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American Center for Law and Justice v. United States Department of State

United States District Court, District of Columbia

September 10, 2018

AMERICAN CENTER FOR LAW AND JUSTICE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE, Defendant.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE

         This 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.

         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.

         I. 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. 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.

         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. Id. ¶¶ 22-25.

         On June 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.

         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. Id.

         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 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. 2011).

         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, 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).

         “The 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)).

         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.” 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 1123.

         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.” 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.

         A. 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, 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).

         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.[1] 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).

         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, 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, ...


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