Am. Ctr. for Law & Justice v. U.S. Dep't of State
Am. Ctr. for Law & Justice v. U.S. Dep't of State
Opinion of the Court
This action, filed pursuant to the Freedom of Information Act ("FOIA"),
Plaintiff American Center for Law and Justice ("ACLJ") submitted a FOIA request to the State Department for records relating to the portion of the video that was allegedly deleted or otherwise manipulated. On June 28, 2016, ACLJ filed the instant action to compel State to produce the relevant records. The parties cross-moved for summary judgment, with their dispute focused on (1) whether State's redactions pursuant to the attorney-client, deliberative process, and presidential communications privileges under FOIA's Exemption 5 were proper, and (2) whether State withheld factual information in those documents that was reasonably segregable. For the reasons explained below, the Court will grant in part and deny in part State's motion and deny ACLJ's cross-motion. The Court will grant summary judgment for State, and deny summary judgment for ACLJ, with respect to two documents redacted for the attorney-client privilege and 14 documents redacted for the deliberative process privilege. The Court will otherwise deny both the motions without prejudice and will give State the opportunity to provide further justification for redacting the remaining three documents at issue.
*299I. Factual and Procedural Background
According to the complaint, during the State Department's daily press briefing on December 2, 2013, Psaki discussed with Rosen whether the Obama Administration had held secret direct bilateral talks with Iran in 2011, and whether Psaki's predecessor had lied to Rosen about those talks. ECF No. 1 ("Compl.") ¶¶ 7-10; ECF No. 2 ("Ans.") ¶¶ 7-10. At one point, Rosen asked, "Is it the policy of the State Department, where the preservation or the secrecy of secret negotiations is concerned, to lie in order to achieve that goal?" Compl. ¶ 9; Ans. ¶ 9. Psaki replied, "I think there are times where diplomacy needs privacy in order to progress. This is a good example of that." Compl. ¶ 9; Ans. ¶ 9. The State Department uploaded a video of the briefing to its website and YouTube channel the day it occurred. Ans. ¶ 7.
Nearly three years later, in May 2016, Rhodes reportedly admitted that secret talks with Iran had in fact occurred in 2011. Compl. ¶ 8. Within days, Rosen reported that approximately eight minutes of the video of the briefing-including Psaki's responses to his questions-had been omitted from the online video without explanation.
On May 12, 2016, ACLJ submitted a FOIA request seeking records from the State Department relating to the portion of the video of the briefing that was "deleted, edited, altered or otherwise manipulated." Compl. ¶ 14. On May 18, 2016, State sent a letter to ACLJ indicating that it would begin processing the FOIA request.
On June 28, 2016, ACLJ filed the instant action to compel the State Department to produce the records.
That same day, the State Department moved for summary judgment on the ground that its redactions were proper under Exemption 5 because the withheld material was covered by the attorney-client, deliberative process, or presidential communications privileges. ECF No. 26 at 1-20 ("Def.'s Mot."). On June 23, 2017, ACLJ cross-moved for summary judgment, challenging State's assertion of the latter two privileges as applied to 17 responsive documents, and claiming that State withheld factual information in those documents that was reasonably segregable. ECF No. 27 ("Pl.'s Cross-Mot."). ACLJ has not disputed the adequacy of State's search for responsive documents, nor has it challenged State's other withholdings.
II. Legal Standard
Under Federal Rule of Civil Procedure 56, a court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and *300the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Summary judgment is appropriately granted when, viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor." Lopez v. Council on Am.-Islamic Relations Action Network, Inc. ,
Congress enacted FOIA in 1966 to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Morley v. CIA ,
"The agency bears the burden to establish the applicability of a claimed exemption to any records or portions of records it seeks to withhold."
FOIA also requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt."
III. Analysis
The State Department has withheld material pursuant to FOIA's Exemption 5 in a total of 19 documents. That exemption protects "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."
*301A. Attorney-Client Privilege
The attorney-client privilege applies to communications between a lawyer and a client, in which the attorney was "acting as a lawyer and the communication was made 'for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding,' " In re Lindsey ,
State redacted material in two documents that it asserts reflects "communications from Department officials to Department attorneys for the purpose of obtaining legal advice." ECF No. 32-3 ("Am. Vaughn Index"), Entry 5.
