.gov/storage/report.pdf, at 268–69 (emphasis added) (footnotes omitted). 2

Following the release of the Mueller Report, NSA withdrew its Glomar response. Def.’s

Stmt. ¶ 16; Pl.’s Stmt. ¶ 68; Notice of Withdrawal of Glomar Response, ECF No. 31. NSA

disclosed that it had located one responsive record that it had withheld under FOIA Exemption 5

as well as FOIA Exemptions 1, 3, and 6. Pl.’s Stmt. ¶ 69 (citing Joint Status Report, ECF No. 32);

Def.’s Stmt. ¶ 18 (citing same). The parties then submitted cross-motions for summary judgment

with respect to NSA’s withholding of the Ledgett Memorandum. Upon review of the briefing and

record, the Court previously determined in its March 6, 2020 Memorandum Opinion and

accompanying Order, which it incorporates and makes a part of its opinion here, that in camera

review was required for a responsible de novo determination on the claims of exemption. See Mar.

6, 2020 Order, ECF No. 41; Mar. 6, 2020 Mem. Op., ECF No. 42. The Court has since reviewed

the Ledgett Memorandum in camera.

II. LEGAL STANDARD

Congress passed FOIA to “‘open[] up the workings of government to public scrutiny’

through the disclosure of government records.” Stern v. Fed. Bureau of Investigation,

(D.C. Cir. 1984) (quoting McGehee v. Cent. Intelligence Agency,

(D.C.

Cir. 1983)). Congress, however, also recognized “that there are some government records for

2 The page numbers referenced here are the page numbers of the entire report, which is in Portable Document Format (“PDF”) and is not consecutively paginated. This quotation is found on pages 56–57 of Volume II. 4 which public disclosure would be so intrusive—either to private parties or to certain important

government functions—that FOIA disclosure would be inappropriate.”

To that end, FOIA

“mandates that an agency disclose records on request, unless they fall within one of nine

exemptions.” Milner v. Dep’t of Navy,

, 565 (2011). Despite these exemptions,

“disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Air Force v. Rose,

(1976). The exemptions are therefore “‘explicitly made exclusive’ and must be

‘narrowly construed.’” Milner, 562 U.S. at 565 (citations omitted) (quoting Envtl. Prot. Agency

v. Mink,

(1973); Fed. Bureau of Investigation v. Abramson,

(1982)).

When presented with a motion for summary judgment in this context, the court must

conduct a de novo review of the record.

(a)(4)(B). This requires the court to

“ascertain whether the agency has sustained its burden of demonstrating the documents requested

are . . . exempt from disclosure under the FOIA.” Multi Ag Media LLC v. Dep’t of Agric.,

(D.C. Cir. 2008) (internal quotation marks omitted). “An agency may sustain its

burden by means of affidavits, but only ‘if they contain reasonable specificity of detail rather than

merely conclusory statements, and if they are not called into question by contradictory evidence

in the record or by evidence of agency bad faith.’”

at 1227 (quoting Gallant v. Nat’l Labor

Relations Bd.,

(D.C. Cir. 1994)). “If an agency’s affidavit describes the

justifications for withholding the information with specific detail, demonstrates that the

information withheld logically falls within the claimed exemption, and is not contradicted by

contrary evidence in the record or by evidence of the agency’s bad faith, then summary judgment

is warranted on the basis of the affidavit alone.” Am. Civil Liberties Union v. U.S. Dep’t of

Defense,

(D.C. Cir. 2011). “Uncontradicted, plausible affidavits showing

5 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).

Summary judgment is proper when the pleadings, the discovery materials on file, and any

affidavits or declarations “show[] that 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).

