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Protect Democracy Project, Inc. v. U.S. Department of Defense

United States District Court, District of Columbia

August 21, 2018

U.S. DEPARTMENT OF DEFENSE, et al., Defendants.



         On April 6, 2017, President Trump ordered a cruise missile strike on the Shayrat military airfield in western Syria. Administration officials explained that the strike was a response to the chemical attack that had killed dozens of Syrian civilians three days earlier-one that, according to U.S. intelligence, had been directed by Syrian president Bashar Al-Assad.

         The day after the U.S. missile strike, a nonprofit called The Protect Democracy Project, Inc. submitted several requests under the Freedom of Information Act (“FOIA”) seeking documents related to the President's legal authority to launch the strike. It filed these requests with the Department of State, the Department of Defense, and three components of the Department of Justice, including the Office of Legal Counsel. The agencies released some responsive documents but withheld fifteen documents in full. The withheld documents fall into three categories. The first includes three iterations of a legal memorandum produced by an interagency group of lawyers for the President's national security staff on the day the strike was ordered. The second is an outline drafted by attorneys in the Department of Justice's Office of Legal Counsel to help the Office advise the Attorney General on the legal basis for the strike the day after it was launched. And the third includes several sets of talking points prepared to assist Executive Branch officials in answering questions from the press and from Congress. To justify withholding these documents, the agencies invoked several FOIA exemptions. Chief among them was Exemption 5, which shields from disclosure documents that would typically be privileged in civil discovery. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).

         Protect Democracy and the government now ask the Court to decide whether the documents were properly withheld under FOIA. For the most part, the Court finds the agencies' withholdings justified. The Court does, however, find that a small amount of information in several of the talking-point documents has already been officially acknowledged, and thus that the agencies may not withhold that information. It will therefore grant in part and deny in part each party's motion for summary judgment.

         I. Background

         On April 7, 2017, the day after the Shayrat airfield strike, Protect Democracy sent identical FOIA requests to the Department of State (“State”), the Department of Defense (“DOD”), and three components of the Department of Justice (“DOJ”)-collectively, “the agencies.” The requests sought:

Any and all records [from April 4, 2017 through the present], including but not limited to emails and memoranda, reflecting, discussing, or otherwise relating to the April 6, 2017 military strike on Syria and/or the President's legal authority to launch such a strike. This request includes, but is not limited to, internal [agency] communications, communications between [agency] employees and the Executive Office of the President, and communications between [agency] employees and other agencies.

Compl. Exs. A, C, E, G, I.

         Having received no responses to these requests a month after their submission, Protect Democracy brought this lawsuit alleging violations of FOIA. It also moved for a preliminary injunction that would compel the agencies to review its requests on an expedited basis. Mot.

         Prelim. Inj. at 2. In July 2017, this Court granted that request. See Order, ECF No. 15 (July 17, 2017). The parties worked to narrow the scope of Protect Democracy's requests and the agencies provided a final response in September 2017. Joint Status Report, ECF No. 20, ¶¶ 2-3 (Sept. 15, 2017). The agencies released some documents in full, released redacted versions of others, and withheld fifteen outright. In redacting and withholding certain documents, the agencies invoked several of FOIA's exemptions-specifically, Exemptions 1, 5, 6, and 7. The parties then filed cross-motions for summary judgment on the question of whether the agencies properly withheld the fifteen documents. At this point, the crux of their dispute is whether the documents are protected under Exemption 5, which shields materials “normally privileged in the civil discovery context.” Sears, 421 U.S. at 149.

         After an initial review of the parties' filings, the Court concluded that it needed to see the talking points-documents 5 through 15 in the government's Vaughn index[1]-before it could resolve an important aspect of the dispute. See 5 U.S.C. § 552(a)(4)(B) (authorizing the Court to “examine the contents of [withheld] agency records in camera to determine whether such records or any part thereof shall be withheld” under a FOIA exemption). Specifically, Protect Democracy contends that the government has waived any privileges applicable to the withheld documents by publicly acknowledging information contained in them. See Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990) (“[W]hen information has been ‘officially acknowledged,' its disclosure may be compelled even over an agency's otherwise valid exemption claim.”). With respect to documents 5 through 15, the Court found that Protect Democracy had cited public statements by Trump Administration officials sufficient to meet its “initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.” Order, ECF. No. 33, at 3 (Apr. 25, 2018) (quoting Afshar v. Dep't of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)). Yet the government's descriptions of the documents were not detailed enough for the Court “to decide whether their information sufficiently overlaps with the public statements so as to satisfy the D.C. Circuit's exacting test for public acknowledgment.” Id. The Court has now reviewed documents 5 through 15 in camera.

         The Court also directed supplemental briefing on another issue related to public acknowledgement. On May 31, 2018, the Office of Legal Counsel (“OLC”) publicly released a 22-page memorandum justifying the legality of a second set of missile strikes that President Trump directed against Syria on April 13, 2018. See Steven A. Engel, Ass't Att'y Gen., OLC, April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities (May 31, 2018), Noting that little of the 2018 memorandum's analysis was “particularized to the recent strike” and that some of its reasoning “closely align[ed] with the publicly stated rationale for the 2017 strike, ” the Court found it “at least plausible that ‘specific information in the public domain' (i.e., the 2018 memorandum) duplicated ‘that being withheld' (i.e., the 2017 memorandum).” Order, ECF No. 36, at 3-4 (June 5, 2018) (quoting Afshar, 702 F.2d at 1130). The Court therefore ordered the parties to file supplemental briefs, with affidavits as necessary, addressing whether OLC's release of the 2018 memorandum constituted a waiver of any applicable privileges for purposes of Exemption 5. The parties submitted those briefs in late June. The government's included a sworn declaration from Paul Colborn, a senior OLC official responsible for overseeing the Office's FOIA requests.

         II. Legal Standards

         FOIA requires federal executive agencies to produce their records upon request unless one of the Act's nine exemptions applies. See 5 U.S.C. § 552(b). The exemptions aim “to balance the public's interest in governmental transparency against ‘legitimate governmental and private interests [that] could be harmed by release of certain types of information.'” United Techs. Corp. v. DOD, 601 F.3d 557, 559 (D.C. Cir. 2010) (alteration in original) (quoting Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc)). “But these limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976). Thus, where a plaintiff challenges an agency's withholding of records, the agency bears the burden of showing that one of FOIA's exemptions applies. ACLU v. DOD, 628 F.3d 612, 619 (D.C. Cir. 2011).

         FOIA disputes are generally resolved on cross-motions for summary judgment. In evaluating each motion, the Court must view the record in the light most favorable to the non-movant. The agency may satisfy its burden of showing that a FOIA exemption applies through an affidavit that “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.” ACLU v. DOD, 628 F.3d at 619.

         III. Analysis

         The agencies withheld fifteen documents that they deemed responsive to Protect Democracy's requests. The Court will evaluate the agencies' claims of privilege over each category of documents in ...

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