B. Deliberative Process Privilege
"The deliberative process privilege protects 'documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.' " Loving ,
To assess whether the deliberative process privilege applies, two conditions must be met. The withheld material must be "both 'predecisional' and 'deliberative.' " 100Reporters LLC v. DOJ ,
*302Petrol. Info. Corp. v. U.S. Dep't of Interior ,
While the D.C. Circuit does not appear to have addressed the application of the deliberative process privilege to the formulation of an agency's public statements, judges in this District have frequently held that it does apply in this context. The privilege has been found to cover, for example, agency discussion regarding the appropriate response to media inquiries on a particular issue. See, e.g., Comm. on Oversight & Gov't Reform, U.S. House of Rep. v. Lynch ,
The State Department redacted 16 documents pursuant to the deliberative process privilege. In support of these redactions, State has submitted an amended Vaughn index, and two supporting affidavits from the State official charged with responding to FOIA requests. See Am. Vaughn Index, Entries 1, 3-4, 6-10; ECF No. 26-2 ("Stein Decl.") ¶ 16; ECF No. 32-1 ("2d Stein Decl.") ¶¶ 5-9. In addition, the parties have provided the Court with redacted versions of 14 of the 16 documents. See ECF No. 27-3; ECF No. 32-4.
1. December 3, 2013 Emails Preparing for State's Daily Press Briefing
State redacted a December 3, 2013 email thread containing a discussion of press strategy on Iran-related topics in preparation for its press briefing held later that day. See Am. Vaughn Index, Entry 6 (citing *303C06197841). Psaki, who ran the briefing, was copied on the thread. See C06197841. Psaki's office, the Bureau of Public Affairs ("PA"), was ultimately "responsible for communicating timely and accurate information" to the media. Stein Decl. ¶ 16. According to State, the withheld material contains "deliberations about press strategy and points to be made on topics related to Iran" involving both State's Deputy Spokesperson Marie Harf and Rhodes. 2d Stein Decl. ¶ 8. This material is predecisional, in that the recommendations were sent prior to the press briefing. It is also deliberative because it contains recommendations that appear, in context, to be part of the "give-and-take of the consultative process" leading up to a press briefing. Coastal States ,
2. May 9, 2016 Emails Discussing State's Response to Rosen's Inquiry
Before publishing his story on the edits to the video, Rosen reached out to State for comment. See C06206248 at 8. State redacted seven email threads containing discussions about how to respond to Rosen's inquiry. 2d Stein Decl. ¶ 6; see also Am. Vaughn Index, Entries 3, 4, 7. Rosen sent his inquiry at 5:10 p.m. on May 9, 2016 to Office of Press Relations Director Elizabeth Trudeau and others, stating that he expected a reply within the next 30 minutes. See C06201418. What ensued, State asserts, were "time-sensitive, back-and-forth discussions about how to respond" to Rosen. 2d Stein Decl. ¶ 6. At 6:01 p.m. that same day, Trudeau confirmed that she had spoken to Rosen. See C06206248 at 2.
With respect to six of these seven email threads, State has shown that the withheld material is both predecisional and deliberative. See C06224640; C06201418; C06197855; C06219552; C06193231; C06197857. First, the emails sent in these six threads were all sent prior to Trudeau's confirmation that she had spoken to Rosen, and thus were predecisional. Second, State asserts that the withheld material consists of "proposals, recommendations, opinions, and questions" to assist Trudeau, who was "ultimately responsible" for responding to Rosen. 2d Stein Decl. ¶ 6. This assertion is corroborated by the Vaughn index and the unredacted content of the documents themselves. In the first email thread, two State officials discussed the appropriate response to Rosen's inquiry. See Am. Vaughn Index, Entry 7; C06224640. In the second and third email threads, State officials asked each other for insight into this issue. See C06201418; C06197855. In the fourth email thread, a State official asked a National Security Council ("NSC') official for background information. See Am. Vaughn Index, Entry 4; C06219552. In the fifth and sixth email threads, a group of State officials discussed, and suggested revisions to, talking points on how to respond to Rosen's inquiry. See Am. Vaughn Index, Entry 3; C06193231; C06197857. Therefore, the Court finds that State has adequately established that the withheld material is deliberative, as it shows the "give-and-take of the consultative process" in crafting the appropriate response to Rosen's inquiry. Coastal States ,
The seventh email thread, document C06206248, contains a redacted email in which Trudeau confirmed to her colleagues that she had spoken to Rosen. Emails both prior to and after this confirmation email are redacted. See C06206248. The Court cannot tell whether the privilege applies to the confirmation email, and the emails sent afterwards; obviously, these documents are not predecisional with respect to State's response to Rosen's inquiry. It is possible that the privilege does apply here- if, for example, the emails contain discussions about a follow-up response to Rosen, or about how to handle press inquiries on this topic in general. But State has not made this clear in its filings. Thus, before making its privilege determination, the Court will allow State to provide further context on document C06206248, as described below.