III. DISCUSSION

NSA first argues that the Ledgett Memorandum was properly withheld under FOIA

Exemption 5, which incorporates the presidential communications privilege. In response, the

Project argues that the presidential communications privilege does not extend to the Memorandum

for three main reasons. 3 First, it argues that the Memorandum does not reflect presidential

decision-making because its purpose “was to document a conversation in which the President made

an inappropriate attempt to enlist the NSA Director to publicly undermine the FBI’s ongoing

investigation of the President’s campaign and administration.” Pl.’s Mot. at 12. Second, it argues

that disclosure is warranted due to the serious allegations of wrongdoing by the President. Lastly,

it contends that the disclosure of the information in the Ledgett Memorandum in the Mueller

Report precludes invocation of the privilege. The Court considers each of these arguments in

turn. 4

3 The Project also argued that the government failed to adequately justify its assertion of the presidential communications privilege in the affidavits it submitted. See Pl.’s Mot. at 18–20. That argument, however, focused primarily on the assertions in the declarations and suggested that the Court review the Ledgett Memorandum in camera. As the Court has done just that, and as it bases its decision not only on the briefing and submissions by the parties but also on its in camera review of the Memorandum, the Court does not dwell on this argument here. 4 Because the Court determines that the Ledgett Memorandum was properly withheld under FOIA Exemption 5, it does not reach the parties’ arguments with respect to other FOIA exemptions except to address some concerns related to the inclusion of classified information in the Memorandum. 6 A. The Presidential Communications Privilege and Presidential Decision-Making

The chief determination to be made is whether the Ledgett Memorandum qualifies for the

presidential communications privilege under FOIA Exemption 5. Exemption 5 applies to “inter-

agency or intra-agency memorandums or letters that would not be available by law to a party other

than an agency in litigation with the agency.”

(b)(5). “To qualify [for this

exemption], a document must thus satisfy two conditions: its source must be a Government agency,

and it must fall within the ambit of a privilege against discovery under judicial standards that would

govern litigation against the agency that holds it.” Dep’t of the Interior v. Klamath Water Users

Protective Ass’n,

(2001). Over the years, it has been construed as protecting “those

documents, and only those documents, normally privileged in the civil discovery context.” Nat’l

Labor Relations Bd. v. Sears, Roebuck & Co.,

(1975). Available privileges

include the presidential communications privilege. Judicial Watch, Inc. v. U.S. Dep’t of Defense

(Judicial Watch II),

(D.C. Cir. 2019).

That privilege ensures that the President can receive “frank and informed opinions from

his senior advisers” who may otherwise “‘be unwilling to express [those views] except privately.’”

at 1110 (quoting United States v. Nixon,

(1974)). The shelter of this privilege

is “properly invoked with respect to ‘documents or other materials that reflect presidential

decisionmaking and deliberations and that the President believes should remain confidential.’”

at 1111 (quoting In re Sealed Case,

(D.C. Cir. 1997)). And it can be invoked

by not only the President, but also his advisors, to insulate their communications “‘in the course

of preparing advice for the President . . . even when these communications are not made directly

to the President.’”

(alteration in original) (quoting In re Sealed Case, 121 F.3d at 751–52).

The standard is whether the documents were “‘solicited and received’ by the President or his

7 immediate White House advisers who have ‘broad and significant responsibility for investigating

and formulating the advice to be given the President.’” Judicial Watch, Inc. v. Dep’t of Justice

(Judicial Watch I),

(D.C. Cir. 2004) (quoting In re Sealed Case,

). This privilege “‘should be construed as narrowly as is consistent with ensuring that the

confidentiality of the President’s decision-making process is adequately protected.’”

at 1116

(quoting In re Sealed Case,

).

“Unlike the deliberative process privilege . . . the presidential communications

privilege . . . ‘applies to documents in their entirety, and covers final and post-decisional materials

as well as pre-deliberative ones.’”

at 1113–14 (quoting In re Sealed Case,

).

Moreover, “[a]lthough the presidential communications privilege is a qualified privilege, subject

to an adequate showing of need, FOIA requests cannot overcome the privilege because ‘the

particular purpose for which a FOIA plaintiff seeks information is not relevant in determining

whether FOIA requires disclosure.’” Judicial Watch II,

(quoting Loving v. Dep’t

of Def.,

(D.C. Cir. 2008)).

The Project does not dispute that the Ledgett Memorandum memorializes a conversation

between the former NSA Director and the President. See, e.g., Pl.’s Stmt. ¶¶ 45–48 (outlining

Mueller Report’s description of relevant call and resulting memorandum). Instead, the Project

asserts that the privilege “only applies to communications intended to advise the President on some

aspect of his decision-making,” and not when “the government is attempting to hide evidence of

wrongdoing by a President that was so substantial the Special Counsel highlighted it as an example

of potential obstruction of justice.” Pl.’s Mot. at 13. In short, it contends that there is no connection

between the Ledgett Memorandum and direct decision-making by the President. See, e.g., id. at

15.

