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March 28, 2003


The opinion of the court was delivered by: Gladys Kessler, United States District Judge


Judicial Watch, Inc., a non-profit public interest organization, filed this case against the United States Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., seeking documents concerning pardon applications considered or granted by former President William Jefferson Clinton. DOJ withheld disclosure of some FOIA-responsive documents under specific statutory exemptions, many pursuant to the presidential communications privilege of Exemption 5, 5 U.S.C. § 552(b)(5). This matter is now before the Court on Defendant's Motion for Summary Judgment.

FOIA provides a framework for liberal disclosure of government documents. See Dep't of Air Force v. Rose, 425 U.S. 352, 360-361 (1973) (FOIA reflects "a general philosophy of full agency disclosure"); United States Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (FOIA facilitates "public access to Government documents") (internal citation omitted). Thus, FOIA "provides that all documents are available to the public unless specifically exempted by the Act itself," and those exemptions "must be construed narrowly, in such a way as to provide the maximum access consonant with the overall purpose of the Act." Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).

In this case, the Court is well aware that the subject matter of Plaintiff's FOIA request — pardon applications considered or granted by former President Clinton — is of great public interest. See, e.g., Peter Slevin and George Lardner Jr., Key to Presidential Pardon Is Access, Washington Post, Jan. 22, 2001, at A1; Pardons on the Sly, N.Y. Times, Jan. 25, 2001, at A22. However, as strong a supporter as the Court is of FOIA's liberal disclosure of government documents and as great as the public interest in disclosure of the documents requested by Plaintiff may be, the case law concerning the ability of the government to withhold certain documents under the presidential communications privilege is clear, as will be detailed below.

As a threshold matter, it is necessary to understand that we cannot view the presidential communications privilege only in the context of its use by an individual President to shield information concerning his controversial decisions from the public. Rather, the privilege must be viewed in its broader, historical context, allowing presidential advisors to provide the President with the fullest and most candid information and advice regarding decisions to be made in many sensitive areas, including the granting or denial of pardon requests. Thus, the presidential communications privilege serves as a vitally important protection for the Presidency as an institution.

Accordingly, upon consideration of the Motion, Opposition, Reply, and the entire record herein, Defendant's Motion for Summary Judgment is granted.


On February 22, 2001, Plaintiff made a FOIA request to DOJ seeking all documents from the Office of the Deputy Attorney General that "refer or relate . . . in any way" to pardon applications considered or granted by former President Clinton on January 21, 2001.*fn2 On March 6, 2001, DOJ acknowledged receipt of Plaintiff's FOIA request and initiated a search for documents responsive to that request. However, DOJ also informed Plaintiff that it would be unable to complete its processing of Plaintiff's FOIA request within the statutory time frame and asked that the Plaintiff either narrow the scope of its request or agree to an alternative time frame for processing its request. On March 23, 2001, Plaintiff filed the instant action.

On June 11, 2001, DOJ informed Plaintiff that it had completed its search, having located 17 boxes of potentially responsive documents. By August 9, 2001, DOJ had identified 5,258 pages of documents responsive to Plaintiff's FOIA request. It released 597 pages to Plaintiff in full, some after advance payment of applicable processing fees, and identified an additional 433 pages that could be released to Plaintiff upon payment of applicable fees. However, DOJ withheld 4,825 pages of responsive documents in full and 40 pages in part, citing specific FOIA exemptions. Defendant withheld 4,341 pages under FOIA Exemption 5 as subject to the presidential communications privilege and 524 pages under FOIA Exemption 6, 5 U.S.C. § 552(b)(6), as constituting a clearly unwarranted invasion of privacy.*fn3


FOIA "requires agencies to comply with requests to make their records available to the public, unless the requested records fall within one or more of nine categories of exempt material." Oglesby v. United States Dep't of Defense, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (citing 5 U.S.C. § 552(a), (b)). In this Circuit, the burden of justifying nondisclosure under these exemptions is on the government, Petroleum Information Corp. v. United State Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)), and the agency must submit an index of all withheld material, Vaughn, 484 F.2d at 826.

In determining whether the government has properly withheld requested documents under any of FOIA's exemptions, the district court conducts a de novo review of the government's decision. 5 U.S.C. § 552(a)(4)(B). In doing so, courts "must accord substantial weight to the Agency's determinations." Gardels v. C.I.A., 689 F.2d 1100, 1104 (D.C. Cir. 1982). The Court may award summary judgment in a FOIA case solely on the basis of information provided in affidavits or declarations when they describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Goland v. C.I.A., 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980); Hayden v. N.S.A., 608 F.2d 1381, 1387 (D.C. Cir. 1979), cert. denied, 446 U.S. 937 (1980).


Defendant claims that it properly withheld 4,341 pages of responsive documents pursuant to the presidential communications privilege of FOIA Exemption 5, 5 U.S.C. ยง 552(b)(5), because they relate to "the exercise by then-President Clinton of his expressly delegated constitutional authority to grant reprieves and pardons." Def.'s Memo. at 1. In addition, Defendant argues that it properly withheld 524 pages as a clearly unwarranted invasion of privacy under Exemption 6 because "the identities and personal histories of ...

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