Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Plaintiff,
v. No. 17-cv-0842-CRC
Defendants.
TABLE OF CONTENTS
INTRODUCTION ......................................................................................................................... 1
ARGUMENT ................................................................................................................................. 3
2. The OLC Outline And Documents Relating To Proposed Press Guidance, Talking
Points, And Recommended Responses To Congressional Questions Are
Predecisional and Deliberative .................................................................................. 17
D. Plaintiff Has Not Established That Defendants Have Waived Their FOIA Exemption
5 Claims ........................................................................................................................... 21
CONCLUSION ............................................................................................................................ 31
i
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TABLE OF AUTHORITIES
Cases Page(s)
Access Reports v. U.S. Dep’t of Justice,
926 F.2d 1192 (D.C. Cir. 1991) .............................................................................................. 20
Afshar v. Dep’t of State,
702 F.2d 1125 (D.C. Cir. 1983) .............................................................................................. 22
Am. Civil Liberties Union v. CIA,
109 F. Supp. 3d 220 (D.D.C. 2015) ........................................................................................ 23
Am. Civil Liberties Union v. U.S. Dep’t of Justice,
No. 15-cv-1954, 2016 WL 889739 (S.D.N.Y. Mar. 3, 2016) ................................................ 27
Am. Civil Liberties Union v. U.S. Dep’t of Def.,
628 F.3d 612 (D.C. Cir. 2011) ................................................................................................ 26
Am. Civil Liberties Union v. U.S. Dep’t of Homeland Security,
738 F. Supp. 2d 93 (D.D.C. 2010) .................................................................................... 19, 29
ii
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iii
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Quinon v. FBI,
86 F.3d 1222 (D.D.C. 1996) .................................................................................................. 27
iv
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Constitutional Law
U.S. Const., Art. II § 2, cl. 1 ........................................................................................................ 15
Statute
5 U.S.C. § 552 ................................................................................................................................ 1
Regulation
Executive Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009) .................................................. 10-11
Other Authorities
President Donald J. Trump Announces Key Additions to the Office of the White House Counsel
(Mar. 7, 2017),
https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-key-
additions-office-white-house-counsel/ ...................................................................................... 5
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INTRODUCTION
explaining the President’s legal authority to launch U.S. military airstrikes against the Al Shayrat
airfield in Syria on April 6, 2017, including a legal memorandum providing predecisional legal
advice and recommendations to the President and his top national security advisors, an outline
drafted by the Department of Justice’s Office of Legal Counsel (“OLC”) prior to a briefing of the
Attorney General, and various documents containing proposed press guidance, talking points,
and recommended responses to questions from Congress about the legal basis for the strikes. As
demonstrated in the declarations submitted with Defendants’ opening brief, and the supplemental
declarations submitted herewith, these documents unequivocally constitute the very heart of
material that is shielded from disclosure by FOIA Exemption 5 under the presidential
In opposition, Plaintiff offers a kitchen-sink of claims that the documents are not
protected by the applicable privileges, none of which has merit. Plaintiff incorrectly contends
that Defendants have not provided sufficient information for the Court to determine the
(“State”), however, unquestionably show that all three copies of the memorandum located by
Defendants were solicited, received, and coordinated by the National Security Council Legal
Adviser’s office as part of the presidential deliberative process preceding the April 6 strikes. As
such, the memorandum is a text book example of a document covered by the presidential
communications privilege.
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attorney-client privilege. Contrary to Plaintiff’s claim, Defendants have attested to the continued
confidentiality of each document withheld under the attorney-client privilege, including the legal
law. Defendants further explained the importance of confidentiality to the legal advice at
issue—which related to highly sensitive matters of national security—and the potential harm to
Plaintiff’s claims that the deliberative process privilege is inapplicable also fail. The
withheld documents conveyed only advice and recommendations for the consideration of senior
Executive Branch decision-makers, and thus are the type of documents that the Court of Appeals
has found are not subject to the “working law” doctrine. Moreover, Defendants have adequately
demonstrated that the OLC outline and the talking points and other guidance documents, which
Also unconvincing are Plaintiff’s arguments that Defendants have waived their
Exemption 5 claims through the Government’s so-called “publicity campaign” defending the
legality of the April 6 strikes. It is Plaintiff’s burden to demonstrate that prior public disclosures
have waived Exemption 5. And none of the materials it submits, which consist primarily of
general public comments attributed to government officials and an alleged leaked document
entitled “Basis for Using Force,” are sufficient to meet the requirements of waiver.
unpersuasive. Its objections ignore the now eight declarations Defendants have filed further
explaining the document descriptions provided in the Vaughn Index. It also attempts
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(incorrectly) to impose a burden on Defendants to show that the talking points and other
guidance documents were not “used” in communications with the public. But mere “use” of
talking point-type documents does not strip them of Exemption 5 protections and, in any event,
they have established that they are entitled to a grant of summary judgment in their favor.
ARGUMENT
At the outset, Defendants should be granted summary judgment on all issues not
contested by Plaintiff in its opposition brief. See Lane v. Dist. of Columbia, 72 F. Supp. 3d 215,
219 (D.D.C. 2014) (treating defendants’ argument in summary judgment motion as conceded
where plaintiff failed to address it in her response) (citing Antoine v. U.S. Bank Nat’l Ass’n, 821
F. Supp. 2d 1, 6 (D.D.C. 2010) (deeming an argument conceded when plaintiff did not respond
Defendants argued that they had conducted adequate searches for responsive records, had
processed and properly released all reasonably segregable information from responsive records,
and had properly withheld responsive documents in full or in part on the basis of FOIA
Exemptions 1, 3, 5, 6, and 7(C). In its opposition, Plaintiff does not contest the adequacy of
Defendants’ searches, nor does it challenge the withholding of information under Exemptions 1,
3, 6, and 7(C), or Defendants’ segregability analysis for the vast majority of the documents.1
1
Plaintiff’s brief discusses segregability with respect to only the legal memorandum (Vaughn
Index, Docs. 1-3), alleging that the unclassified information in the memorandum—specifically,
the legal analysis—can be segregated from the classified information withheld under Exemptions
1 and 3, which Plaintiff does not challenge. See Pl.’s Mem. at 10. That would be true if only
3
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Pl.’s Mem. in Support of Pl.’s Cross Mot. for Summ. J. and Opp’n to Defs.’ Mot for Summ. J.
(“Pl. Mem.”) at 8, ECF No. 26-2 (confirming Plaintiff does not challenge Exemption 1 and 3
claims), 12 n.12 (confirming the same with respect to search adequacy), 15 n.15 (confirming the
same with respect to Exemption 6 and 7(C) claims). For the reasons set forth in their opening
The only remaining issue in dispute, therefore, is whether Defendants properly withheld
information in the fifteen responsive documents at issue under FOIA Exemption 5. As explained
below, Plaintiff’s arguments are insufficient to avoid summary judgment on this claim, and
Defendants’ opening brief made clear that they properly withheld documents in full or in
part pursuant to FOIA Exemption 5 and the presidential communications, attorney-client, and
deliberative process privileges. See Defs.’ Mem. in Support of Mot. for Summ. J. (“Defs.’
