UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JASON LEOPOLD, et al.,

Plaintiffs,

v. Case No. 18-CV-1550 (CRC)

DEPARTMENT OF STATE,

Defendant.

MEMORANDUM OPINION AND ORDER

Reporter Jason Leopold and Buzzfeed News submitted a Freedom of Information Act

(“FOIA”) request to the Department of State seeking records from two senior Department

officials. The State Department withheld portions of the records as privileged under FOIA

Exemption 5. Leopold challenged those withholdings, and both sides have moved for summary

judgment. Finding neither side the clear winner, the Court will grant both parties’ motions in

part, deny them in part, and order the State Department to produce certain records and further

explain some of its withholdings.

I. Background

In 2018, Leopold and Buzzfeed filed a FOIA request with the State Department seeking:

(1) All emails sent or received by Brian Hook, senior policy advisor to [the] Secretary of State, and Margaret Peterlin, chief of staff to [the] Secretary of State;

(2) All notes prepared by or for former [sic] Brian Hook and Margaret Peterlin in preparation for any meeting they attended;

(3) All meeting minutes and other meeting summaries for meetings attended by Brian Hook and Margaret Peterlin;

(4) Brian Hook and Margaret Peterlin’s calendar and appointment book; and

(5) Brian Hook and Margaret Peterlin’s phone call log. 1st Kootz Decl. ¶ 6. Many of the requested records relate to President Trump’s decision to

withdraw the United States from the Iran nuclear deal, though they also touch on far-ranging

topics such as the assassination of a senior Iranian official and former President Biden’s son

Hunter. See Leopold MSJ at 1.

The agency then searched for and produced responsive documents. It withheld portions

of those documents under FOIA Exemption 5, claiming that they are shielded by the deliberative

process privilege or the attorney-client privilege. See

(b)(5). Leopold does not

dispute the adequacy of the agency’s search. He challenges only its withholdings.

II. Legal Standard

Summary judgment may be granted when the moving party establishes that there is no

genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(a). Summary judgment is the typical mechanism to determine whether an agency has met

its FOIA obligations. See, e.g., Jud. Watch, Inc. v. CFPB,

(D.D.C. 2014).

To obtain summary judgment on its invocation of a FOIA exemption, the agency must

first show that the material falls under an enumerated exemption. Larson v. Dep’t of State,

(D.C. Cir. 2009). Agencies can do so by providing sufficiently detailed

declarations.

“Ultimately, an agency’s justification for invoking a FOIA exemption is

sufficient if it appears logical or plausible.” Jud. Watch, Inc. v. DOJ,

(D.C.

Cir. 2013) (quotation marks omitted). Because the primary purpose of FOIA is disclosure,

exemptions are construed narrowly. DiBacco v. U.S. Army,

(D.C. Cir. 2015).

Next, the agency must make a “focused and concrete” showing that disclosing the

withheld records would cause foreseeable harm. Reps. Comm. for Freedom of the Press v. FBI,

(D.C. Cir. 2021);

(a)(8)(A)(i)(I).

2 Finally, the agency must also demonstrate that it has produced “[a]ny reasonably

segregable portion of a record . . . after deletion of the portions which are exempt[.]”

(b). Agencies must explain why non-exempt material is not reasonably segregable, and

“are entitled to a presumption that they complied with the obligation to disclose reasonably

segregable material.” Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007).

III. Analysis

The Court will begin with whether the State Department has proven that the withheld

material falls under Exemption 5 before turning to whether it has demonstrated that disclosure

would foreseeably cause harm and that it complied with its duty to disclose segregable materials.

A. Applicability of Exemption 5

The State Department identifies four categories of information it withheld under

Exemption 5. First, it withheld draft materials, including draft speeches, editorials, reports, and

other documents. 2d Kootz Decl. ¶ 5. Second, it redacted both draft and final talking points. Id.

¶ 9. Third, it protected other documents that reflect internal deliberations regarding various

foreign policy decisions, including emails and other communications. Id. ¶ 13. And fourth, it

claimed that certain emails, in addition to being protected by the deliberative-process privilege,

are also shielded by the attorney-client privilege. 1st Kootz Decl. ¶ 20. The Court will analyze

the three categories of withholdings under the deliberative-process privilege before turning to the

attorney-client privilege.