8 In support of its withholding, NSA advances that the subject of the telephone call was “a

conversation regarding foreign affairs and national security, implicating potential Presidential

decision-making.” Kiyosaki Decl. ¶ 27; see Def.’s Mot. at 10–11. The second declaration

submitted by the agency explains that “Admiral Rogers provided the President with information

and analysis based on specific NSA intelligence—and on his expertise as the director of an

intelligence agency and as a senior military officer—in the context of a conversation related to

national security and foreign affairs.” Thompson Decl. ¶ 13. Accordingly, NSA argues, the

memoranda memorializes a conversation that was “generated in the course of advising the

President in the exercise of” his powers relating to foreign relations and intelligence-gathering

activities. Def.’s Mot. at 12 (internal quotation marks omitted).

The Project’s argument that “[t]here is no plausible nexus between the Ledgett

Memorandum” and direct presidential decision-making, Pl.’s Mot. at 15, is unsupported by the

Court’s in camera review of the document.

However, the Court notes a seeming discrepancy between the declarations submitted by

the Government and the Ledgett Memorandum itself. The declarations submitted by the

Government suggest that the Memorandum concerns multiple distinct topics related to foreign

relations and national security. See, e.g., Kiyosaki Decl. ¶ 27; Thompson Decl. ¶ 12. That is not

the case. While the Memorandum concerns several topics, all are directly related to a central set

of interrelated issues. Without in camera review of the Memorandum, the Court would have held

a distinctly different impression of what the Memorandum contained. This discrepancy is

concerning, especially as courts routinely rely upon declarations in the FOIA context to determine

whether documents were properly withheld.

9 Regardless, the Court’s in camera review of the Ledgett Memorandum demonstrates that

the conversation memorialized in the Memorandum involved advice solicited by, and provided to,

the President that directly related to presidential decision-making with respect to foreign relations

and intelligence-gathering activities. Such decisions are important presidential functions, and

deliberations about these decisions and activities are among those principally protected by the

presidential communications privilege. See, e.g., Nixon v. Adm’r of Gen. Servs.,

(1977) (describing President’s “more particularized and less qualified privilege relating to the

need to protect military, diplomatic, or sensitive national security secrets” (internal quotation

marks omitted)). At bottom, the Ledgett Memorandum is a document “that reflect[s]

presidential . . . deliberations and that the President believes should remain confidential.” Judicial

Watch II,

(internal quotation marks omitted). “Disclosure of the [Ledgett

Memorandum] would reveal the President’s deliberations.”

Indeed, the U.S. Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”)

has previously found that similar notes and memoranda memorializing meetings and telephone

calls with a nexus to presidential decision-making are protected from disclosure by the presidential

communications privilege. In In re Sealed Case,

(D.C. Cir. 1997), for example, the

D.C. Circuit found that documents “authored by the White House Counsel, Deputy White House

Counsel, Chief of Staff and Press Secretary” that “were communications connected to an official

matter on which they were directly advising the President” were protected by the privilege.

. Also protected were notes taken at meetings attended by the advisers and connected to

presidential decision-making, as the “notes reflect[ed] these advisers’ communications.”

The D.C. Circuit also considered a similar document in its recent opinion in Judicial Watch

II. There, the D.C. Circuit considered, among other things, the withholding of “information related

10 to memoranda regarding the capture or killing of Osama bin Laden in 2011,” including five

memoranda authored by various presidential advisers. Judicial Watch II,

. The

Court found that these documents were protected from disclosure, as the decision at issue required

the President to exercise his informed judgment as Commander in Chief “on a highly sensitive

subject with serious direct and collateral consequences for foreign relations that required a high

degree of protection for ‘the President’s confidentiality and the candor of his immediate White

House advisors.’”

at 1111 (quoting Judicial Watch I,

). The court further

rejected the argument that because the documents were memoranda memorializing analysis and

advice provided to the President, and were therefore likely “prepared after the briefing,” they were

not protected. See

at 1112–13. The memoranda at issue here, drafted by the former Deputy

Director of the NSA and memorializing a conversation between the then-Director of the NSA and

the President involving advice and deliberations regarding national security and intelligence-

gathering decisions, is similarly protected by the privilege.