Mem.”) at 13-26, ECF No. 24-1. Plaintiff’s challenges to those assertions of privilege are
Plaintiff contends that Defendants have not demonstrated the applicability of the
presidential communications privilege to the legal memorandum (Vaughn Index, Doc. 1-3)
because the memorandum was solicited and received by the staff of the National Security
Exemptions 1 and 3 were at issue. Plaintiff ignores, however, that the memorandum is exempt
from disclosure in full under Exemption 5 pursuant to the presidential communications, attorney-
client, and deliberative process privileges. Importantly, the presidential communications
privilege “applies to documents in their entirety,” In re Sealed Case, 121 F.3d 729, 745 (D.C.
Cir. 1997); thus, as a matter of law, no information in the document is segregable.
4
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Council (“NSC”) Legal Adviser, which it argues has not been adequately identified.2 See Pl.’s
Mem. at 21, 22. Plaintiff’s claim that the NSC Legal Adviser’s staff is “not . . . a sufficiently
high-level White House official for the privilege to attach,” id. at 21, is contrary to well-settled
law. As the Court of Appeals recognized, the privilege extends not only to communications
authored or solicited and received by immediate White House advisers but also members of their
staff, “since in many instances advisers must rely on their staff to investigate an issue and
formulate the advice to be given to the President.” In re Sealed Case, 121 F.3d at 752. Notably,
Plaintiff does not contest that the NSC Legal Adviser is within the hierarchy of close Presidential
Plaintiff’s claim that Defendants failed to specifically identify the NSC Legal Adviser
staff is immaterial. The applicability of the presidential communications privilege does not turn
on the identity of the presidential adviser’s staff members, but on the nature of the adviser’s
responsibilities. See id. Specifically, the privilege extends to those presidential advisers (or their
staff) within the White House who hold “broad and significant responsibility for investigating
and formulating the advice to be given the President.” Id. Here, Defendants’ declarations
confirm that the NSC Legal Adviser has such responsibility with respect to presidential decisions
concerning foreign policy and national security, including issues related to the President’s
2
Plaintiff does not contest that the legal memorandum relates to official matters of presidential
decision-making. See In re Sealed Case, 121 F.3d at 752.
3
In fact, the NSC Legal Adviser’s official White House title is Deputy Assistant to the President,
Deputy Counsel to the President for National Security Affairs, and Legal Adviser to the NSC.
See President Donald J. Trump Announces Key Additions to the Office of the White House
Counsel (Mar. 7, 2017) (“WHCO Staff Announcement”),
https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-key-
additions-office-white-house-counsel/ (last visited Jan. 9, 2018). As such, the NSC Legal
Adviser reports directly to both White House Counsel and the National Security Advisor, who
are indisputably immediate White House advisers. See In re Sealed Case, 121 F.3d at 752.
5
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authority to order military action. See Defs.’ Mem., Ex. 4, Declaration of Mark H. Herrington
(“Herrington Decl.”) ¶ 17, ECF No. 24-5; id., Ex. 5, Declaration of Eric F. Stein (“Stein Decl.”)
¶ 26, ECF No. 24-6. Indeed, the NSC Legal Adviser is the most senior legal counsel of the NSC,
which includes the President’s top national security advisors. See Herrington Decl. ¶ 15. The
record before the Court, including materials submitted by Plaintiff, demonstrates the integral role
the NSC played in the presidential deliberative process preceding the April 6 strikes. See Pl.’s
Mem., Ex. D at 4, ECF No. 26-6 (noting a statement of National Security Advisor confirming
that NSC principals group advised the President on military options against Syria); id., Ex. F at
1, ECF No. 26-8 (noting comments attributed to Defense Secretary generally explaining that
NSC “led” predecisional deliberations “to recommend diplomatic and military options to the
President”).
on the applicability of the presidential communications privilege to the legal memorandum. See
Supplemental Declaration of Eric F. Stein, Director of the Office of Information Programs and
Services, U.S. Department of State (“Suppl. Stein Decl.”) ¶¶ 6-7 (attached hereto as Exhibit 1).
As Mr. Stein explains, the legal memorandum, which was prepared by an interagency group of
lawyers for the purpose of providing advice and recommendations to the President and senior
Executive Branch officials regarding the legal basis for contemplated military action in Syria,
was solicited and received by the Deputy NSC Legal Adviser.4 See id. ¶ 6 (noting also that
“additional members of the NSC Legal Adviser’s office were included in the communication [of
4
The Deputy NSC Legal Adviser’s full title is Special Assistant to the President, Senior
Associate Counsel to the President, and Deputy NSC Legal Adviser. See WHCO Staff
Announcement. Thus, just as the NSC Legal Adviser, the Deputy NSC Legal Adviser serves
two immediate White House senior advisors. See In re Sealed Case, 121 F.3d at 752.
6
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the legal memorandum], including the NSC Legal Adviser himself”); see also Defs.’ Mem., Ex.
2, Declaration of Paul P. Colborn (“Colborn Decl.”) ¶¶ 18, 23, ECF No. 24-3; Herrington Decl.
¶¶ 15, 17; Stein Decl. ¶¶ 20, 26. “Like the NSC Legal Adviser, the Deputy NSC Legal Adviser
has broad and significant responsibility for gathering information in the course of preparing
advice for potential presentation to the President in matters that implicate[] the President’s
decisions concerning foreign policy or national security.” Suppl. Stein Decl. ¶ 6. Indeed, the
Deputy NSC Legal Adviser not only solicited and received, but also “coordinated with the
deliberations, contributing to the drafting of the document, and finalizing the document.” Id. ¶ 7.
Defendants’ submissions, including the Supplemental Stein Declaration, thus demonstrate that
Plaintiff’s citation to Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108 (D.C. Cir.
2004), does not support its contention that a presidential adviser’s staff must be more specifically
identified. See Pl.’s Mem. at 22. To the contrary, Judicial Watch reaffirmed the standard
articulated in In re Sealed Case, which focuses not on the identity of the official, but on the kind
of advisory authority held. Judicial Watch, 365 F.2d at 1114; see also id. at 1110 n.1
required to name or more specifically identify the particular staff involved with communications
concerning the legal memorandum. Nothing in the FOIA requires Defendants to volunteer
unnecessary information simply to satisfy a FOIA requester’s curiosity. See, e.g., Landmark
Legal Found. v. EPA, 272 F. Supp. 2d 59, 64 (D.D.C. 2003) (an agency is not required to
7
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Plaintiff’s claim that Defendants have not adequately justified the application of the
presidential communications privilege to the prior draft version of the legal memorandum
located by the Department of Defense (“DOD”) (Vaughn Index, Doc. 3) also fails. The
Herrington Declaration specifically states that DOD’s version of the legal memorandum was
“solicited and received” by the NSC Legal Adviser’s staff. See Herrington Decl. ¶ 15 (referring
to Vaughn Index, Doc. 3 (DOD 6-12)). The Supplemental Stein Declaration further explains
that, given his role coordinating the interagency process, “the Deputy NSC Legal Adviser and
other members of the NSC Legal Adviser’s office, including the NSC Legal Adviser, “received
prior draft versions of the document.” Suppl. Stein Decl. ¶ 7. Because the NSC Legal Adviser’s
office was involved in preparing the legal memorandum, including prior drafts, DOD’s version
of the legal memorandum is not the type of internal agency document that has been found not to
be protected by the presidential communications privilege.5 See Judicial Watch, 365 F.3d at
Defendants have shown that the presidential communications privilege applies to the legal
memorandum, and thus it is properly withheld pursuant to Exemption 5. See Defs.’ Mem. at 15-
16 (citing cases).