1. Draft Materials

The first category of materials that the agency withheld under the deliberative-process

privilege includes “drafts of speeches, opinion-editorial articles for publication (‘op-eds’),

3 correspondence, reports, and other material[.]” 2d Kootz Decl. ¶ 5; see Vaughn Index Nos. 2–7,

9–13, 15, 17, 18, 21, 25, 27, 28, 47.

The deliberative-process privilege has three requirements. First, documents must be

predecisional, meaning that they were “generated before the agency’s final decision on the

matter.” Reps. Comm.,

. Second, documents must be deliberative, in that they

were “prepared to help the agency formulate its position[.]”

The agency must identify the

relevant decision or decision-making process to which the withheld records contributed. See

Access Reps. v. DOJ,

(D.C. Cir. 1991); Senate of the Com. of Puerto Rico

v. DOJ,

(D.C. Cir. 1987). Third, communications withheld under the

privilege must be intra- or inter-agency, meaning that they usually must be between government

employees. See Am. Oversight v. Dep’t of Health & Hum. Servs.,

(D.C. Cir.

2024). This third requirement has an important exception known as the “consultant corollary,”

under which communications with outsiders may nonetheless be shielded if the outsiders “are

similarly situated to agency employees in that they have no independent stake in the matter under

discussion.”

.

The first two criteria are met here. The withheld records are predecisional, the

Department tells us, because they do “not include the final version that was ultimately released to

the public (if a final version was actually released),” and “do not reflect the ultimate policy

determination by the Department.” 2d Kootz Decl. ¶ 5. They are deliberative because they were

prepared to assist the Department in developing positions and strategies on a range of foreign

policy matters, including “relations with Iran, Saudi Arabia, and Ukraine, as well as the

Administration’s broader foreign policy.” Id. ¶ 7. These explanations provide a sufficient

4 logical and plausible link between the withheld draft materials and the Department’s

predecisional deliberative process.

Leopold raises two objections to these withholdings. His first is unpersuasive. He argues

that the agency failed to adequately identify a final decision to which Vaughn Index No. 47

relates. See Leopold MSJ at 15; Leopold Reply at 7. According to the agency, that document is

a “draft discussion paper regarding the Deferred Action for Childhood Arrivals (‘DACA’)

program” and relates to “a final decision regarding the DACA program[.]” Vaughn Index No.

47. Leopold relies on Senate of the Commonwealth of Puerto Rico v. DOJ,

(D.C.

Cir. 1987), where the D.C. Circuit held that an agency’s cursory explanation that a withheld

document was a “Report on status of Cerro Maravilla case” was insufficient on its own to invoke

the deliberative-process privilege.

at 584–85. The Circuit explained that this “briefest of

references to [a record’s] subject matter . . . will not do.”

. Here, however, the agency

provided more than just a terse summary of the record’s contents. It also explained that the

record related to an agency decision on the DACA program. To be sure, it did not identify a

specific decision, but the D.C. Circuit has made clear that the deliberative-process privilege

“does not turn on the ability of an agency to identify a specific decision in connection with which

a memorandum is prepared.” Access Reps.,

(cleaned up, emphasis in original).

The Department’s explanation as to Vaughn Index No. 47 is therefore adequate.

Leopold’s second objection presents a more difficult question: Whether communications

between an agency and a then-unconfirmed nominee to a high-level position within the agency

can be shielded under the deliberative-process privilege. As Leopold points out, several

withheld records include emails and other documents exchanged with members of teams tasked

with helping former Secretary of State Mike Pompeo and former Deputy Secretary of State John

5 Sullivan through their respective confirmation processes. See Leopold MSJ at 8–10; see also

Vaughn Index Nos. 10, 26. The Department confirmed that those records were sent to

individuals outside the executive branch. See Gov’t Reply at 3. The Court will grant summary

judgment to Leopold as to these withholdings.

In American Oversight v. Department of Health and Human Services,

(D.C. Cir. 2024), the plaintiff sought records of exchanges between executive branch agencies

and members of Congress.

