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Property of People, Inc. v. Office of Management and Budget

United States District Court, District of Columbia

September 14, 2018

PROPERTY OF THE PEOPLE, INC., et al., Plaintiffs,




         Pursuant 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.


         In May 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.[1] 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.

         In its 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.[2] See generally Pls.' MSJ.

         Pursuant 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.

         Plaintiffs 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)).

         Pursuant 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 decision.


         A. Freedom of Information Act

         The 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)).

         “FOIA 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)).

         To 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 apt.”).

         B. ...

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