United States District Court, District of Columbia
C. LAMBERTH JUDGE
Clinton's use of a private email server while she was
Secretary of State has spawned a rash of Freedom of
Information Act (FOIA) lawsuits, including this one. One of
the lawsuits, Leopold v. U.S. Department of State,
Civil Case No. 15-123 (Contreras, J.), led to the release of
an email in which then-Secretary Clinton seemingly directed
her deputy chief of staff Jake Sullivan to strip the headings
from a classified document and send it over an unsecure fax
suit asks for emails about that email. When the
Clinton-Sullivan exchange was released in 2016, it
precipitated a firestorm of media and Congressional
inquiries. Those inquiries themselves prompted a flurry of
documents between State Department officials planning and
executing a public response. At a daily briefing the day
after its release, Department spokesperson John Kirby said,
"We did do some forensics on [the Clinton-Sullivan email
exchange] and found no evidence it was actually emailed to
her." A few months later, Judicial Watch filed this
lawsuit to enforce its FOIA requests for records relating to
the Clinton-Sullivan exchange and for the factual basis of
after the spotlight moved to fresher intrigue, lawyers
remain. The dispute has narrowed to nineteen documents that
show State Department officials in the throes of responding
to inquiries about the email. State seeks to partially
withhold these documents under FOIA's Exemption 5, which
incorporates the attorney-client and deliberative process
privileges. At least, Judicial Watch argues State applied the
privileges too broadly. At most, Judicial Watch contends the
deliberative process privilege should not apply at all,
arguing it cannot shield government misconduct. On July 24,
2018, the Court ordered  State to provide unredacted
copies of the documents for review ex parte to
determine whether State properly invoked the privileges.
on its review, the Court agrees with State in part and
disagrees in part. After reviewing the relevant legal
standards, this opinion summarizes each document and applies
the appropriate rule. The opinion concludes by granting
Judicial Watch's cross-motion for summary judgment 
for ten documents,  granting State's cross-motion for
summary judgment  for the remaining nine,  and denying the
balance of both motions.
provides a judicially enforceable right of access to federal
agency records, unless the records are protected from
disclosure by one of nine exemptions or three special law
enforcement exclusions. See 5 U.S.C. § 552.
Exemption 5, § 552(b)(5), allows government agencies to
withhold documents "normally privileged in the civil
discovery context." NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 149 (1975). According to the D.C.
Circuit, Exemption 5 "unequivocally" incorporates
"all civil discovery rules," including the
attorney-client and deliberative process privileges.
Martin v. Office of Special Counsel, Merit Sys.
Protection Bd, 819 F.2d 1181, 1185 (D.C. Cir. 1987).
When an agency seeks to invoke a privilege, it must present
sufficient facts-either in its Vaughn index or,
during ex parte review, on the document's
face-establishing the privilege applies. See Bartholdi
Cable Co. v. F.C.C., 114 F.3d 274, 280 (D.C. Cir. 1997).
And where application of a privilege is unclear, it
"must 'be construed as narrowly as consistent with
efficient Government operation.'" Mapother v.
Dep't of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993)
(quoting Wolfe v. Dep 't of Health & Human
Servs., 839 F.2d 768, 773-74 (D.C. Cir. 1988) (en
attorney-client privilege protects "confidential
communications between an attorney and his client relating to
a legal matter for which the client has sought professional
advice." Mead Data Cent., Inc. v. U.S. Dep't of
Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977). In
government agencies, an attorney-client relationship is
inferred when the agency "deal[s] with its attorneys as
would any private party seeking advice to protect personal
interests." Coastal States Gas Corp. v. Dep't of
Energy, 617 F.2d 854, 863 (D.C. Cir. 1980).
Deliberative Process Privilege
deliberative process privilege promotes and protects candor
in governmental decisionmaking. Mapother, 3 F.3d at
1537. It allows agencies to withhold communications that are
both predecisional and deliberative. Id.
is predecisional when "antecedent to the adoption of an
agency policy." Ancient Coin Collectors Guild v.
U.S. Dep't of State, 641 F.3d 504, 513 (D.C. Cir.
2011) (internal quotation marks omitted) (quoting Jordan
v. U.S. Dep 't of Justice, 591 F.2d 753, 774 (D.C.
Cir. 1978) (en banc)). Whether a communication is antecedent
turns on the role it plays in the decisionmaking process. For
instance, a recommendation from someone lacking legal or
practical authority is predecisional since the final
decisionmaker can decline to adopt it. See Access Reports
v. Dep't of Justice, 926 F.2d 1192, 1195 (D.C. Cir.
