United States District Court, District of Columbia
PROPERTY OF THE PEOPLE, INC. and RYAN NOAH SHAPIRO, Plaintiffs,
v.
OFFICE OF MANAGEMENT AND BUDGET, Defendant.
Re
Document Nos. 25, 27
MEMORANDUM OPINION, GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS' CROSS-MOTION
FOR SUMMARY JUDGMENT
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
Before
the Court for the second time on cross-motions for summary
judgment, this Freedom of Information Act
(“FOIA”) case now involves only one narrow
dispute. Plaintiffs Ryan Shapiro and Property of the People,
Inc. contend that they are entitled to eight entries in a
Microsoft Outlook calendar maintained by the Director of the
Office of Management and Budget (“OMB”).
According to OMB, each of these eight entries corresponds to
a meeting of the National Security Council
(“NSC”) that concerned one of three subject
matters: “foreign relations policy, ”
“transportation policy, ” or
“infrastructure policy.” But beyond those general
subject-matter descriptions, OMB has withheld the eight
entries in their entirety-asserting the presidential
communications privilege. The sole question for the Court,
then, is whether OMB has established that this privilege
claim is proper. For the reasons provided below, OMB has met
its burden, so the Court grants the agency's motion and
denies Plaintiffs'.
II.
LEGAL STANDARD
As the
Court explained in its prior opinion in this case, 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.” Prop. of
the People, Inc. v. Office of Mgmt. & Budget, 330
F.Supp.3d 373, 379 (D.D.C. 2018) (internal quotation marks
omitted) (quoting FBI v. Abramson, 456 U.S. 615, 621
(1982)). “The Act requires government agencies to make
information available upon request, unless the information is
protected by one of nine statutory
‘exemptions.'” Judicial Watch, Inc. v.
U.S. Dep't of Def., 847 F.3d 735, 738 (D.C. Cir.
2017) (quoting NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 136 (1975)); see also 5 U.S.C. §
552(b). Cases arising under the Act “typically and
appropriately are decided on motions for summary
judgment.” Pinson v. Dep't of Justice, 313
F.Supp.3d 88, 105 (D.D.C. 2018) (quoting Defs. of
Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87
(D.D.C. 2009)). Summary judgment is generally warranted when
“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). For these purposes, a fact is
“material” if it is “capable of affecting
the substantive outcome of the litigation.”
Pinson, 313 F.Supp.3d at 105. “A dispute is
genuine if there is sufficient evidence for a reasonable jury
to return a verdict for the nonmovant.” Bloche v.
Dep't of Def., 370 F.Supp.3d 40, 49 (D.D.C. 2019).
This
all means that, in the “FOIA context, a government
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 the records have been
disclosed after redaction of exempt information.'”
Id. (internal quotation marks omitted) (quoting
Prop. of the People, 330 F.Supp.3d at 380). The
burden is thus on the government, and that “burden does
not shift even when the requester files a cross-motion for
summary judgment because ‘the [g]overnment 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) (internal quotation marks and brackets
omitted) (quoting Pub. Citizen Health Research Grp. v.
FDA, 185 F.3d 898, 904-05 (D.C. Cir. 1999)).
To meet
its burden, the government may rely on affidavits or
“declarations that are reasonably detailed and
non-conclusory.” Pinson, 313 F.Supp.3d at 106.
The Court may grant summary judgment based on such materials
when they “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)). Thus, “[u]ncontradicted, plausible affidavits
showing reasonable specificity and a logical relation to the
exemption are likely to prevail.” Ancient Coin
Collectors Guild v. U.S. Dep't of State, 641 F.3d
504, 509 (D.C. Cir. 2011). That said, FOIA exemptions must
also be “narrowly construed, ” and
“conclusory and generalized allegations of exemptions
are unacceptable.” Prop. of the People, 330
F.Supp.3d at 380 (quoting Morley v. CIA, 508 F.3d
1108, 1114-15 (D.C. Cir. 2007)).
III.
ANALYSIS
As the
Court already noted, the parties' dispute at this stage
of the proceedings is narrow. Plaintiffs now challenge only
the withholding of eight calendar entries related to meetings
of the NSC. According to OMB, those eight entries are exempt
from disclosure under FOIA Exemption 5, which applies to
agency records “that would not be available by law to a
party . . . in litigation with the agency, ” 5 U.S.C.
§ 552(b)(5). The exemption, in other words,
“incorporates the traditional privileges that the
Government could assert in civil litigation against a private
litigant-including the presidential communications
privilege.” Bloche, 370 F.Supp.3d at 50
(internal quotation marks omitted) (quoting Loving v.
Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 2008)).
As its
name likely suggests, the presidential communications
privilege “preserves the President's ability to
obtain candid and informed opinions from his advisors and to
make decisions.” Loving, 550 F.3d at 37. It
“applies to communications made in the process of
arriving at presidential decisions, ” and it protects
those communications in their entirety. In re Sealed
Case, 121 F.3d 729, 745 (D.C. Cir. 1997). Naturally,
then, the privilege protects “communications directly
involving and documents actually viewed by the
President” during that process of shaping policies and
making presidential decisions. Judicial Watch, Inc. v.
Dep't of Justice, 365 F.3d 1108, 1114 (D.C. Cir.
2004); see also Nixon v. Adm'r of Gen. Servs.,
433 U.S. 425, 449 (1977). But the privilege extends further
as well: to communications “‘solicited and
received' by . . . ‘immediate White House
advisers'”-those with “‘broad and
significant responsibility for investigating and formulating
the advice to be given to the President.'”
Loving, 550 F.3d at 37 (omission in original)
(quoting Judicial Watch v. Dep't of Justice, 365
F.3d at 1114).
Here,
OMB does not assert that the eight NSC meetings constitute
communications that actually reached the President. The
agency concedes that the President did not himself attend the
majority (and maybe all) of the eight meetings. See
Def.'s Opp'n Pl.'s Cross-Mot. Summ. J. at 2 n.1,
ECF No. 31. Rather, most of these meetings, OMB says,
involved the NSC's Principals Committee
(“PC”) or Principals Small Group
(“PSG”)-which are the “Cabinet-level senior
interagency forum[s] for considering policy issues”
affecting national security, see National Security
Presidential Memorandum-4 (“NPRM-4”), 82 Fed.
Reg. 16881, 16882 (Apr. 4, 2017).[1] Notwithstanding the
President's absence, OMB contends that the eight meetings
are privileged because the NSC is, by its nature, a body
whose sole purpose is to advise the President. Consequently,
any NSC meeting, OMB argues, is a communication
“solicited and received” by the President's
immediate advisers.
For
their part, Plaintiffs avoid any argument that the Outlook
calendar entries are not the kind of document that can be
covered by the privilege. Instead, Plaintiffs focus on the
fact that most of the members of the NSC (and the PC and PSG)
are Cabinet officials or other agency heads-individuals whose
primary responsibilities are to run their respective
agencies, not formulate advice to the President. Thus,
according to Plaintiffs, OMB has not established how these
particular NSC communications were “solicited and
received” by immediate White House advisers.
In the
Court's view, OMB has the better of these arguments, for
at ...