. The district court held that those records were shielded

under the deliberative-process privilege and the consultant corollary.

. The D.C.

Circuit reversed and sharply limited the consultant corollary in light of the Supreme Court’s

decision in Department of Interior v. Klamath Water Users Protective Association,

(2001). As the Circuit explained, Klamath emphasized that the requirement a record be intra- or

inter-agency “must be given ‘independent vitality,’ not treated as ‘a purely conclusory term, just

a label to be placed on any document the Government would find it valuable to keep

confidential.’”

at 915 (quoting Klamath,

). To give that directive effect and

square it with existing circuit precedent, the D.C. Circuit held that the consultant corollary

applies only where the outsider does “not have a stake in the outcome of the agency’s process

that would render its advice on the subject anything other than disinterested. The inquiry is

whether, like an agency employee, the consultant’s only ‘obligations are to truth and its sense of

what good judgment calls for.’”

at 916–17 (quoting Klamath,

). The Circuit

also rejected the government’s proposed test, that the corollary apply only where the outsider is

adverse to the interests of others before the agency. Id. at 918. It held instead that such adversity

is merely sufficient—not necessary—to take documents outside of the corollary. Id.

6 The State Department fails entirely to engage with American Oversight’s test for

applying the consultant corollary. It instead relies exclusively on a district court ruling in

Judicial Watch, Inc. v. Department of State,

(D.D.C. 2018), to support its

withholding. The agency’s reliance on that case is misplaced because the court there applied the

governing test prior to the D.C. Circuit’s clarifying ruling in American Oversight.

In Judicial Watch, the plaintiff sought copies of records exchanged between the State

Department and former Secretary of State Hillary Clinton while her nomination was still pending

before the Senate.

. The court held that the records were shielded under

the consultant corollary.

. It explained that, under then-governing D.C. Circuit

precedent, the corollary covered the Department’s communications with a not-yet-confirmed

nominee because the nominee and the agency needed to “align their messages, discuss logistics,

and prepare the agency for new leadership.”

The court also reasoned that applying the

corollary to agency-nominee communications was consistent with Klamath because “[a]

nominee for a high-level agency position is not an interested party seeking a government benefit

at the expense of others, but rather the president’s selection for a position who will become an

agency decisionmaker so long as she is confirmed by the Senate.” Jud. Watch, 306 F. Supp. 3d

113–14 (citing Klamath,

n.4). In other words, Judicial Watch held that a nominee

is a “consultant” for purposes of Exemption 5 for two reasons: (1) nominees and agencies share

interests in aligning messaging strategy and preparing for the nominee’s future leadership; and

(2) nominees are not seeking a benefit at the expense of others before the agency.

Neither of Judicial Watch’s reasons for applying the consultant corollary to records

exchanged with then-nominee Clinton is sufficient to invoke the corollary following American

Oversight. The first fails because the question is no longer whether the outsider and the agency

7 share interests, but whether the outsider has interests of his own that would render his opinions

“anything other than disinterested.” Am. Oversight, 101 F.4th at 916–17. And the second point

is irrelevant because the Circuit rejected the adversity test. See id. at 918.

The Department cannot plead ignorance of American Oversight’s prevailing standard.

Leopold raised American Oversight in his cross-motion for summary judgment, arguing that it

requires the agency to disclose the communications with nominees because a nominee has a self-

interested, independent stake in the confirmation process (namely, getting confirmed). Leopold

MSJ at 9–10. The Department even cited American Oversight in its reply for the proposition

that that D.C. Circuit case law recognizes the consultant corollary but failed to engage with it

further. Gov’t Reply at 3.

Because Leopold raised this argument in his motion and the agency squandered its

opportunity to respond in its reply brief, the Court will treat it as conceded. See Kone v. Dist. of

Colum.,

(D.D.C. 2011) (treating arguments for dismissal as conceded

after plaintiff failed to respond to them); Wilkins v. Jackson,

(D.D.C.

2010) (“It is well established that if a [party] fails to respond to an argument raised in a motion

for summary judgment, it is proper to treat that argument as conceded.”) (collecting authorities);

see also United States v. Sineneng-Smith,

, 375–76 (2020) (“[O]ur system is

designed around the premise that parties represented by competent counsel know what is best for

them, and are responsible for advancing the facts and argument entitling them to relief.” (cleaned

up)).