5
Even if the document were not protected by the presidential communications privilege, the
prior draft legal memorandum would be protected by the deliberative process privilege, and thus
still properly exempt from disclosure under Exemption 5. See Judicial Watch, 365 F.3d at 1114–
15, 1121 (explaining that with internal agency documents “the ultimate goal of protecting the . . .
President’s . . . access to candid advice is achieved under the deliberative process privilege for
those working documents that never make their way to the Office of the President.”).
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Plaintiff also claims that Defendants have failed to establish that the legal memorandum
(Vaughn Index, Docs. 1-3), the OLC outline (id., Doc. 4), and State’s recommended responses to
questions from Congress (id., Docs. 14-15) are protected by the attorney-client privilege because
Defendants allegedly provided “no more than conclusory assertions that these documents have
been kept confidential . . . .”6 Pl.’s Mem. at 15. Plaintiff’s argument attempts to divorce isolated
sentences in Defendants’ declarations from the context of the withheld documents themselves
and the nature of the decision at issue—i.e., whether to conduct military action against Syria.
the attorney-client communications reflected in the documents at issue. See Mead Data Ctr., Inc.
v. U.S. Dep’t of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977); see Colborn Decl. ¶ 18 (legal
memorandum conveyed confidential legal advice to the NSC Legal Adviser by interagency
attorneys, based on confidential information provided for the purposes of obtaining such advice);
id. ¶¶ 19, 25 (OLC outline contained confidential legal advice for the Attorney General, based on
the same confidential information, prepared by OLC attorneys, including the Acting Assistant
Attorney General of OLC (“Acting AAG”)); Stein Decl. ¶ 24 (proposed responses to questions
from Congress consisted of confidential legal advice prepared by State Department attorneys for
Department officials). With respect to each document at issue, Defendants attested that, to their
knowledge, the document was intended to be kept confidential and that confidentiality has been
maintained. See Colborn Decl. ¶ 25; Second Declaration of Paul P. Colborn, Special Counsel in
6
Plaintiff does not dispute that the information in these documents relates to “a legal matter for
which the client has sought professional advice,” Mead Data Ctr., 566 F.2d at 252. See also
Pl.’s Mem. at 16.
9
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the Office of Legal Counsel, U.S. Department of Justice (“Second Colborn Decl.”) ¶ 2 (attached
Indeed, the legal advice at issue in the legal memorandum and OLC outline concerned
highly sensitive matters involving national security and foreign policy, and, in particular, a
military action that was at the time under consideration. The expectation of confidentiality in
these areas is of particular importance and is essential to protecting the Executive’s decision-
making process and, when the legal advice is ultimately provided for the President or his senior
advisers, the President’s ability to effectively discharge his Constitutional duties. See Colborn
Decl. ¶ 3 (“One important reason OLC legal advice often needs to stay confidential is that it is
effective”); see id. ¶ 4 (noting that OLC advice frequently pertains to “very difficult and
unsettled issues of law” “in connection with highly complex and sensitive activities of the
Executive Branch”); see id. ¶ 7. Disclosure of either the client confidences provided in the
course of seeking legal advice or the legal advice itself would inhibit the Executive’s
deliberative process and the relationship of trust between government clients and attorneys. See
id. ¶¶ 5-6. Moreover, the legal memorandum is a highly classified document, see Pl.’s Mem.,
Ex. 7, Declaration of Patricia Gaviria (“Gaviria Decl.”) ¶ 19, ECF No. 24-8, which, by
definition, requires that it be kept confidential. See Executive Order 13526 § 4.1(g), 75 Fed.
7
Plaintiff argues that OLC’s declaration did not include the same statement confirming the
confidentiality of the legal memorandum as it provided for the OLC outline, suggesting that the
memorandum’s confidentiality “was not maintained.” Pl.’s Mem. at 17 (emphasis in original).
This is not a reasonable inference given the Colborn Declaration’s lengthy discussion of the
confidentiality of OLC’s legal advice, see Colborn Decl. ¶¶ 3-7, and statement that, “[t]o [his]
knowledge, the documents have not been previously disclosed publicly,” id. ¶ 31. Nevertheless,
Mr. Colborn has submitted a supplemental declaration expressly clarifying that, to OLC’s
knowledge, the confidentiality of the legal memorandum has been maintained. See Second
Colborn Decl. ¶ 2.
10
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Reg. 707 (Dec. 29, 2009) (establishing procedures for safeguarding classified national security
information); id. § 4.1(a) (restricting access to such information to those who are both cleared
for access and have a “need-to-know the information”); see New York Times Co. v. DOJ, No.
17-cv-00087 (CRC), 2017 WL 4772406, at *4 (D.D.C. Oct. 20, 2017) (finding fact that OLC
opinion was classified undercut plaintiff’s argument that it had not been kept confidential).
Against this backdrop, the declarants’ assertions that the documents at issue were intended to be
The decision in Cuban v. SEC does not compel a contrary conclusion. Cuban merely
reaffirms that “[t]he attorney-client privilege is not applicable just because the defendant states
that it applies,” and thus “[a] blanket assertion of the privilege will not suffice.” Cuban, 744 F.
Supp. 2d at 79. Cuban does not establish that Defendants’ burden can be met only by, for
example, explaining precisely what steps were taken to ensure confidentiality or identifying
exactly who had access to the documents. See Pl.’s Mem. at 17. Rather, a defendant must
provide sufficient information from which the Court can assess whether the attorney-client
privilege was properly asserted. Cuban, 744 F. Supp. 2d at 79. Defendants have met that
burden here, and other courts have held that similar assertions regarding the confidentiality of
attorney-client privileged documents are sufficient. See, e.g., Judicial Watch, 245 F. Supp. 3d
privilege where, as here, they confirmed that attorneys authored the legal memoranda at issue,
discussed the subject matter and a broad overview of each memorandum, asserted that the
confidentiality of the memoranda had been maintained, and explained the harm that would be
caused by disclosure); New York Times, 2017 WL 4772406, at *2 (finding equivalent assertions
11
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in another declaration of Mr. Colborn to establish that a particular OLC opinion was a
“quintessential example of the sort of document that falls within the attorney-client privilege”).