3. May 10, 2016 Emails Discussing Draft Talking Points Authored by State's Bureau of Iranian Affairs
State redacted three May 10, 2016 email threads containing a discussion of draft talking points for use in addressing news stories about the video. See Am. Vaughn Index, Entry 10 (citing C06219467; C06219548; C06219550). According to State, these talking points contain "anticipated questions and draft answers" originally authored by State's Office of Iranian Affairs ("OIA") for use by State's PA.
The Court finds that the redacted discussion in these three email threads is predecisional and deliberative. The "decision" in this instance is not a press briefing, or how to respond to a particular press inquiry, but rather the development of a set of talking points to address future press inquiries. This activity is protected by the deliberative process privilege. See Citizens for Responsibility & Ethics in Wash. ("CREW") v. DOL ,
4. Draft Talking Points for State's Briefings on May 10 and May 11, 2016 Authored by State's Bureau of Near Eastern Affairs
State redacted two sets of draft talking points, each containing "anticipated questions on a variety of topics and proposed responses," prepared by the Bureau of Near Eastern Affairs ("NEA") for the PA to use in press briefings on May 10 and May 11, 2016. Am. Vaughn Index, *305Entry 8 (citing C06219271; C06219312). The specific topics for the briefing, as shown in the unredacted portion of the talking points, included: "Fox JCPOA Glitch Video," "Hekmati lawsuit against Iran," and "Secretary Travel to Europe Bank Meeting." See C06219271; C06219312. Again, as State asserts, the PA was "responsible for communicating timely and accurate information" to the media. Stein Decl. ¶ 16. The redacted talking points here are predecisional, in that they were prepared "in advance of" the press briefings. Am. Vaughn Index, Entry 8. They are also deliberative because they represent NEA's press-related recommendations to the PA, which makes the "final decision on [these] communications to the press."
5. Draft List of Issues and Emails Preparing for State's May 11, 2016 Briefing
State redacted a draft list of issues for which Trudeau sought advice in preparation for a May 11, 2016 daily press briefing, as well as a subsequent email thread discussing draft talking points for the briefing. See Am. Vaughn Index, Entry 9 (citing C06219322; C06219456). The thread begins with an unredacted email from a State official, sent at 7:02 a.m. on May 11, 2016, which stated that Trudeau would handle the briefing at 2:00 p.m. See C06219322. The email requested press guidance from various State components, and attached a "DRAFT Tasking List."
Although the parties did not provide a copy of the redacted draft list of issues to the Court, State asserts that this list contains "topics on which PA was seeking talking points" for the May 11, 2016 briefing. Am. Vaughn Index, Entry 9. Such a document is clearly deliberative and predecisional. With respect to the email thread, State asserts, it does not contain "directives flowing from a superior to a subordinate." 2d Stein Decl. ¶ 7. Indeed, the email is sent to Trudeau, who is responsible for giving the May 11, 2016 briefing, from an employee of another State component. See C06219322. The email was also sent more than an hour before the actual briefing and, according to State, was redacted for "information about obtaining clearance on the draft talking points." Am. Vaughn Index, Entry 9. This is enough context for the Court to conclude that redacted material in the thread is both predecisional and deliberative. Thus, the Court concludes that this material is covered by the deliberative process privilege.