Given the Department’s concession, the Court will grant summary judgment to Leopold

as to these communications with nominees. And because the Department asserts no other

exemptions as to these records, the Court will order the agency to produce them. See Maydak v.

8 DOJ,

(D.C. Cir. 2000) (ordering production after the government

abandoned its assertion of its lone FOIA exemption and did not identify “extraordinary

circumstances” or “a substantial change in the factual context” justifying its failure to invoke

another exemption).1

2. Talking Points

The second category of materials that the agency withheld under the deliberative-process

privilege includes “talking points, recommendations, and suggested answers to potential

questions—both in draft and ‘final’ form[.]” 2d Kootz Decl. ¶ 9; see Vaughn Index Nos. 1–3, 7,

13, 20, 22, 24–27.

The Department properly withheld these materials. They are predecisional because they

predate agency officials’ final decisions of how to articulate the Department’s positions. As the

agency explains, these talking points, even in “final” form, “do not themselves constitute the

Department’s position[.]” 2d Kootz Decl. ¶ 9. They are also deliberative because they were

“prepared to assist the authors’ supervisors and high-ranking officials of the Department in

articulating the Department’s official policy[.]”

And they are intra- or inter-agency because

they were not released outside the government.

1 Because the Department has conceded the issue, the Court expresses no definitive view as to whether American Oversight actually requires disclosure of the withheld communications. The Court observes, however, that withholding communications with nominees may still be permissible even after American Oversight. First, this case is factually very different from American Oversight. That case involved communications with Congress, an independent branch of government. This one involves communications with would-be agency employees who were subsequently confirmed to positions within the agency. Second, the records here could potentially satisfy American Oversight’s reformulated test because a nominee seeking confirmation is arguably similarly situated to an employee seeking a promotion within the agency. Third, a nominee who is subsequently confirmed could be considered a de facto employee for purposes of Exemption 5 while his nomination is pending. But again, the Department did not raise any of these arguments here. So the Court will leave them for another day.

9 Leopold raises two quibbles. First, he points out that the Department failed to spell out

the relationship between each record’s author and its recipients. See Leopold Reply at 5. Maybe

so. But the agency made the important part clear: The recipients of these talking points were

free to deviate from them and make decisions about how to articulate Department policy. See 2d

Kootz Decl. ¶ 9. Leopold claims that Coastal States Gas Corp. v. Department of Energy,

(D.C. Cir. 1980), “requires [an agency] to identify the purported deliberators’ relative

seniority.” Leopold Reply at 5. Not so. All that case requires is that the agency explain “the

role played by the documents in issue in the course of [the agency’s deliberative] process.”

Coastal States,

. Spelling out relative seniority between author and recipient

might help the agency meet its burden because “a document from a subordinate to a superior

official is more likely to be predecisional.”

But the agency is not required to do so.

Leopold’s second beef also misses the mark. He argues that the Department may have

shared talking points outside the executive branch by sending them to “surrogates.” See Leopold

MSJ at 14. But the Department stated in its declaration that it did not share the talking points

outside the executive branch. 2d Kootz Decl. ¶ 9. That declaration is “accorded a presumption

of good faith, which cannot be rebutted by purely speculative claims[.]” SafeCard Servs. v.

SEC,

(D.C. Cir. 1991) (cleaned up).

Leopold has not rebutted that presumption. He points to three records that he claims

show that the Department sent talking points to surrogates. See Leopold MSJ at 14 (citing

Leopold MSJ Exs. 7, 9, 10). But all three appear to be copies of an email chain in which the

only mention of surrogates is when a government official says: “Let’s not send [the talking

points] to surrogates tonight though.” Leopold MSJ Ex. 7 at 1 (emphasis added); Leopold MSJ

Ex. 9 at 2 (emphasis added); Leopold MSJ Ex. 10 at 1 (emphasis added). At most, that sentence

10 could perhaps be stretched to imply that the talking points were sent to surrogates at a later date.

