United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE
action, filed pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, concerns records
relating to a portion of a video of a press briefing held by
the Department of State (“State Department” or
“State”) that was edited to conceal it from the
public. During the briefing, held in December 2013, Fox News
correspondent James Rosen asked State Spokesperson Jennifer
Psaki whether the Obama Administration had held secret direct
bilateral talks with Iran in 2011, and whether Psaki's
predecessor had lied to him by denying that such talks had
occurred. During the exchange, Psaki implied that her
predecessor had lied to Rosen. That same day, the State
Department uploaded a video of the briefing to its website.
Nearly three years later, in May 2016, Deputy National
Security Advisor Ben Rhodes reportedly admitted that secret
talks with Iran had in fact occurred in 2011. And
within days, Rosen reported that State had omitted
approximately eight minutes of the December 2013 briefing-
including Psaki's responses to his questions about the
Administration's secret talks with Iran- from the online
version of the video, without explanation.
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.
Factual and Procedural Background
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.
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.
Id. ¶ 7. On May 10, 2016, a State official
addressed the omission during a press briefing, telling
reporters that “we think it was a glitch.”
Id. ¶ 14. A few weeks later, though, State did
an about-face. In a press briefing held on June 1, 2016, a
State official admitted that the omission was not a
“glitch, ” but rather the result of a
“deliberate step to excise the video.”
Id. ¶ 13; Ans. ¶ 13.
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. Id. ¶¶
28, 2016, ACLJ filed the instant action to compel the State
Department to produce the records. Id. From November
8, 2016, through February 1, 2017, State produced non-exempt,
responsive records to ACLJ on a rolling basis. ECF No. 26 at
21-23 (“Def.'s SOF”) ¶ 4. In March 2017,
State explained to ACLJ that it had made certain withholdings
pursuant to Exemptions 5 and 6 of FOIA. ECF No. 27-1. In
April 2017, ACLJ informed State that it objected to the
withholdings made under Exemption 5. ECF 26-1; ECF No. 27-2.
On May 26, 2017, State completed its production of responsive
documents to ACLJ; all told, its productions totaled 34
unredacted documents and 35 documents partially redacted for
exempt material. Def.'s SOF ¶¶ 5-6.
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
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 the 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., 826 F.3d 492, 496 (D.C.
Cir. 2016). “[T]he vast majority of FOIA cases can be
resolved on summary judgment . . . .” Brayton v.
Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir.
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, 508 F.3d
1108, 1114 (D.C. Cir. 2007) (quoting Dep't of Air
Force v. Rose, 425 U.S. 352, 361 (1976)). “FOIA
‘mandates that an agency disclose records on request,
unless they fall within one of nine exemptions.'”
Elec. Privacy Info. Ctr. (“EPIC”) v.
DHS, 777 F.3d 518, 522 (D.C. Cir. 2015) (quoting
Milner v. Dep't of Navy, 562 U.S. 562, 565
(2011)). FOIA exemptions are “explicitly made exclusive
and must be narrowly construed.” Am. Immigration
Lawyers Ass'n v. Exec. Office for Immigration
Review, 830 F.3d 667, 673 (D.C. Cir. 2016) (quoting
Milner, 562 U.S. at 565).
agency bears the burden to establish the applicability of a
claimed exemption to any records or portions of records it
seeks to withhold.” Id. “Summary
judgment is warranted on the basis of agency affidavits when
the affidavits describe 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.” Larson v. Dep't of State, 565 F.3d
857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey,
730 F.2d 773, 776 (D.C. Cir. 1984)). The agency cannot rely
on “conclusory and generalized allegations of
exemptions.” Morley, 508 F.3d at 1115 (quoting
Founding Church of Scientology of Wash., D.C., Inc. v.
NSA, 610 F.2d 824, 830 (D.C. Cir. 1979)).
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.” 5 U.S.C. § 552(b). When considering an
agency's withholdings, the court has an affirmative duty
to ensure that this requirement is satisfied, even if it must
do so sua sponte. See Morley, 508 F.3d at
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.” 5 U.S.C.
§ 552(b)(5). It “‘incorporates the
traditional privileges that the Government could assert in
civil litigation against a private litigant'-including
the presidential communications privilege, the
attorney-client privilege, the work product privilege, and
the deliberative process privilege-and excludes these
privileged documents from FOIA's reach.” Loving
v. DOD, 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting
Baker & Hostetler LLP v. U.S. Dep't of
Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006)). The Court
will assess, in turn, whether State has properly asserted the
attorney-client, deliberative process, and presidential
communications privileges to justify its withholdings.
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, 158 F.3d
1263, 1268 (D.C. Cir. 1998) (internal quotation mark omitted)
(quoting In re Sealed Case, 737 F.2d 94, 98-99 (D.C.
Cir. 1984)), and extends to information provided by the
client to the attorney as well as advice given by the
attorney, see Brinton v. Dep't of State, 636
F.2d 600, 605 (D.C. Cir. 1980). “In the governmental
context, the ‘client' may be the agency and the
attorney may be an agency lawyer.” Tax Analysts v.
IRS, 117 F.3d 607, 618 (D.C. Cir. 1997).
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
ACLJ has not challenged State's assertion of this
privilege, and State appears to have adequately justified it.
Thus, the Court concludes that the privilege applies, and
that State's withholdings related to these two documents
are proper. Cf. Augustus v. McHugh, 870 F.Supp.2d
167, 172 (D.D.C. 2012).
Deliberative Process Privilege
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, 550 F.3d at 38
(quoting Dep't of Interior v. Klamath Water Users
Protective Ass'n, 532 U.S. 1, 8 (2001)). “The
purpose of the deliberative process privilege is to ensure
open communication between subordinates and superiors,
prevent premature disclosure of policies before final
adoption, and to avoid public confusion if grounds for
policies that were not part of the final adopted agency
policy happened to be exposed to the public.”
Conservation Force v. Jewell, 66 F.Supp.3d 46, 59
(D.D.C. 2014) (quoting Wilderness Soc'y v. U.S.
Dep't of Interior, 344 F.Supp.2d 1, 10 (D.D.C.
2004)), aff'd, No. 15-5131, 2015 WL 9309920
(D.C. Cir. Dec. 4, 2015). It “rests on the obvious
realization that officials will not communicate candidly
among themselves if each remark is a potential item of
discovery and front page news, ...