At various points in its briefing, the Project suggests that the Court should consider whether

portions of the Ledgett Memorandum that were possibly unrelated to presidential decision-making

can be withheld under FOIA Exemption 5. In general, the presidential communications privilege

extends to documents in their entirety. See Judicial Watch I, 365 F.3d at 1113–14. The Project

first suggested in its cross-motion that the Court may perform a segregability analysis under In re

Sealed Case,

(D.C. Cir. 1997). Pl.’s Mot. at 16. Moreover, in its Reply, the Project

also suggested that the general principle of non-segregability in this context should not hold true

when some of the contents of a withheld document have been officially acknowledged or

disclosed. See, e.g., Pl.’s Reply at 5 n.2 (arguing that construing presidential communications

privilege narrowly when part of document has been acknowledged means that privilege cannot

11 extend to entire document). The Court considers this argument both in the context of the privilege

more generally and, below, in the context of the disclosure doctrine.

To begin with, In re Sealed Case does not support that a segregability analysis is

appropriate for documents otherwise protected by the presidential communications privilege in the

FOIA context. In that case, which involved efforts to compel performance of a subpoena duces

tecum, the D.C. Circuit explained that the presidential communications privilege “is qualified, not

absolute, and can be overcome by an adequate showing of need.”

. It further stated

that “[i]f a court believes that an adequate showing of need has been demonstrated, it should then

proceed to review the documents in camera to excise non-relevant material. The remaining

relevant material should be released.”

The Project, in its cross-motion, suggests that the need

is great here. See Pl.’s Mot. at 16–17. This argument overlooks, however, that the D.C. Circuit

has specifically explained that the need can never be great enough in FOIA cases:

Although the presidential communications privilege is a qualified privilege, subject to an adequate showing of need, FOIA requests cannot overcome the privilege because “the particular purpose for which a FOIA plaintiff seeks information is not relevant in determining whether FOIA requires disclosure,” Loving,

(quoting In re Sealed Case,

n.5).

Judicial Watch II,

(emphasis added). The analysis in In re Sealed Case is

therefore unhelpful for the Project here.

Moreover, the D.C. Circuit has consistently explained that “[o]nce the privilege applies,

the entirety of the document is protected.”

; see also, e.g., Loving, 550 F.3d at 37–38

(“The privilege covers documents reflecting presidential decisionmaking and deliberations,

regardless of whether the documents are predecisional or not, and it covers the documents in their

entirety.” (internal quotation marks omitted)); In re Sealed Case,

(“In addition,

unlike the deliberative process privilege, the presidential communications privilege applies to

12 documents in their entirety, and covers final and post-decisional materials as well as pre-

deliberative ones.”). As the Court found above, the Ledgett Memorandum contains information

protected by the presidential communications privilege. The Court understands—and shares—the

Project’s concern that otherwise responsive and unprotected materials may be incorporated into a

document with materials protected by the presidential communications privilege, thus rendering

the entire document protected from disclosure. 5 But, as the doctrine currently stands, the entire

Memorandum here is protected from disclosure under the presidential communications privilege.

B. Government Misconduct

The Project also appears to argue, in a short portion of its brief, that the Ledgett

Memorandum cannot be withheld because it qualifies for a government wrongdoing or misconduct

exception. See Pl.’s Mot. at 17–18; see also, e.g., Pl.’s Reply at 2 (“Simply put, this is a case about

an extreme assertion of executive privilege intended to shield clear evidence of presidential

wrongdoing that, according to the Special Counsel, would have been considered in normal

circumstances to be evidence of possible obstruction of justice.”). Yet it is far from clear that any

such exception may be properly invoked in a FOIA Exemption 5 case involving the presidential

communications privilege.

The Project cites to National Archives and Records Administration v. Favish,

(2004), and related cases to support this argument. That case, however, involved “privacy

concerns addressed by Exemption 7(c)” of FOIA.