But even assuming that such an inference is reasonable, it would require another logical leap to

conclude that “surrogates” refers to individuals outside the executive branch entirely, rather than,

say, employees in a different agency. Drawing both inferences is speculation that cannot be used

to rebut the presumption in the agency’s favor.

3. Other Deliberative Materials

The final category of materials withheld by the agency under the deliberative-process

privilege is a catch-all category consisting of email exchanges between employees, employees’

calendar entries and invitations, and internal memoranda that reflect “internal deliberations

between and among Department officials and other executive branch members regarding foreign

policy decisions.” 2d Kootz Decl. ¶ 13; see Vaughn Index Nos. 3–6, 9–12, 14–16, 18, 19, 23,

29–46.

Most of these withholdings are adequately explained. The agency explains that these

internal communications and other documents were exchanged as part of the agency’s process

for arriving at various decisions, such as policy decisions on Iranian and North Korean sanctions,

Vaughn Index No. 14, a possible response to a Wall Street Journal article, Vaughn Index No. 23,

and the agency’s position on the International Commission Against Impunity in Guatemala,

Vaughn Index No. 40. These documents are therefore predecisional and deliberative. Leopold

repeats that the agency failed to adequately identify the relevant decision that these records

informed, but the Court disagrees. For the reasons discussed above, the agency’s specification

that these documents assisted the agency’s decision-making with regard to specific subject

matters is sufficient for purposes of Exemption 5. Finally, because these records were

exchanged between executive-branch employees, they are either intra- or inter-agency.

11 The Court, however, does agree with Leopold that the agency failed to adequately

identify the relevant decision for two records: Vaughn Index No. 43, a calendar invitation for a

scheduled call, and Vaughn Index No. 45, a set of handwritten notes. Both Vaughn Index entries

describe the documents as “deliberative with respect to a final decision regarding the

Administration’s foreign policy.” Vaughn Index Nos. 43, 45. But given that the State

Department’s raison d’être is developing the Administration’s foreign policy, that description

amounts to no explanation at all. If such cursory invocations were enough to satisfy FOIA, then

virtually any document from the State Department could be withheld on the grounds that it

informed some unspecified decision on American foreign policy. Accordingly, the Court needs

more from the agency to sustain these withholdings.

The Court also agrees with Leopold that the agency may have improperly withheld

factual information. The Department withheld material from the “background” sections of two

documents described as “information memorand[a.]” Leopold MSJ at 14–15; see Vaughn Index

Nos. 16, 35. Leopold argues that these withholdings include purely factual summaries of

background information, which some courts have held cannot be shielded under the deliberative-

process privilege. See, e.g., Heartwood, Inc. v. U.S. Forest Serv.,

(D.D.C. 2006). This argument seems plausible to the Court. For example, one memorandum’s

background section says: “During the first 100 days of the Trump Administration, the United

States has:”, followed by a redacted bullet point list. Leopold MSJ Ex. 14 at 2. Given the text

introducing it, the bullet point list presumably contains descriptions of actions taken by the

Trump Administration. Such a list could contain purely factual information subject to

disclosure.

12 The agency’s explanation of these withholdings comes up short. It claims that it has

justified these withholdings by explaining that the documents informed certain decisions. See

Gov’t Reply at 6–7. But its supplemental declaration failed to respond to Leopold’s plausible

charge that the background sections in these memoranda contain factual information that the

agency could potentially disclose. The agency did not, for example, explain that the withheld

portions of the background sections reflect the authors’ opinions, let alone how they might do so.

So while the Department adequately connected the memoranda themselves to deliberative

processes, it did not adequately explain the background-section withholdings.

When courts find that an agency has failed to justify its claimed FOIA exemptions, their

typical practice is to deny both parties’ motions for summary judgment without prejudice and

instruct the agency to either produce the withheld portions or file supplemental declarations to

fill the gaps identified by the Court. Kolbusz v. FBI, No. 17-cv-319-EGS-GMH,

, at *27 (D.D.C. Feb. 17, 2021) (collecting authorities). The Court will follow that well-

trodden path here. The Department must either produce the redacted background material in

Vaughn Index Nos. 16 and 35 and full, unredacted copies of Vaughn Index Nos. 43 and 45, or

re-move for summary judgment with a more detailed explanation that (1) addresses whether the

agency withheld factual information from Vaughn Index Nos. 16 and 35 (and if so, why) and (2)

identifies more precisely the decisions or decision-making processes informed by Vaughn Index

Nos. 43 and 45.