Finally, Plaintiff argues that State has not met its burden of showing that the
from Congress (Vaughn Index, Docs. 14-15) has been maintained because, as Plaintiff
speculates, it is “reasonable to believe that at least some of that information . . . was in fact
conveyed to Congress” given the nature of the documents. Pl.’s Mem. at 19. Plaintiff’s
suggestion that clients cannot have privileged communications with their attorneys about how to
with third parties”—is incorrect. Id. Numerous judges in this district have found that the
attorney-client privilege applies to such documents. See Defs.’ Mem. at 19 (citing cases); see
also Judicial Watch, Inc. v. U.S. Dep’t of Treasury, 802 F. Supp. 2d 185, 200, 202 (D.D.C. 2011)
(finding draft talking points protected by attorney-client privilege); Ctr. For Medicare Advocacy,
Inc. v. U.S. Dep’t of Health & Human Servs., 577 F. Supp. 2d 221, 238 (D.D.C. 2008) (same).
Moreover, Plaintiff’s conclusion does not follow the premise, as the documents include only
hypothetical questions Congress may or may not have asked and proposed responses that the
State Department officials were free to adopt or reject. See Stein Decl. ¶ 22. Regardless, the
Supplemental Stein Declaration confirms that the information in these documents was not in fact
deployed by State Department officials in the congressional hearings for which the documents
8
Defendants address Plaintiff’s additional claims relating to alleged waiver of the attorney-client
privilege in infra, Section II.D.2.
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Accordingly, Defendants properly withheld in full the legal memorandum, OLC outline,
and recommended responses to questions from Congress under Exemption 5 and the attorney-
client privilege.
withhold information in each responsive record for two reasons. See Pl.’s Mem. at 23. First,
Plaintiff argues that the withheld information constitutes the “working law” of the Executive
Branch and thus must be disclosed. Id. Second, Plaintiff argues that the OLC outline (Vaughn
Index, Doc. 4) and the documents relating to proposed press guidance, talking points, and
recommended responses to questions from Congress (Vaughn Index, Docs. 5-15) are neither
predecisional nor deliberative. Id. at 25. Both of these objections lack merit.
Plaintiff misapplies the “working law” doctrine, which requires only that agencies must
disclose “the ‘reasons which [supplied] the basis for an agency policy actually adopted.” Elec.
Frontier Found. (“EFF”) v. DOJ, 739 F.3d 1, 7 (D.C. Cir. 2014) (quoting Nat’l Labor Relations
Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 152-53 (1975) (alteration in original)). In other
words, this doctrine stands for the proposition that materials must be disclosed if they constitute
“a body of ‘secret law, used by [the agency] in the discharge of its regulatory duties and in its
dealings with the public.” Id. “Therefore, an agency must disclose ‘binding agency opinions
and interpretations’ that the agency ‘actually applies in cases before it.’” Id.; see also Coastal
States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 869 (D.C. Cir. 1980) (requiring disclosure of
“opinions [that] were routinely used by agency staff as guidance in conducting their audits, and
were retained and referred to as precedent” by the agency “in discharging its regulatory
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responsibilities”); see also, e.g., Tax Analysts v. I.R.S., 117 F.3d 607, 608, 619 (D.C. Cir. 1997)
(requiring disclosure of “Field Service Advice Memoranda” issued by the Chief Counsel of the
IRS, which were “applied routinely as the government’s legal position in its dealings with
taxpayers”). As the Court of Appeals explained in EFF, the working law doctrine does not cover
“legal memoranda that concern the advisability of a particular policy, but do not authoritatively
state or determine the agency’s policy.” EFF, 739 F.3d at 8. “‘[T]here can be no doubt that such
legal advice, given in the form of intra-agency memoranda prior to any agency decision on the
issues involved, fits exactly within the deliberative process rationale for Exemption 5.’” Id. at 8-
9 (quoting Brinton v. Dep’t of State, 636 F.2d 600, 604 (D.C. Cir. 1980) (concerning legal advice
provided by State Department’s Legal Adviser “‘on issues involving’ affairs in the Middle
East”)).
At issue in EFF was an OLC Opinion provided to FBI regarding the permissibility of
certain investigative tactics. Id. at 5. The Court of Appeals in EFF explained that “[b]ecause
OLC cannot speak authoritatively on the FBI’s policy, the OLC Opinion differs from
memoranda [the Court had] found to constitute the ‘working law’ of an agency.” Id. at 9. In
those cases, “the agency was required to disclose a document that represented a conclusive or
authoritative statement of its policy, usually a higher authority instructing a subordinate on how
the agency’s general policy applies to a particular case, or a document that determined policy or
applied established policy.” Id. EFF held that because OLC is “not authorized to make
decisions about the FBI’s investigative policy, . . . the OLC Opinion cannot be an authoritative
statement of the agency’s policy.” Id. Indeed, “[e]ven if the OLC Opinion describes the legal
parameters of what the FBI is permitted to do, it does not state or determine the FBI’s policy.
The FBI was free to decline to adopt the investigative tactics deemed legally permissible in the
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OLC Opinion.” Id. at 10; see Ball v. Bd. of Govs. of the Fed. Reserve Sys., 87 F. Supp. 3d 33, 49
(D.D.C. 2015) (finding memorandum prepared by staff for the Board of Governors of the
Federal Reserve analyzing the Board’s legal authority to extend a loan and providing the staff’s
recommendations and opinions did not constitute the working law of the Board).
These factors compel the same conclusion here. The withheld documents contain advice
and recommendations prepared for the purpose of advising the President and senior Executive
Branch decision-makers during the course of deliberative processes preceding their decisions.
See, e.g., Defs.’ Mem., Ex. 1, Declaration of Daniel R. Castellano (“Castellano Decl.”) ¶¶ 37-41,
ECF No. 24-2; Colborn Decl. ¶¶ 21, 24; Herrington Decl. ¶¶ 14-15; Stein Decl. ¶¶ 20-22. Just as
OLC lacked the authority to establish FBI policy in EFF, see 739 F.3d at 7–8, so too did the
inter-agency group of attorneys lack authority to make a policy decision on military action in
Syria. That authority rested exclusively with the President. See U.S. Const., Art. II § 2, cl. 1.
And just as FBI was free to decline to adopt the investigative tactics deemed legally permissible
by OLC, see EFF, 739 F.3d at 8-10, so too was the President free to reject the analysis and
recommendations set forth in the legal memorandum. The same goes for the OLC outline
prepared for the Acting AAG to provide advice to his superior, the Attorney General, as well as
the recommended talking points and other guidance documents prepared for the use of agency
officials in determining their communication strategies with the press and Congress.9 In each
instance, the withheld documents did not constitute a “conclusive or authoritative statement of . .