6. May 10, 2016 Email Discussing Press Accounts of the Edited Video
State redacted a May 10, 2016 email thread in which PA officials discuss a news report about the edited video. See Am. Vaughn Index, Entry 1 (citing C06189797). State asserts that the withheld material is "pre-decisional and deliberative with respect to the Department's determination of what happened to the daily press briefing video on December 2, 2013."
C. Segregability
ACLJ has raised the issue of segregability with respect to many of these documents. Pl.'s Cross-Mot. at 12, 14-15; ECF No. 33 ("Pl.'s Reply") at 5-7. The Court concludes that, with respect to material in the 14 documents it determined are covered by the deliberative process privilege, FOIA's segregability requirement has been satisfied.
Segregability is analyzed using a burden-shifting framework. "In order to demonstrate that all reasonably segregable material has been released, the agency must provide a 'detailed justification' for its non-segregability." Johnson v. Exec. Office for U.S. Att'ys ,
The Court concludes that State is entitled to the presumption that it has provided all reasonably segregable material. It has provided a Vaughn index stating that it "determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released." Am. Vaughn Index. State has also provided a declaration stating that it conducted a "careful, line-by-line review of each document" and released all segregable information. Stein Decl. ¶ 19.
ACLJ asserts a segregability challenge to all the material withheld under the deliberative process privilege: it argues that "the mere fact that these documents involve discussions about how to respond to media inquiries and/or include talking points memos provides little support for withholding segregable factual information." Pl.'s Reply at 6. The Court disagrees. Communications with the media on behalf of government agencies often require a prudent selection and presentation of factual information. Disclosing the "factual" material from the kinds of email discussions and talking points at issue here would in all likelihood reveal the agency's deliberations about how to present those facts. Cf. Elec. Frontier Found. ("EFF") v. DOJ ,
*307Aside from its generalized segregability challenge (which the Court rejects), ACLJ's only specific argument is that the unredacted portions of certain documents suggest that State failed to reasonably segregate the meaningful, non-exempt information from the redacted portions of those documents. Pl.'s Cross-Mot. at 12-14 (discussion of Vaughn Entries 3 and 6). For its part, State has stated that the "factual material in these documents" is "embedded in the opinions and recommendations on how State should respond to ongoing inquiries," and that "its disclosure would reveal State's internal deliberations." ECF No. 31 ("Def.'s Reply") at 17. Indeed, the D.C. Circuit has held that, "[i]n some circumstances, even material that could be characterized as 'factual' would so expose the deliberative process that it must be covered by the privilege." Wolfe v. Dep't of Health & Human Servs. ,
In short, ACLJ has not rebutted the presumption in favor of State on the issue of segregability. Therefore, the Court concludes that the segregability requirement is satisfied with respect to the 14 documents covered by the deliberative process privilege.
D. Presidential Communications Privilege
"While the deliberative process privilege applies to executive officials generally, the presidential communications privilege applies to the President." CREW v. DHS ,
The privilege is premised on "the need for confidentiality to ensure that presidential decisionmaking is of the highest caliber, informed by honest advice and full knowledge." In re Sealed Case ,
"[W]hen a court decides whether the privilege extends to a document or class of documents, it must ask whether application of the privilege is necessary to protect the confidentiality of communications as between the President and his advisers." Ctr. for Effective Gov't v. Dep't of State ,
The State Department has asserted this privilege with respect to a single document, C06190112, that reflects communications involving NSC official Bernadette Meehan, Rhodes, Psaki, and Harf about press guidance and strategy related to Iran. See Am. Vaughn Index, Entry 2; 2d. Stein Decl. ¶ 4.