4. Attorney-Client Privilege

Finally, the Department also withheld under the attorney-client privilege emails between

State Department employees “regarding a need to meet with the then-incoming Legal Adviser to

obtain her legal advice[.]” 1st Kootz Decl. ¶¶ 20, 22; see Vaughn Index No. 32.

13 Leopold argues that the attorney-client privilege does not apply to these emails because it

applies only to communications between an attorney and a client and does not apply to

communications solely between clients. See In re Kellogg Brown & Root, Inc.,

,

148–49 (D.C. Cir. 2015). And as Leopold points out in his cross-motion for summary judgment,

the email exchange did not include the incoming Legal Adviser. Instead, the emails appear to be

between non-attorney agency staff (i.e., clients) to plan for a future meeting after the incoming

Legal Adviser arrived. Leopold MSJ Exs. 16, 17, 18. The State Department did not respond to

this argument from Leopold in its reply brief.

Still, the Court will not order production of these emails or rule on Leopold’s objections.

The Department also invoked the deliberative-process privilege as to these emails, Vaughn Index

No. 32, and Leopold does not challenge that invocation. Leopold MSJ at 16 n.7.

B. Foreseeable Harm

Next, the Court concludes that the Department adequately explained why foreseeable

harm would result from disclosing these records. The Department can satisfy this requirement

by making “a focused and concrete demonstration of why disclosure of the particular type of

material at issue will, in the specific context of the agency action at issue, actually impede those

same agency deliberations going forward.” Reps. Comm.,

. Agency declarations

should “explain the particular sensitivity of the types of information at issue or the role that they

play in the relevant agency decisional processes (and, therefore, whether and how their release

would harm similar deliberations in the future).”

.

Here, the agency met its specific, contextual burden by first explaining in every entry in

its Vaughn Index the role that each withheld document played in the agency’s decision-making.

It then explained that disclosing these records would hamper those policymaking or strategy

14 decisions in the future because “line officers and subordinates would temper their opinions and

discussions with the knowledge that their views and characterizations would be made public.”

2d Kootz Decl. ¶¶ 6, 10, 14; see also Reps. Comm.,

(“The [deliberative-process]

privilege reflects . . . an understanding that employees would be chilled from such rigorous

deliberation if they feared it might become public.” (quotation marks omitted)). This kind of

concrete showing satisfies FOIA.

C. Segregability

Finally, the agency explained that it “conducted a line-by-line review of the documents at

issue in this case and has segregated and released all reasonably segregable, non-exempt

information.” 1st Kootz Decl. ¶ 25. Leopold does not dispute the agency’s account. The Court

therefore finds that the agency produced all reasonably segregable materials.

IV. Conclusion

For these reasons, it is hereby

ORDERED that [56] Defendant’s Motion for Summary Judgment is GRANTED IN

PART and DENIED IN PART. It is further

ORDERED that [61] Plaintiff’s Cross-Motion for Summary Judgment is GRANTED IN

PART and DENIED IN PART. It is further

ORDERED that Defendant shall by April 28, 2025, produce unredacted copies of

Vaughn Index Nos. 10 and 26. It is further

ORDERED that Defendant shall by April 28, 2025, produce the background sections of

Vaughn Index Nos. 16 and 35 and unredacted copies of Vaughn Index Nos. 43 and 45.

Alternatively, Defendant shall renew its motion for summary judgment by that date. It is further

15 ORDERED that if Defendant chooses to renew its motion, it shall include a

supplemental declaration addressing the shortcomings identified by the Court in its opinion.

Plaintiff shall file a combined cross-motion for summary judgment and opposition to

Defendant’s motion by May 28, 2025. Defendant shall file a combined reply in support of its

motion and opposition to Plaintiff’s cross-motion by June 27, 2025. Plaintiff shall file a reply in

support of its cross-motion by July 11, 2025.

SO ORDERED.

CHRISTOPHER R. COOPER United States District Judge

Date: February 26, 2025

16