1991). Relatedly, an ex post communication by a subordinate
explaining a superior's prior decision may still be
predecisional if it discusses recommendations not expressly
adopted. See Sears, 421 U.S. at 151-53.
is deliberative when it reflects the
"give-and-take" of decisionmaking. Coastal
States, 617 F.2d at 866. This means the privilege
"covers recommendations, draft documents, proposals,
suggestions, and other subjective documents" conveying
the author's judgment. Id.
the Court of Appeals has never addressed applying the
deliberative process privilege to public-relations issues,
numerous district court opinions hold deliberations over
"how to respond to media inquiries" are protected
when "generated as part of a continuous process of
agency decision making." Judicial Watch, Inc. v.
U.S. Dep't of Homeland Sec, 736 F.Supp.2d 202,
208-09 (D.D.C. 2010).
points have been characterized as "inescapably]"
part of that process, since by their nature they are
"rarely the final decision about what the [speaker] will
[A speaker] may elect to use all, some, or none of the
talking points .... And even when [speakers] do follow their
talking points, they often do not recite the points
word-for-word.... The final decision [i]s what [the speaker]
actually said to the media, which is, of course, already a
matter of public record.... A government employee drafting
talking points ... needs to know that her advice will remain
privileged regardless of whether the [speaker] ultimately
sticks to the script or decides to extemporize. It is
accordingly of no moment [whether the speaker] ultimately
"stuck to the talking points"-the point is that she
might not have.... Moreover, sticking to talking points often
does not entail a verbatim recitation, leaving open the
possibility that "a simple comparison" of the
talking points with the official's public remarks would
reveal the agency's deliberations.
Am. Ctr. for Law & Justice v. U.S. Dep't of
Justice, No. 16-2188, 2018 WL 4283561, at *6-8 (D.D.C.
Sept. 7, 2018) (quoting Mapother, 3. F.3d at 1538).
this discussion proves too much. Extending it to its logical
limits means any prepared remarks-even the State of the
Union-could be withheld under the deliberative process
privilege, since a speaker could always go off-script,
extemporally exposing the final stage of a deliberative
process. And although no one needs FOIA to obtain the State
of the Union (numerous videos and transcripts are available),
government officials give hundreds of speeches every day, all
of which are important, though many elude recording or
transcription. So stretching the deliberative process
privilege would put many important public statements outside
FOIA's grasp, even well after the statements were made.
talking points considered by the American Center for Law
& Justice court further distinguish its result.
Those talking points were not ordinary talking points
prepared for an ordinary spokesperson in an ordinary press
briefing. The talking points were drafted by Department of
Justice aides for use by then-Attorney General Loretta Lynch
in press appearances to defend her widely panned tarmac
meeting with former-President Bill Clinton during the 2016
presidential campaign. Because the talking points were
prepared by a subordinate staffer, General Lynch could
override them at any point, a fact the opinion recognized.
Id. Put another way, the talking points at issue
were effectively "advice from subordinates," not
the final word on the Department's public position.
Id. The opinion acknowledged an alternate style of
talking points-those "representing] the agency's
[final] decision about what to say"-might induce a
different result. Id.
cases echo that limitation by emphasizing that the
deliberative process privilege applies to "records
preceding] the finalization of the [agency]'s
media response" reflecting the "give-and-take"
leading to a consensus on the agency's public position.
Cause of Action v. IRS, 125 F.Supp.3d 145, 160
(D.D.C. 2015) (emphasis added); see also Judicial Watch,
Inc. v. U.S. Dep't of Commerce, 337 F.Supp.2d 146,
174 (D.D.C. 2004) (holding the deliberative process privilege
properly protected talking points "prepared by [agency]
employees for the consideration of [agency]
decision-makers"). And not least, this treatment
comports with the Court of Appeals's command to construe
Exemption 5 privileges as narrowly as possible. See
Mapother, 3 F.3d at 1537.
The Government Conduct Exception to the Deliberative Process
"[W]here there is reason to believe" documents
withheld under the deliberative process privilege "may
shed light on government misconduct," courts can decline
to recognize the privilege, since "shielding internal
government deliberations in this context does not serve
'the public's interest in honest, effective
government.'" In re Sealed Case, 121 F.3d
729, 738 (D.C. Cir. 1997) (quoting Texaco P.R., Inc. v.
Dep 't of Consumer Affairs, 60 F.3d 867, 885 (1st
exception is well established in civil discovery. See,
e.g., Hinckley v. United States, 140 F.3d 277, 285 (D.C.
Cir. 1998). The Court of Appeals, however, has never decided
whether the exception abrogates the privilege in FOIA
litigation, and lower courts have divided. Compare, e.g.,
Judicial Watch, Inc. v. U.S. Dep't of State, 241
F.Supp.3d 174, 182-83 (D.D.C. 2017) (Berman Jackson, J.)
(holding the government conduct exception does not apply to
FOIA cases), with, e.g., Nat'l Whistleblower Ctr. v.
Dep't of Health & Human Servs., 903 F.Supp.2d
59, 66 (D.D.C. 2012) (Boasberg, J.) (suggesting the
government conduct exception applies to FOIA cases).