. The Supreme Court there found that

when a FOIA requester demonstrates a public interest that is sufficient to overcome the privacy

interest at stake in such cases, the government may be required to disclose the information. See

5 The Court ventures no opinion as to whether the portions of the Ledgett Memorandum directly referenced in the Mueller Report and primarily sought by the Project would, on their own, be protected by the presidential communications privilege if a segregability analysis were conducted. 13

In those cases, the requester must (1) “show that the public interest sought to be advanced is a

significant one, an interest more specific than having the information for its own sake,” and (2)

“must show the information is likely to advance that interest.”

The Project also cites to Roth

v. U.S. Department of Justice,

(D.C. Cir. 2011), which applies Favish in the same

FOIA Exemption 7(c) context, see

. The privacy concerns underlying Exemption 7(c)

undoubtedly differ from those underlying Exemption 5 and the presidential communications

privilege.

While the D.C. Circuit has yet to recognize such an exception in the Exemption 5 context,

other courts in this circuit have found a government misconduct exception in the context of the

deliberative process privilege. See, e.g., Reinhard v. Dep’t of Homeland Sec., No. 18-cv-1449

(JEB),

, at *11 (D.D.C. July 11, 2019) (referencing “government-misconduct

exception to the deliberative-process privilege” and explaining that “any potential impropriety”

must “rise[] to the level of ‘extreme government wrongdoing’ necessary to override this privilege”

(quoting Wisdom v. U.S. Tr. Program,

(D.D.C. 2017))); Nat’l

Whistleblower Ctr. v. Dep’t of Health & Human Servs.,

(D.D.C. 2012)

(“Consistent with these cases, the Court here finds that the government-misconduct exception may

be invoked to overcome the deliberative-process privilege in a FOIA suit.”); Judicial Watch of

Fla., Inc. v. U.S. Dep’t of Justice,

(D.D.C. 2000) (“It is true that ‘where there

is reason to believe the documents sought may shed light on government misconduct, the

[deliberative process] privilege is routinely denied, on the grounds that shielding internal

government deliberations in this context does not serve the public’s interest in honest, effective

government.’” (quoting In re Sealed Case,

)); cf. In re Sealed Case,

(explaining that deliberative process privilege is routinely denied “where there is reason to

14 believe the documents sought may shed light on government misconduct” outside of FOIA

context). But see Judicial Watch, Inc. v. U.S. Dep’t of State,

(D.D.C.

2017) (“Thus, the Court finds that the only applicable Circuit authority militates against

recognizing a government misconduct exception in a FOIA case[.]”), amended on other grounds

on reconsideration by

(D.D.C. 2017).

The Project has not cited to any of these cases, although it did cite to a Seventh Circuit case

suggesting that such an exception may exist in the context of the deliberative process privilege.

See, e.g., Enviro Tech Int’l, Inc. v. U.S. Envtl. Prot. Agency.,

(7th Cir. 2004)

(noting in dicta that “internal discussions about a course of agency action that would be nefarious,

if not illegal, likewise would not be protected by the deliberative process privilege”). Nor has the

Project cited to any case that specifically applies this exception in the context of the presidential

communications privilege—or explained why the Court should recognize such an exception here,

in a completely different context. See Pl.’s Mot. at 17–18.

In fact, D.C. Circuit precedent suggests that extension of the privilege to this context may

be inappropriate. Most notably, in In re Sealed Case, the D.C. Circuit discussed briefly the

government misconduct exception with respect to both the deliberative process privilege and the

presidential communications privilege, albeit outside of the FOIA context. See

. At one point, the D.C. Circuit stated that:

[W]hile both the deliberative process privilege and the presidential privilege are qualified privileges, the Nixon cases suggest that the presidential communications privilege is more difficult to surmount. In regard to both, courts must balance the public interests at stake in determining whether the privilege should yield in a particular case, and must specifically consider the need of the party seeking privileged evidence. But this balancing is more ad hoc in the context of the deliberative process privilege, and includes consideration of additional factors such as whether the government is a party to the litigation. Moreover, the privilege disappears altogether when there is any reason to believe government misconduct occurred.