1. Invocation of the Privilege
As a threshold matter, ACLJ argues that State could not have properly withheld material under Exemption 5's presidential communications privilege because only the President may invoke the privilege. Pl.'s Cross-Mot. at 17. The President has not invoked the privilege here. Instead, the Director of State's Office of Information Programs and Services submitted two declarations explaining that the document falls within the scope of the privilege. Stein 2d Decl. ¶¶ 10-11; Stein Decl. ¶¶ 1, 18. However, "[e]ven assuming that the President must personally invoke the presidential communications privilege in civil discovery," the Court concludes that this requirement is not "imported into the far different context of FOIA." Lardner v. DOJ , No. 03-cv-0180,
Moreover, ACLJ's argument is "at odds with the established principle that Exemption 5 protects from disclosure documents that 'fall within the ambit of a privilege' such that they would not be 'routinely or normally' disclosed in civil discovery upon a showing of relevance," Berman v. CIA ,
For the reasons stated above, the "presidential communications privilege does not need to be asserted by the President himself" in this case. EPIC ,
In the alternative, ACLJ argues that State has not properly invoked Exemption 5's presidential communications privilege because it "has been upheld only where a high ranking official and/or a party to [the relevant] communications invokes the privilege." Pl.'s Reply at 7 (citing Lardner ,
2. Application of the Privilege to the December 2013 Email Thread Involving Meehan, Rhodes, Psaki, and Harf
ACLJ also argues that, regardless of whether the presidential communications privilege is properly invoked, the withheld material in document C06190112 does not fall within the scope of the privilege. Pl.'s Cross-Mot. at 20-22. Upon review of a redacted copy of the document, as well as the State Department's Vaughn index and affidavits, the Court finds that it is unable to determine whether the withheld material is covered by the presidential communications privilege.
Document C06190112 is a December 2013 email thread that begins with an exchange between a reporter and Meehan. The reporter asked about an alleged "face-to-face meeting with Iranian officials in Oman in July 2012." C06190112. Meehan "decline[d] to discuss/confirm anything further related to that channel."
The State Department explains that "[t]he presidential advisors who were involved in these communications advised the President on, among other things, how to present and explain Iran-related policy to the public." Stein 2d Decl. ¶ 11. State further explains that, "[i]n the course of developing advice for the President on matters that concern national security and topical issues related to foreign policy, NSC and White House officials regularly consult subject matter experts in the Department."
Here, the redacted communication was authored by Meehan, an NSC official who appears to qualify as an immediate White House adviser. However, State's bare-bones *310description of the contents of the withheld material-that it relates to the timing and subject of a "meeting,"
IV. Revised Vaughn Index and Additional Declarations
For the reasons already stated, with respect to documents C06206248, C06189797, and C06190112, the Court concludes that the State Department's Vaughn index and two affidavits "fail[ ] to provide a sufficiently detailed explanation to enable the [Court] to make a de novo determination of the agency's claims of exemption." Spirko v. U.S. Postal Serv. ,
At this juncture, the Court will direct State to submit a revised Vaughn index and, if necessary or helpful, additional declarations that address the deficiencies identified in this opinion with respect to documents C06206248, C06189797, and C06190112. See EFF v. DOJ ,
V. Conclusion and Order
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART State's motion for summary judgment, ECF No. 26, and DENIES ACLJ's cross-motion for summary judgment, ECF No. 27. The Court grants summary judgment for State, and denies summary judgment for ACLJ, with respect to the two documents redacted for the attorney-client privilege and 14 documents redacted for the deliberative process privilege, all identified above. The motions are otherwise DENIED without prejudice. The State Department *311shall submit a revised Vaughn submission and/or additional affidavits supporting its redactions to documents C06206248, C06189797, and C06190112, and a renewed motion for summary judgment, by October 22, 2018 . ACLJ shall file its opposition to State's renewed motion and its renewed cross-motion for summary judgment by November 19, 2018 . State shall file its opposition to ACLJ's renewed cross-motion and reply in support of its renewed motion by December 17, 2018. ACLJ shall file its reply in support of its renewed cross-motion by December 31, 2018.
SO ORDERED.
This document is the latest iteration of the State Department's Vaughn index, provided to the Court in conjunction with State's reply in support of its motion for summary judgment. An earlier version of the index, ECF No. 26-3, was attached to the motion itself.
The 14 documents are located within these two exhibits. The State Department has stamped each document with a "document identifier" beginning with "C." Def.'s Mot. at 4 n.4. When referencing or citing to a particular document, the Court will use its document identifier.
Reference
- Full Case Name
- AMERICAN CENTER FOR LAW AND JUSTICE v. UNITED STATES DEPARTMENT OF STATE
- Cited By
- 19 cases
- Status
- Published