. policy,” nor did it “determine[] policy or appl[y] established policy.” EFF, 739 F.3d at 9; see
Ball, 87 F. Supp. 3d at 50. They convey or contain only advice and recommendations.
9
Plaintiff has not identified a single case in which a court found as “working law” a document
containing talking points or guidance for responding to media or congressional inquiries.
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Plaintiff’s claim that the withheld documents are distinguishable from the OLC opinion
in EFF because they constitute “a well-developed body of Executive Branch law” established
“[o]ver many years,” as opposed to OLC’s “one-off legal advice” in EFF, is unavailing. Pl.’s
Mem. at 24. The legal memorandum (and other withheld documents) does not set forth an
“authoritative statement[]” of the “Executive Branch’s legal policy on when the President may
use military force,” id. at 25, like the memoranda courts have found to be working law, see, e.g.,
Coastal States, 617 F.2d at 869. Instead, like the OLC opinion in EFF, it provided advice on the
legal basis for a particular military action and recommended policy action based upon the
analysis. See EFF, 739 F.3d at 10 (“[The OLC Opinion] merely examines policy options
available to the FBI.”). That Executive Branch lawyers have advised the President in the past on
his authority to order military action is immaterial. The decisive factor in EFF’s analysis was
not whether the conclusions in the OLC opinion at issue were based on “intricate theories” of
law, see Pl.’s Mem. at 24, or the number of times OLC had advised FBI on the issue in the past,
it was whether OLC had “the authority to establish the ‘working law’ of the FBI.” EFF, 739
F.3d at 8. It did not, and neither do the agency lawyers who drafted withheld documents have
Plaintiff also attempts to distinguish EFF by pointing to the fact that, here, “the Executive
Branch presumably has relied on the agency lawyers’ conclusions . . . in carrying out the
strikes.” Pl.’s Mem. at 25. As EFF explained, however, advice offered for the consideration of
agency decision-makers “is not the law of an agency unless the agency adopts it,” EFF, 739 F.3d
at 8, and adoption occurs only when an “agency itself publicly invoke[s] the reasoning of the
evidence of adoption here, see, e.g., Colborn Decl. ¶ 30, and Plaintiff does not attempt to make a
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showing. Plaintiff only speculates that the President relied on the legal memorandum’s
conclusion, which, even if proven, would be insufficient. See Renegotiation Bd. v. Grumman
Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975) (finding that reports and recommendations do
not lose protection from disclosure under Exemption 5 merely because an agency agrees with a
report’s conclusion).
To come within the scope of the deliberative process privilege, a document must be both
predecisional and deliberative. Coastal States, 617 F.2d at 866. Plaintiff claims that the OLC
outline (Vaughn Index, Doc. 4) and the documents and emails containing proposed press
guidance, talking points, and recommended responses to questions from Congress (id., Docs. 5-
15) are postdecisional because they were “created after the strikes . . . .” Pl.’s Mem. at 25. But
the April 6 strikes are not the “operative decision,” id. at 26, to which these documents relate.
As explained in Defendants’ declarations, the OLC outline was created for use by the
Acting AAG in preparation for an oral briefing to the Attorney General regarding the legal basis
for the April 6 strike and, thus, “the document is predecisional to what the Acting AAG of OLC
would ultimately advise the Attorney General” in that briefing. Colborn Decl. ¶ 24. And, to the
extent he orally conveyed material in the document to the Attorney General that communication
was “predecisional to any ultimate decision the Attorney General would then make in advising
the President.” Id. The documents concerning proposed press guidance, talking points, and
on strategies for engaging with and to their ultimate communications to the press and Congress.
See Castellano Decl. ¶¶ 37, 41-42; Herrington Decl. ¶ 14; Suppl. Stein Decl. ¶ 10. It is not the
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subject matter of these documents that defines whether they are predecisional, but rather their
role in the decision-making process to which they relate. See Judicial Watch, Inc. v. Export-
Import Bank, 108 F. Supp. 2d 19, 35 (D.D.C. 2000) (“To establish that a document is
predecisional, the agency need . . . merely establish what deliberative process is involved, and
the role [] that the documents at issue played in that process.”). Here, the processes for deciding
how to advise the Attorney General and what to say to the media and Congress are separate and
Indeed, Plaintiff’s contention that documents pertaining to past agency actions are not
Enterprise Inst. v. EPA, 12 F. Supp. 3d 100, 118 (D.D.C. 2014). As Judge Boasberg noted,
“[t]he precedent, unsurprisingly, does not support such a broad position.” Id. Numerous cases
have found Exemption 5 to cover briefing materials, talking points, and recommendations for
how to respond to media and congressional inquiries regarding prior agency actions, like those at
Plaintiff attempts to distinguish this case from the weight of authority in this district by
claiming that only “‘drafts’ or ‘discussions’ that are part of a process to formulate a press
strategy” are protected from disclosure, Pl.’s Mem. at 27, but that argument is both factually and
legally incorrect. First, many of the talking points and other guidance documents are “drafts”
and “discussions” reflecting the consultative process through which the recommendations and
advice were developed. See Vaughn Index, Docs. 5-6 (described as “substantially similar but not
identical to the press guidance contained in Doc # 9”); 7 (described as “prior draft version of Doc
# 5-6”); 10 (described as “substantially similar but not identical proposed talking points
contained in Doc # 9”); 13 (described as containing “provisional proposed press guidance”); see
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also Stein Decl. ¶ 21 (describing Doc. 5 as “draft proposed press guidance”); ¶ 22 (describing
Docs. 14-15 as “draft proposed guidance”). In fact, three of the withheld documents are a
guidance and talking points being “updated” throughout the morning following the April 6
strikes. See Vaughn Index, Doc. 11 (email entitled “UPDATED NSC SYRIA GUIDANCE AS
OF 04/07/2017 10:46AM”); 12 (email entitled “NSC SYRIA Update and Reaction Compilation
4/7/2017 11:47AM”); 13 (email entitled “Re: Additional Updated NSC Guidance”). Regardless,
even “final” versions of such materials are subject to the deliberative process privilege to the
extent they consist of recommendations or proposals for the agency’s communications strategy.
See Defs.’ Mem. at 25-26 (citing cases); see also, Am. Civil Liberties Union (“ACLU”) v. U.S.
Dep’t of Homeland Security, 738 F. Supp. 2d at 112; Judicial Watch v. Consumer Fin. Prot.
that these materials provided just such advice. See Castellano Decl. ¶¶ 37-41; Herrington Decl. ¶
Plaintiff’s disbelief that a briefing of the Attorney General after the April 6 strike could
be for any purpose other than “explain[ing] the legal policy upon which the Executive Branch
had already acted” is equally meritless. Pl.’s Mem. at 27. Indeed, the Second Colborn
Declaration clarifies that in addition to preparing the Acting AAG to brief the Attorney General
10
Rather than address these cases, and the numerous other similar decisions cited by Defendants,
Plaintiff instead relies on a single case from the United States District Court for the Southern
District of New York. See Pl’s. Mem. at 28 (citing New York Times, 499 F. Supp. 2d at 514-15).