15 On the other hand, a party seeking to overcome the presidential privilege seemingly must always provide a focused demonstration of need, even when there are allegations of misconduct by high-level officials. In holding that the Watergate Special Prosecutor had provided a sufficient showing of evidentiary need to obtain tapes of President Nixon’s conversations, the Supreme Court made no mention of the fact that the tapes were sought for use in a trial of former presidential assistants charged with engaging in a criminal conspiracy while in office. Accord Senate Committee, 498 F.2d at 731 (noting that presidential privilege is not intended to shield governmental misconduct but arguing that showing of need turns on extent to which subpoenaed evidence is necessary for government institution to fulfill its responsibilities, not on type of conduct evidence may reveal); contra 26A Wright & Graham, supra, § 5673, at 53–54 (quoting Senate Committee’s not-a-shield language and arguing that allegations of misconduct qualify the privilege, but not addressing Senate Committee’s comment that need showing turns on function for which evidence is sought and not on conduct revealed by evidence).

Id. at 746 (formatting altered, emphasis added, and footnote omitted); see also id. at 751 (“The

risk of a chill increases, however, as the possibility of disclosure rises, especially if there are

situations in which the privilege may virtually disappear, such as when government misconduct is

alleged. Nor does it suffice to respond that the public interest in honest and accountable

government is stymied if presidential advisers are allowed even a qualified privilege when

government misconduct is charged.”).

There are several takeaways from this discussion. First, the “differences between the

presidential communications privilege and the deliberative privilege demonstrate that the

presidential privilege affords greater protection against disclosure.” Id. at 746. Moreover, while

the D.C. Circuit suggested that (outside the FOIA context) the deliberative process privilege

“disappears altogether” if “there is any reason to believe government misconduct occurred,” it did

not say the same in the context of the presidential communications privilege. See id. Instead, it

focused on the requirement for showing an adequate need for the withheld documents, even when

there are allegations of misconduct. See id. This focus, and the subsequent discussion and

16 citations, appear to suggest that any government misconduct exception does not apply in the same

form—or with the same force—to the presidential communications privilege; it is instead part of

the determination of whether there is a need sufficient to overcome the privilege. However, as

noted above, the D.C. Circuit has found that no need can overcome the presidential

communications privilege in the FOIA context “because the particular purpose for which a FOIA

plaintiff seeks information is not relevant in determining whether FOIA requires disclosure.”

Judicial Watch II,

(internal quotation marks omitted). Together, these

discussions suggest that it would be inappropriate to extend the government misconduct exception

to the presidential communications privilege in a FOIA Exemption 5 context.

At bottom, in light of precedent (and the lack thereof), the Project’s brief invocations of

this exception without further explanation is insufficient to convince the Court that extending any

potential government misconduct exception to this context is appropriate. Although the Court

recognizes the Project’s concern that withholding of documents may be used to shield government

wrongdoing, the Court declines to extend the exception here. 6

C. Official Disclosure or Acknowledgement

Lastly, the Project argues that the Ledgett Memorandum cannot be withheld under

Exemption 5 because the information contained in it—or at least some of that information—has

already been officially disclosed. See Pl.’s Mot. at 20–21. In particular, the Project contends that

it “plainly the case here” that “the information sought by [the Project] matches the information

already made public and is as specific as the information that has been made public to date.”

at 20–21. The Project points to the description of the phone call between the President and the

6 The Court therefore does not address whether, if a government misconduct exception did apply in this specific context, the wrongdoing alleged here would be sufficient to overcome the presidential communications privilege. 17 Director of the NSA in the Mueller Report and argues that official disclosure precludes NSA from

withholding the Memorandum in full. See

In response, NSA argues that the Mueller Report is not specific enough to constitute

disclosure because “it does not quote from or otherwise divulge the full contents of the

communications between the President and Admiral Rogers.” Def.’s Mot. at 13. The declarations

submitted by NSA supported this assertion. See Kiyosaki Decl. ¶ 28; Thompson Decl. ¶ 12.

Because the Mueller Report “describes only vaguely and only in part the contents of the Ledgett

Memo,” NSA contends, the Memorandum was not officially disclosed in full. Def.’s Mot. at 15.

The Court agrees with NSA that the strict requirements of the official disclosure test are not

satisfied here.

