United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; DENYING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
to the Freedom of Information Act (“FOIA”),
Plaintiffs Ryan Noah Shapiro and Property of the People, Inc.
seek disclosure of certain portions of entries appearing on
an electronic calendar maintained by the Director of the
Office of Management and Budget (“OMB”). Both
parties have moved for summary judgment. Citing FOIA
Exemption 5's deliberative process privilege, OMB
contends that factual information featured in some calendar
entries-including, the identities of meeting participants and
the locations of meetings-is not subject to release. This is
so, OMB argues, even though Plaintiffs do not seek the
release of the specific subject matters of any purportedly
deliberative meetings. In addition, citing the presidential
communications privilege, OMB asserts that it may withhold
other entries in full. As explained below, the Court rejects
OMB's claim that, in the context of this case, the
deliberative process privilege covers factual information
featured in the calendar entries logging the OMB
Director's meetings. With respect to OMB's
withholdings under only the presidential communications
privilege and under both the presidential communications
privilege and the deliberative process privilege, the Court
denies the cross-motions for summary judgment. The
declarations submitted by OMB are insufficiently detailed and
conclusory, and thus, do not permit the Court to determine
whether the agency may properly withhold any of the disputed
calendar entries under the presidential communications
privilege. OMB may file a renewed motion for summary judgment
and must submit supplemental declarations and other materials
supporting its claimed exemption. And Plaintiffs may renew
their cross-motion in response.
2017, Plaintiffs Ryan Noah Shapiro and Property of the
People, Inc. submitted a FOIA request to OMB, seeking (1) all
official visitor logs and/or records concerning visits made
to OMB; (2) all phone call logs for Director Mick Mulvaney or
any acting or permanent OMB Director; and (3) all calendar or
appointment books for Director Mulvaney or any acting or
permanent OMB Director, generated since January 20,
2017. See Decl. of Heather Walsh
(“First Walsh Decl.”) ¶ 6, ECF No. 12-3;
see also Compl. ¶ 9, ECF No. 1. OMB later
informed Plaintiffs that it does not maintain visitor logs or
call logs, and thus, it possesses no records responsive to
the first two categories of requested documents. See
First Walsh Decl. ¶ 6. Plaintiffs are apparently
satisfied with that response, and the motions presently
before the Court concern only the final category of records.
See Mem. P. & A. Supp. Def.'s Mot. Summ. J.
(“Def.'s MSJ”) at 2, ECF No. 12-1; see
generally Mem. P. & A. Supp. Pls.' Cross-Mot.
Summ. J & Opp'n Def.'s Mot. Summ. J.
(“Pls.' MSJ”), ECF No. 13.
search for records responsive to Plaintiffs' request for
calendar or appointment books, OMB reviewed Microsoft Outlook
calendars maintained by Mark Sandy-the Acting Director of OMB
from January 20, 2017 until mid-February 2017-and by current
OMB Director Mick Mulvaney. See First Walsh Decl.
¶ 8. OMB identified 208 pages of calendar records as
responsive to Plaintiffs' request. See First
Walsh Decl. ¶¶ 9-13. OMB released all 208 pages to
Plaintiffs, but redacted numerous calendar entries, citing
FOIA Exemptions 5 and 6. See First Walsh Decl.
¶ 17. Plaintiffs do not challenge the adequacy of
OMB's search and do not challenge OMB's withholdings
under FOIA Exemption 6. But Plaintiffs dispute a portion of
OMB's Exemption 5 withholdings. See Def.'s
Statement of Material Facts Supp. Def.'s Mot. Summ. J.
¶ 16 (“Def.'s SMF”), ECF No. 12-2.
Specifically, this suit concerns certain withholdings under
Exemption 5's deliberative process and presidential
communications privileges. See generally Pls.' MSJ.
to the deliberative process privilege, OMB has redacted
“calendar entries that would reveal the particular
subject matter of agency meetings, as well as entries for
preparatory sessions that would reveal the deliberations
occurring in subsequent meetings.” Def.'s SMF
¶ 13; see also First Walsh Decl. ¶¶
18, 20-25. More precisely, OMB contends that it has
“redacted certain entries that reference specific
narrow discussions reflecting the thinking and deliberations
of Executive Branch officials, including the Director.”
First Walsh Decl. ¶ 21. OMB has provided a general
description of the topics of discussion at the meetings
memorialized by the calendar entries-for example, “tax
policy” or “healthcare policy.” First Walsh
Decl. ¶ 24; First Walsh Decl. Ex. 1, ECF No. 12-3. In
addition, OMB has redacted one calendar entry under the
deliberative process privilege because, though the subject
matter of the meeting is not featured directly on the
calendar, the entry features the names of meeting
participants and, OMB contends that “[i]f the names of
those individuals were released, the topic of the meeting
would be easily ascertained given public, external events
going on at the time the meeting occurred.” Second
Walsh Decl. ¶ 6.
do not challenge OMB's withholding of the subject matter
of the meetings for which OMB has asserted the deliberative
process privilege. See Pls.' MSJ at 1, n.1.
Rather, Plaintiffs challenge OMB's redaction of
additional information included in these calendar
entries-such as, the names of meeting attendees, the
locations of meetings, and the “inviter” who
added the meetings to the Director's calendar.
See Pls.' MSJ at 1-11. OMB has agreed to turn
over this information with respect to many calendar entries,
but insists that redaction is warranted to shield the names
of meeting participants, the locations of meetings, and the
like with respect to entries for which the agency has
determined that release of this information “would so
expose the deliberative process that it must be covered by
the privilege.” See Def.'s Consolidated
Opp'n to Pls.' Cross-Mot. Summ. J. & Reply Supp.