New York Times has not been followed by judges in this district, see Comm. on Gov’t Oversight
& Reform, U.S. House of Reps. v. Lynch, 156 F. Supp. 3d 101, 112 & n.8 (D.D.C. 2016) (finding
internal DOJ documents regarding how to respond to press and congressional inquiries subject to
deliberative process privilege, notwithstanding plaintiff’s reliance on New York Times), and
conflicts with the weight of authority in this district, see Defs.’ Mem. at 24-26.
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with respect to potential future military action, the OLC outline also “restated aspects of the
predecisional legal advice provided on April 6 by OLC and other government lawyers to the
NSC Legal Adviser” in the legal memorandum, in case it was necessary to remind the Attorney
General about the details of that advice. Second Colborn Decl. ¶ 3. As Plaintiff acknowledges,
“[p]ost–decisional documents properly fall under the deliberative process privilege when they
recount or reflect pre-decisional deliberations.” Judicial Watch, Inc. v. Dep’t of the Treasury,
796 F. Supp. 2d 13, 31 (D.D.C. 2011); see also Citizens for Responsibility & Ethics in Wash. v.
Nor is Plaintiff correct that “[a]t a minimum” Defendants must “identify what decision
the [Acting AAG] was advising the Attorney General about on or after April 7.” Pl.’s Mem. at
27. As the Supreme Court has held, an agency need not “identify a specific decision in
connection with which a memorandum is prepared.” See Access Reports v. DOJ, 926 F.2d 1192,
1196 (D.C. Cir. 1991) (holding that the “exemption does not turn on the ability of an agency to
identify a specific decision in connection with which a memorandum is prepared” because “[a]ny
requirement of a specific decision after the creation of the document would defeat the purpose of
the exemption.” (citation omitted)); EFF v. DOJ, No. 10-641, 2012 WL 3900737, at *12-14
(D.D.C. Sept. 10, 2012) (withheld briefing materials need only have contributed to a decision-
making process, not necessarily a particular decision). Nevertheless, as explained above, the
Colborn Declaration does identify the decision-making processes to which the OLC outline
contributed. See Colborn Decl. ¶¶ 19, 24. It also provides ample facts showing that the OLC
outline—a document created for use by the Acting AAG to prepare himself for a subsequent oral
briefing of his superior, the Attorney General, where he provided legal advice for the Attorney
General’s consideration—is both predecisional and deliberative, and thus protected from
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disclosure by the deliberative process privilege. 11 Id.; see Coastal States, 617 F.2d at 868 (“The
superior official is more likely to be predecisional, while a document moving in the opposite
direction is more likely to contain instructions to staff explaining the reasons for a decision
already made.”).
D. Plaintiff Has Not Established That Defendants Have Waived Their FOIA
Exemption 5 Claims
Plaintiff contends that Defendants have waived all privileges applicable to the withheld
documents through various statements attributed to public officials about the April 6 strikes, as
well as through an unofficial disclosure of a document entitled “Basis for Using Force.” Pl.’s
Mem. at 18-19, 29-30. But Plaintiff fails to meet, let alone cite, the proper standard for finding
that an agency waived a FOIA exemption through a prior public disclosure. Nor has it shown
To prove that waiver has occurred through public disclosure, Plaintiff must show that the
information in the withheld documents (1) is “as specific as the information previously
11
Morley v. CIA, 508 F.3d 1108, 1127 (D.C. Cir. 2007), does not hold to the contrary. In
Morley, the Court of Appeals found that CIA had not demonstrated that the deliberative process
privilege applied to two documents where it provided only “minimal information” to allow the
court to determine if withholding was proper, including “no hint of a final agency policy its
‘predecisional’ material preceded” or even the identities of the author and recipient of one
document, “giving the court little indication about the nature of the records withheld.” Id. As
demonstrated above, the Colborn Declaration provides that precise information.
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released;” (2) “match[es] the information previously disclosed;” and (3) “already ha[s] been
made public through an official and documented disclosure.” Fitzgibbon v. CIA, 911 F.2d 755,
765 (D.C. Cir. 1990); see Afshar v. Dep’t of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983)
(explaining that the burden is on the requester to establish that specific record in public domain
duplicates that being withheld). As the Court of Appeals has held, speculation that information
in the withheld documents must have been disclosed based on the fact that an agency has
publicly discussed related information does not satisfy Plaintiff’s burden. See Assassination
Archives & Research Ctr. v. CIA (“AARC”), 334 F.3d 55, 59-60 (D.C. Cir. 2003) (rejecting
argument that “at least some information” contained in withheld CIA compendium on Cuban
personalities was previously disclosed because CIA had released biographies of several Cuban
operatives; “it may be that some information disclosed . . . is included in the Compendium. But
AARC must show that information duplicates the contents of the Compendium.” (emphasis in
original)).
Speculation is all Plaintiff has offered here. Plaintiff has not shown any nexus between
the withheld information and any official public statements, nor has it demonstrated that the
withheld information exactly matches these public statements. See Davis v. DOJ, 968 F.2d
1276, 1280 (D.C. Cir. 1992) (explaining that to prove waiver the requester must point to
“‘specific’ information identical to that being withheld”); see also Edmonds v. FBI, 272 F. Supp.
2d 35, 49 (D.D.C. 2003) (finding no waiver where information being withheld was not
“identical” to the quoted public statements). Indeed, a close look at the materials Plaintiff
submits reveals only the President’s April 8, 2017 notice to Congress and brief, general
comments attributed to various government officials about the April 6 strikes, some (but not all)
of which address the legal authority for the strike in general terms. See, e.g., Pl.’s Mem., Ex. C
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at 15, ECF No. 26-5 (briefing transcript including five-line response of White House Press
Secretary relating to the President’s Article II authority); id., Ex. E at 3, ECF No. 26-7 (article
ceremony, which did not mention the April 6 strikes); id., Ex. G at 2, ECF No. 26-9 (article
summarizing interview of UN Ambassador in which she does not specifically comment on legal
basis for the strikes). General public discussion by Executive Branch officials about the April 6
strikes and their position that such military action was lawful, however, does not establish waiver
with respect to the specific information or documents withheld.12 See ACLU v. CIA, 109 F.
Supp. 3d 220, 239 (D.D.C. 2015) (rejecting plaintiff’s argument that because the government
officially acknowledged basic facts about its targeted lethal force program and the program’s
legal basis it waived any FOIA exemptions with respect to withheld legal memoranda pertaining
to that subject).
The “Basis for Using Force” document also cannot establish waiver because Plaintiff has
not shown that the document was officially disclosed.13 See Fitzgibbon, 911 F.2d at 765.