“If the government has officially acknowledged information, a FOIA plaintiff may compel

disclosure of that information even over an agency’s otherwise valid exemption claim.” Am. Civil

Liberties Union v. U.S. Dep’t of Def.,

(D.C. Cir. 2011). Information must satisfy

three criteria to qualify as officially acknowledged: “(1) the information requested must be as

specific as the information previously released; (2) the information requested must match the

information previously disclosed; and (3) the information requested must already have been made

public through an official and documented disclosure.”

at 620–21. But “the fact that

information exists in some form in the public domain does not necessarily mean that official

disclosure will not cause harm cognizable under a FOIA exemption.” Wolf v. C.I.A.,

(D.C. Cir. 2007). “Prior disclosure of similar information does not suffice; instead, the

specific information sought by the plaintiff must already be in the public domain by official

disclosure.”

(emphasis in original). “The insistence on exactitude recognizes the

18 Government’s vital interest in information relating to national security and foreign affairs.”

(internal quotation marks omitted).

These requirements are not met here. As for the first and second requirements, the Project

requests the Ledgett Memorandum either in full or in part. As the Court noted above, however,

documents properly withheld under the presidential communications privilege are generally

withheld or released in full. To address this hurdle in its request for only a portion of the

Memorandum, the Project argues that the D.C. Circuit’s language indicating that this privilege

“must be construed as narrowly as is consistent with ensuring that the confidentiality of the

President’s decisionmaking process is adequately protected,” Judicial Watch II,

(internal quotation marks omitted), must be squared with the official disclosure doctrine. This is

done, the Project suggests, by allowing disclosure of a portion of the document. See Pl.’s Reply

at 5 n.2. However, as the Court discussed at length above, this ignores consistent precedent.

Accordingly, the Court rejects the Project’s argument that part of the Ledgett Memorandum can

be released via a segregability analysis.

The Court consequently considers the Project’s request for the Ledgett Memorandum in

full. As noted above, precedent on this topic indicates that there must be a close match between

the information requested and the information disclosed in recognition of “the Government’s vital

interest in information relating to national security and foreign affairs.” Wolf,

(internal quotation marks omitted). Indeed, in cases where disclosure of information is at issue,

“the inquiry turns on the match between the information requested and the content of the prior

disclosure.”

In Military Audit Project v. Casey,

(D.C. Cir. 1981), for instance,

the D.C. Circuit rejected the argument that disclosure of some information, which overlapped with

the information sought, rendered all the information sought officially disclosed or acknowledged,

19 see

at 752–53. And in Fitzgibbon v. C.I.A.,

(D.C. Cir. 1990), the D.C. Circuit

reversed the district court’s finding that information about a particular CIA station should be

disclosed as the information disclosed was about a different time period (in 1960 to 1961) than the

time period in the request (dating back to 1956), see

at 765–66.

In light of this precedent and the Court’s in camera review of the Ledgett Memorandum,

the information disclosed and released in the Mueller Report is not sufficiently specific. In other

words, the information requested by the Project—the Ledgett Memorandum—is not as specific as

the information previously disclosed and released in the Report. The Mueller Report’s description

of the phone call and resulting Memorandum is not as comprehensive as the Ledgett Memorandum

itself; the Memorandum contains a significant amount of information that was not included in the

Mueller Report. Even with respect to the information included in the Mueller Report, the Ledgett

Memorandum contains more details. 7 The first and second requirements are therefore not met

here. The Court thus rejects the Project’s argument that the Ledgett Memorandum cannot be

withheld on this basis.

IV. CONCLUSION

The Court finds that the Ledgett Memorandum was properly withheld under the

presidential communications privilege pursuant to FOIA Exemption 5. Accordingly, the Court

GRANTS NSA’s Motion for Summary Judgment, ECF No. 34, and DENIES the Project’s Cross-

Motion for Summary Judgment, ECF No. 35. An appropriate Order accompanies this

7 While the Court does not address the parties’ arguments with respect to classified information in depth, based on the Court’s in camera review, release of the Ledgett Memorandum in full would also present concerns with respect to classified information. See also Kiyosaki Decl. ¶¶ 16–20; Thompson Decl. ¶¶ 9–10. 20 Memorandum Opinion. There are no claims remaining and therefore this case shall be

DISMISSED.

Date: March 23, 2020 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

21