Def.'s Mot. Summ. J. (“Def.'s Opp'n &
Reply”) at 6, ECF No. 16 (internal quotation marks
omitted) (quoting Wolfe v. HHS, 839 F.2d 768, 774
(D.C. Cir. 1988) (en banc)).
to the presidential communications privilege, OMB has
redacted “calendar entries that memorialize
communications with the President, Vice President, or their
senior advisors, or preparations for such meetings.”
Def.'s SMF ¶ 14. According to OMB, it has
“only redacted those entries in which (1) the President
or Vice President attended the meeting; (2) the meeting took
place in a location in which it would be easily inferred that
the President or Vice President was in attendance; or (3) the
calendar entry reflected preparation for a meeting that fell
under one of the previous two categories.” Second Walsh
Decl. ¶ 3. These meetings include “instances in
which Director Mulvaney either advised the President or Vice
President directly or provided advice to other [Executive
Office of the President] officials who would use that
information and analysis to inform their advice to the
President.” Second Wash Decl. ¶ 5. For entries
that OMB contends are covered by both the deliberative
process privilege and the presidential communications
privilege, Plaintiffs do not challenge the withholding of the
subject matter of the meetings. See Pls.' MSJ at
1 n.1. But for entries for which OMB invokes only the
presidential communications privilege, Plaintiffs seek
disclosure of all redacted information. See Reply
Supp. Pls.' Cross-Mot. Summ. J. (“Pls.'
Reply”) at 10-22, ECF No. 18. The parties have filed
cross motions for summary judgment, which are now ripe for
Freedom of Information Act
Freedom of Information Act, or FOIA, “sets forth a
policy of broad disclosure of Government documents in order
‘to ensure an informed citizenry, vital to the
functioning of a democratic society.'” FBI v.
Abramson, 456 U.S. 615, 621 (1982) (quoting NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242
(1978)); see also Judicial Watch, Inc. v. U.S. Dep't
of Def., 847 F.3d 735, 738 (D.C. Cir. 2017)
(“Congress enacted FOIA to give the public
‘access to official information long shielded
unnecessarily from public view.'” (quoting
Nat'l Ass'n of Criminal Def. Lawyers v. U.S.
Dep't of Justice Exec. Office for U.S. Attorneys,
829 F.3d 741, 744 (D.C. Cir. 2016)). The Act mandates release
of properly requested federal agency records unless the
materials fall squarely within one of nine statutory
exemptions. Milner v. Dep't of Navy,
562 U.S. 562, 565 (2011); Students Against Genocide v.
Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001)
(citing 5 U.S.C. § 552(a)(3)(A), (b)).
cases typically and appropriately are decided on motions for
summary judgment.” Defenders of Wildlife v. U.S.
Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)
(citing Bigwood v. U.S. Agency for Int'l Dev.,
484 F.Supp.2d 68, 73 (D.D.C. 2007)). The agency is entitled
to summary judgment if no material facts are genuinely in
dispute and the agency demonstrates “that its search
for responsive records was adequate, that any exemptions
claimed actually apply, and that any reasonably segregable
non-exempt parts of records have been disclosed after
redaction of exempt information.” Competitive
Enter. Inst. v. EPA, 232 F.Supp.3d 172, 181 (D.D.C.
2017). “This burden does not shift even when the
requester files a cross-motion for summary judgment because
‘the Government ultimately has the onus of proving that
the documents are exempt from disclosure,' while the
‘burden upon the requester is merely to establish the
absence of material factual issues before a summary
disposition of the case could permissibly occur.'”
Hardy v. ATF, 243 F.Supp.3d 155, 162 (D.D.C. 2017)
(brackets omitted) (quoting Pub. Citizen Health Research
Grp. v. FDA, 185 F.3d 898, 904-05 (D.C. Cir. 1999)).
carry its burden, the agency must provide “a relatively
detailed justification, specifically identifying the reasons
why a particular exemption is relevant and correlating those
claims with the particular part of the withheld document to
which they apply.” Elec. Privacy Info. Ctr. v. U.S.
Drug Enf't Agency, 192 F.Supp.3d 92, 103 (D.D.C.
2016) (quoting Mead Data Cent., Inc. v. U.S. Dep't of
Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).
“[T]he government cannot justify its withholdings on
the basis of summary statements that merely reiterate legal
standards or offer ‘far-ranging category definitions
for information.'” Citizens for Responsibility
& Ethics in Wash. v. U.S. Dep't of Justice, 955
F.Supp.2d 4, 13 (D.D.C. 2013) (quoting King v. U.S.
Dep't of Justice, 830 F.2d 210, 221 (D.C. Cir.
1987)). A court will endorse an agency's decision to
withhold records if the agency's justification for
invoking a FOIA exemption “appears ‘logical'
or ‘plausible.'” Pinson v. U.S. Dep't
of Justice, 245 F.Supp.3d 225, 239 (D.D.C. 2017)
(quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C.
Cir. 2007)). Nonetheless, “exemptions from disclosure
must be narrowly construed . . . and conclusory and
generalized allegations of exemptions are
unacceptable.” Morley v. CIA, 508 F.3d 1108,
1114-15 (D.C. Cir. 2007) (citation and internal quotation
marks omitted); see also Senate of Com. of P.R. v. U.S.
Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987)
(“[W]here no factual support is provided for an
essential element of the claimed privilege or
shield, the label ‘conclusory' is surely