Indeed, Plaintiff’s own exhibits show otherwise. Specifically, they show that (a) the document
12
Notably, in its Motion for a Preliminary Injunction, Plaintiff put a decidedly different spin on
many of the same documents on which it now relies to support a waiver argument. For example,
Plaintiff argued that the President’s April 8 letter to Congress (Pl.’s Mem. at Ex. B, ECF No. 26-
4) was not equivalent to a legal memorandum and was “devoid of legal analysis.” Pl.’s Mot. for
a Prelim. Injunction (“PI Mot.”) at 4, ECF No. 3-1. It further attacked the alleged lack of detail
and inconsistency of statements made by the White House Press Secretary, Secretary of State,
and Defense Secretary (Pl.’s Mem. at Exs. C, E-F). See PI Mot. at 4-5. As Plaintiff noted in that
motion, “[t]he Administration has not released any formal or informal legal opinion setting forth
its justification for the Syria strikes,” id. at 4, nor has DOJ “issued any public or official
statement explaining the legal justification for the actions in Syria,” id. at 5. These concessions,
if not fatal to, severely undermine Plaintiff’s waiver claims.
13
The Government has neither confirmed nor denied the authenticity of this document, and does
not do so here.
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was released in a post by a private citizen on a private online forum, (b) the post’s author lacks
personal knowledge about the document’s nature or origin, and (c) the only purported
authentication of the document was provided by a New York Times reporter. See Pl.’s Mem.,
Ex. I at 1, ECF No. 26-11; see also id., Ex. J at 1, ECF No. 26-12. Where disclosure is
unauthorized or a result of a “leak,” courts have ruled that no waiver has occurred. See, e.g.,
Canning v. U.S. Dep’t of State, 134 F. Supp. 3d 490, 503-04 (D.D.C. 2015); Trans-Pac. Policing
Agreement v. U.S. Customs Serv., No. 97-cv-2188, 1998 WL 34016806, at *4 (D.D.C. May 14,
1998); Larouche v. DOJ, No. 90-cv-2753, 1993 WL 388601, at *7 (D.D.C. June 25, 1993).
Relying on the same public sources, Plaintiff argues that Defendants have waived the
attorney-client privilege over the legal memorandum, OLC outline, and recommended
responses to questions from Congress. See Vaughn Index, Docs. 1-4, 14-15. The single case
Plaintiff cites to support its argument, however, is a Second Circuit case involving materially
distinguishable circumstances. See Pl.’s Mem. at 18 (citing New York Times v. DOJ, 756 F.3d
116 (2d Cir. 2014)). In New York Times, the Second Circuit found that DOJ waived the
attorney-client and deliberative process privileges for an OLC Memorandum analyzing the
lawfulness of the targeted killing of suspected terrorists. New York Times, 756 F.3d at 116. The
court’s decision was grounded on three findings. First, New York Times found that Executive
officials had expressly adopted the advice of the OLC Memorandum. See id. at 115 (quoting
CIA Director John Brennan’s congressional testimony that “[t]he Office of Legal Counsel
advice establishes the legal boundaries within which we can operate.”). Second, the
Government officially released a related DOJ White Paper (after it was leaked to the press),
which contained “a detailed analysis of nearly all the legal reasoning contained in the OLC–
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DOD Memorandum.” Id. at 116. Third, the Attorney General publicly acknowledged the close
relationship between the officially disclosed DOJ White Paper and the withheld OLC
Memorandum. Id. Having adopted the legal advice contained in the OLC Memorandum and
officially disclosed a document that provided “nearly all the [same] legal reasoning,” id., New
York Times held that the Government could not publicly invoke the OLC Memorandum and at
None of these factors is present in this matter. As explained above, Plaintiff has not
concerning the lawfulness of the April 6 strikes that expressly adopts, incorporates, or even
references any confidential legal advice contained in the withheld documents at issue here. Nor
is there any evidence in the record that the Government officially disclosed or authenticated the
“Basis for Using Force” document, or publicly acknowledged that it overlaps with confidential
Contrary to Plaintiff’s suggestion, New York Times did not hold that general public
statements by government officials that certain government action is legal is sufficient to waive
the attorney-client privilege. Id. at 114-15 (“not[ing] initially,” in considering the question of
waiver, statements of senior Government officials discussing the lawfulness of targeted killings,
but ultimately finding that the statements established only “the context” for evaluating the
explanation of the rationale or basis for the Executive’s decision to take a particular action,
which would not be privileged, and legal advice received prior to making a decision, which is
privileged. See Colborn Decl. ¶ 8. As at least one judge in this district has recognized, the
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disclosure of a conclusion based on legal advice does not constitute a disclosure of the legal
advice itself. Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 199 (D.D.C. 2013).
In sum, none of the sources cited by Plaintiff establish that Defendants have waived the
presumption of good faith, see SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.
1991), that the legal memorandum, OLC outline, and recommended responses to questions from
Plaintiff’s speculative waiver claims likewise fail to support its request for this Court to
conduct in camera review of the withheld documents. See Pl.’s Mem. at 19, 30. Where, as here,
an agency’s public affidavits “provide specific information sufficient to place the documents
within [an] exemption category,” and “this information is not contradicted in the record,” nor is
there “evidence in the record of agency bad faith,” in camera review of withheld information is
not necessary or appropriate. ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 626 (D.C. Cir. 2011);
see Ctr. for Auto Safety v. EPA, 731 F.2d 16, 20 (D.C. Cir. 1984) (finding a court has broad
Plaintiff’s speculation and disbelief that Executive Branch officials have not disclosed
information in the withheld documents does not warrant in camera review. See Canning, 134 F.
Supp. 3d at 502. As Judge Moss noted in Canning, “[i]n camera review is a ‘last resort,’ not a
fishing expedition. . . . If in camera review were justified solely on the basis of Plaintiffs’
‘doubt,’ it is difficult to imagine any FOIA action in which such review would not be
14
Moreover, in camera review is particularly disfavored in cases, like this one, that involve
highly classified national security information. See Armstrong v. Exec. Office of the President,
97 F.3d 575, 580 (D.C. Cir. 1996); see Gaviria Decl. ¶ 19.
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warranted.” Id. Nor should in camera review be ordered simply on the theory that “it can’t
hurt.” Quinon v. FBI, 86 F.3d 1222, 1228 (D.D.C. 1996) (citation omitted).
Circuit case law in the context of an unauthorized disclosure, like the “Basis for Using Force”
document, and stretching it further to argue that such disclosure waives exemption claims for
allegedly similar documents, proves too much.15 See Pl.’s Mem. at 19 n.16 (citing Brennan Ctr.
for Justice at N.Y. Univ. Sch. Of Law v. DOJ, 697 F.3d 184, 207-08 (2d Cir. 2012); see also id. at
30 (citing ACLU v. DOJ, No. 15-cv-1954, 2016 WL 889739, at *5-6 (S.D.N.Y. Mar. 3, 2016)).
As a legal matter, the “Basis for Using Force” document cannot demonstrate waiver of any
applicable privileges, thus, there is no point in conducting in camera review to determine any
Plaintiff also asserts that Defendants’ Vaughn Index is insufficient because it provides
insufficient detail to justify Defendants’ exemption claims. This argument, however, ignores the
totality of Defendants’ submissions and attempts to impose a higher burden on Defendants than
is required.
