MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
This
lawsuit arises from a Freedom of Information Act
("FOIA") request that Plaintiff Judicial Watch,
Inc. made to Defendant United States Department of State in
2011. Plaintiff requested documents related to, among other
things, former President Bill Clinton's speaking
engagements and financial ties. When Plaintiff filed suit
seeking responsive information, Defendant provided Plaintiff
with non-exempt parts of responsive documents On a rolling
basis over nearly four years. The parties' negotiations
resulted in the release of further information. Redactions to
seven of former Secretary of State Hillary Clinton's
daily schedules remain at issue.
Defendant
contends that these redactions are appropriate under FOIA
Exemption 5, which 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).
Plaintiff contends this exemption does not apply and that the
information is being wrongly withheld.
Currently
before the Court are Defendant's Motion for Summary
Judgment and Plaintiffs Cross-Motion for Summary Judgment.
Upon consideration of the briefing, [1] the relevant legal
authorities, and the record as it currently stands, the Court
GRANTS-in-PART and HOLDS-in-
ABEYANCE-in-PART Defendant's [51] Motion
for Summary Judgment and DENIES-in-PART and
HOLDS-in-ABEYANCE-in-PART Plaintiffs [52]
Cross-Motion for Summary Judgment. The Court concludes that,
with one potential exception, the redactions are exempt from
FOIA under Exemption 5 due to the presidential communications
privilege. The Court shall give Defendant an opportunity to
submit further information ex parte about one
redaction before the Court issues a final decision as to that
redaction.
I.
BACKGROUND
On May
2, 2011, Plaintiff made a FOIA request to Defendant that
sought, among other things, documents regarding former
President Clinton's "speech schedule" and
"personal or charitable financial relationships with
foreign leaders and governments." Stmt, of Material
Facts, ECF No. 51-3 ("Def.'s Stmt."),
¶¶ 1-2 (summarizing portion of request). When
Defendant failed to produce responsive records, Plaintiff
filed this case on May 28, 2013, in an effort to obtain them.
Id. ¶ 3. Thereafter the agency made rolling
productions of non-exempt material every six weeks from
October 21, 2013, through August 29, 2017. Id.
¶4. The total production amounted to 1, 183 unredacted
documents and portions of 1, 777 more, while Defendant
withheld 17 documents in their entirety. Id. ¶
5. Although Plaintiff has not challenged the adequacy of the
search, nor the application of exemptions to most of the
withheld material, Plaintiff disagrees with Defendant's
efforts to withhold parts of seven documents under FOIA
Exemption 5. Id. ¶¶ 6-7.
Those
documents are certain of former Secretary Hillary
Clinton's daily schedules, [2] and the withholdings allegedly
pertain "only to information that identifies the subject
matter and attendees of sensitive meetings concerning
national security matters, such as certain meetings of the
National Security Council." Id. ¶¶
7-8. Plaintiff does not know enough to say whether
Defendant's limitation is true, but Plaintiff disagrees
with the invocation of this exemption. Pl.'s Resp. to
Def.'s Stmt, of Material Facts Not in Dispute and Stmt,
of Material Facts in Supp. of Cross-Mot, for Summ. J., ECF
No. 52-1 (collectively, "Pl.'s Stmt."), ¶
8 (response to Def.'s Stmt.); id. ¶ 1
(Plaintiffs further statement of material fact).
The
parties briefed cross-motions for summary judgment. Eric F.
Stein filed a declaration in support of Defendant State's
withholdings. Eric F. Stein, ECF No. 51-2 ("Stein
Decl.").
The
Court exercised its discretion to grant Plaintiffs request
for in camera review of the contested withholdings,
and held in abeyance the remainder of Plaintiff s [52]
Cross-Motion for Summary Judgment as well as State's [51]
Motion for Summary Judgment. July 5, 2019 Order, ECF No. 56.
At the Court's instruction, State submitted the documents
ex parte, and the parties responded to the
Court's request for any pertinent new authority.
Def.'s Notice of Delivery of Documents for in
Camera Inspection, ECF No. 57; Joint Notice of Pertinent
New Auth., ECF No. 58 (reporting only a case previously
identified by the Court).
Now
that the Court has reviewed the withholdings in
camera, the remainder of the pending motions is ripe for
decision.
II.
LEGAL STANDARD
Congress
enacted FOIA to "pierce the veil of administrative
secrecy and to open agency action to the light of public
scrutiny." Dep't of the Air Force v. Rose,
425 U.S. 352, 361 (1976) (internal quotation marks omitted).
Congress remained sensitive to the need to achieve balance
between these objectives and the potential that
"legitimate governmental and private interests could be
harmed by release of certain types of information."
FBI v. Abramson, 456 U.S. 615, 621 (1982). To that
end, FOIA "requires federal agencies to make Government
records available to the public, subject to nine
exemptions." Milner v. Dep't of the Navy,
562 U.S. 562, 564 (2011). Ultimately, "disclosure, not
secrecy, is the dominant objective of the Act."
Rose, 425 U.S. at 361. For this reason, the
"exemptions are explicitly made exclusive, and must be
narrowly construed." Milner, 562 U.S. at 565
(citations omitted) (internal quotation marks omitted).
When
presented with a motion for summary judgment in this context,
the district court must conduct a de novo review of
the record, which requires the court to "ascertain
whether the agency has sustained its burden of demonstrating
the documents requested are . . . exempt from disclosure
under the FOIA." Multi Ag Media LLC v. Dep't of
Agriculture, 515 F.3d 1224, 1227 (D.C. Cir. 2008)
(alteration in original). The burden is on the agency to
justify its response to the plaintiffs request. 5 U.S.C.
§ 552(a)(4)(B). "An agency may sustain its burden
by means of affidavits, but only if they contain reasonable
specificity of detail rather than merely conclusory
statements, and if they are not called into question by
contradictory evidence in the record or by evidence of agency
bad faith." Multi Ag Media, 515 F.3d at 1227
(internal quotation marks omitted). "If an agency's
affidavit describes the justifications for withholding the
information with specific detail, demonstrates that the
information withheld logically falls within the claimed
ex-emption, and is not contradicted by contrary evidence in
the record or by evidence of the agency's bad faith, then
summary judgment is warranted on the basis of the affidavit
alone." Am. Civil Liberties Union v. U.S.
Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir.
2011). "Uncontradicted, 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). Summary judgment is proper when
the pleadings, the discovery materials on file, and any
affidavits or declarations "show[ ] 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).
III.
DISCUSSION
Because
Plaintiff does not challenge the adequacy of Defendant's
search for records responsive to Plaintiffs FOIA request, the
sole issue before the Court is whether the redactions to
seven of former ...