As detailed in its opening brief, and further demonstrated herein, the totality of
Defendants’ submissions in support of summary judgment are more than adequate to sustain
their withholdings. The touchstone for the adequacy of an agency’s submissions in a FOIA case
15
Contrary to Plaintiff’s claim, it is clear that the official release of the DOJ White Paper was a
material factor in the New York Times decision. Pl.’s Mem. at 19 n.16; see New York Times, 756
F.3d at 116 (finding that after, inter alia, “the Government makes public a detailed analysis of
nearly all the legal reasoning contained in the OLC–DOD Memorandum, waiver of secrecy and
privilege as to the legal analysis in the Memorandum has occurred” (emphasis added)). Indeed,
finding waiver where unauthorized disclosures are made would only lead to “exacerbation of the
harm created by the leaks.” Murphy v. FBI, 490 F. Supp. 1138, 1142 (D.D.C. 1980).
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is whether the submissions are specific enough to demonstrate “that material withheld is
logically within the domain of the exemption claimed . . . .” King v. DOJ, 830 F.2d 210, 217
(D.C. Cir. 1987); see also Oglesby v. U.S. Dept. of the Army, 79 F.3d 1172, 1178 (D.C. Cir.
1996) (“If an affidavit submitted by an agency contains sufficient detail to forge the ‘logical
connection between the information withheld and the claimed exemption,’. . . then the court will
accord that affidavit substantial weight and consider the agency’s ‘unique insights into what
adverse effects might occur as a result of public disclosure’” (citation omitted)). As courts have
repeatedly noted, “it is the function, not the form, of the [submission] that is important.” Judicial
Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006). In fact, an index is not
required; “an agency may . . . submit other measures in combination with or in lieu of the index
itself,” including supporting declarations, id., “‘so long as they give the reviewing court a
reasonable basis to evaluate the claim of privilege,’” id. (quoting Gallant v. Nat’l Labor
Plaintiff’s contention that “Defendants have left much of their Index blank” and that the
Index’s descriptions are largely conclusory, Pl.’s Mem. at 31, neglects the detailed discussion of
declarations. The Vaughn Index must be read in conjunction with these submissions. For
example, the “to,” “from,” or other “author or recipient data” Plaintiff complains is missing from
the Vaughn Index is expanded upon in the accompanying declarations.16 See e.g., Colborn Decl.
¶ 18, 22 (legal memorandum); id. ¶¶ 19, 24 (OLC outline); Suppl. Stein Decl. ¶ 10
16
Defendants included information in the “To” or “From” columns of the Vaughn Index only
where the documents themselves included such lines. As explained above, however, that does
not mean that further information regarding the author, sender, or recipient of the withheld
documents was not provided elsewhere in Defendants’ submissions in support of summary
judgement, as necessary and appropriate.
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additional contextual and factual details regarding the nature of the documents and the role the
documents played in the various decision-making processes at issue. See, e.g., Castellano Decl.
¶¶ 35-42 (proposed press guidance and talking points). Indeed, the declarations amplify the
descriptions of each of the documents provided in the Vaughn Index. See, e.g., id.; Colborn
Decl. ¶¶ 18-19, 21-25; Herrington Decl. ¶¶ 14-17; Stein Decl. ¶¶ 21-26; Suppl. Stein Decl. ¶¶ 6-
11. Thus, Plaintiff’s criticism of the Vaughn Index as lacking sufficient detail, without
recognizing the detail found in the declarations and supplemental declarations, is without merit.
Moreover, Plaintiff’s claim that Defendants’ Vaughn Index is inadequate because it does
not indicate whether the proposed press guidance, talking points, and recommended responses to
questions from Congress documents were actually “used [] in communicating to the press, the
public, or Congress” is unavailing. Pl.’s Mem. at 32. As explained in their opening brief, and
above, such documents are by their very nature predecisional and deliberative. They were
738 F. Supp. 2d at 112, and provided recommendations and options for the decision-maker (in
this case the Department officials speaking for the agency) that “reflects the essence of internal
deliberations that Exemption 5 was designed to protect,” Sierra Club v. U.S. Dep’t of Interior,
384 F. Supp. 2d 1, 19 (D.D.C. 2004). Plaintiff has not cited any case law that establishes that
mere “use” (whatever that term is intended to encompass) of talking points or other press
guidance documents destroys their predecisional and deliberative nature. In fact, Supreme Court
precedent acknowledges that mere “use” of a document does not strip it of protection under
Exemption 5. See Renegotiation Bd., 421 U.S. at 189 (sustaining withholding of predecisional
reports that were prepared for and designed to be used by agency decision-makers as basis for
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discussion); see also United States v. Philip Morris USA, Inc., 218 F.R.D. 312, 318 (D.D.C.
2003) (in a non-FOIA case, agreeing with the Government that “it is not required to demonstrate
Documents such as talking points and press guidance are, of course, intended to be used
by an agency decision-maker, just as any predecisional, deliberative document is. See Castellano
Decl. ¶ 38 (noting that senior DOJ officials “rely heavily on the creation of . . . press guidance so
that they can be fully informed on the substance of the daily legal and policy issues being
worked on in the Department.”). Nevertheless, numerous courts in this district have found that
records related to proposed guidance for responding to media and congressional inquiries are
protected by the deliberative process privilege, even “final” versions of such documents. See
supra, pp. 19. Moreover, a “use” standard would be too vague and unworkable. See Philip
Morris USA, 218 F.R.D. at 318. If, for example, “use” means that an official’s public statement
“would essentially swallow the deliberative process privilege.” Id. at 319; see also id. at 318
Instead, to the extent Plaintiff claims that the Government has subsequently adopted or
waived information contained in the withheld guidance documents, the burden is not on
Defendants to prove the negative. See, e.g., Sec. Financial Life Ins. Co. v. Dep’t of Treasury,
No. 03-cv-102, 2005 WL 839543, at *7 (D.D.C. Apr. 12, 2005) (“the Department does not carry
the burden of proving that each withheld document was not adopted formally or informally”);
Renegotiation Bd., 421 U.S. at 189; Trans Union LLC v. Fed. Trade Comm’n, 141 F. Supp. 2d
62, 70-71 (D.D.C. 2001)); Davis, 968 F.2d at 1279 (finding that the requester bears the burden of
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demonstrating waiver “because the task of proving the negative-that information has not been
CONCLUSION
For the foregoing reasons, and the reasons set forth in Defendants’ Motion for Summary
Judgment, Defendants respectfully request that the Court grant their motion, deny Plaintiff’s
Cross-Motion for Summary Judgment, and enter summary judgment in Defendants’ favor.
CHAD A. READLER
Principal Deputy Assistant Attorney General
JESSE K. LIU
United States Attorney
ELIZABETH J. SHAPIRO
Deputy Branch Director
31