NEW YORK TIMES COMPANY v. OFFICE OF MANAGEMENT AND BUDGET

REPLY to opposition to motion re Cross MOTION for Summary Judgment

D.D.C.February 28, 2020

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) THE NEW YORK TIMES COMPANY ) AND CHARLIE SAVAGE ) ) Plaintiffs, ) ) v. ) Civil Action No. 1:19-cv-3562 (ABJ) ) OFFICE OF MANAGEMENT AND ) BUDGET ) ) Defendant. ) ____________________________________) SUPPLEMENTAL DECLARATION OF HEATHER V. WALSH I, Heather V. Walsh, make the following declaration based on personal knowledge and information made available to me in the course of my official duties: 1. I am the Deputy General Counsel in the Office of Management and Budget’s (“OMB”) Office of the General Counsel (“OGC”). My background and duties are set forth in my prior declaration of February 10, 2020. 2. The purpose of this declaration is to provide additional information about the application of FOIA Exemption 5, specifically the presidential communications privilege, which OMB asserted in response to Plaintiffs’ FOIA Request. This declaration also provides additional information about OMB’s instruction to Deputy Associate Director for the National Security Division Mark Sandy regarding his participation in a deposition under subpoena before a House Committee. PRESIDENTIAL COMMUNICATIONS PRIVILEGE 3. As stated in my original declaration, OMB withheld in full 21 documents responsive to Plaintiffs’ FOIA Request pursuant to Exemption 5, 5 U.S.C. § 552(b)(5), as subject to both the Case 1:19-cv-03562-ABJ Document 26-1 Filed 02/28/20 Page 1 of 6 2 deliberative process and presidential communications privileges. Prior to making a determination to release or withhold a responsive record, in accordance with 5 U.S.C. § 552(a)(6)(B)(iii)(III) and 5 C.F.R. § 1303.30(c)(1), OMB staff consults with other agencies having a substantial interest in the determination of the request. 4. I can confirm that before asserting Exemption 5 for the presidential communications privilege in connection with the 21 responsive documents in this case, my staff consulted with the White House Counsel’s Office. The consultation included reviewing the facts necessary to determine that the documents contained presidential communications, including the nature of Robert Blair’s position as an Assistant to the President and a Senior Advisor to the Acting Chief of Staff. I conveyed the information that my staff learned in the course of this consultation in my original declaration. 5. This consultation was consistent with OMB’s FOIA regulations and OMB OGC’s long- standing practice of conferring with the White House Counsel’s Office before asserting Exemption 5 for the presidential communications privilege in a FOIA case. NO WAIVER OF PRIVILEGES 6. On November 16, 2019, OMB’s Deputy Associate Director for the National Security Division Mark Sandy participated in a deposition under subpoena before a House Committee. 7. OMB informed Mr. Sandy’s private counsel by letter dated November 15, 2019, that it did not authorize Mr. Sandy to disclose potentially privileged information, including classified information or information subject to executive privilege. A true and accurate copy of the letter is attached hereto as Exhibit A. Case 1:19-cv-03562-ABJ Document 26-1 Filed 02/28/20 Page 2 of 6 3 8. OMB also advised Mr. Sandy’s private counsel that Mr. Sandy should delay his appearance for the deposition until the House of Representative agreed to end its practice of prohibiting agency counsel from the deposition. See Exhibit A. In accordance with 28 U.S.C. § 1746, I hereby declare and affirm under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information, and belief, and that the accompanying exhibit, are true and correct. Executed in Washington, District of Columbia, this 28th day of February, 2020. Heather V. Walsh Deputy General Counsel Office of the General Counsel Office of Management and Budget Case 1:19-cv-03562-ABJ Document 26-1 Filed 02/28/20 Page 3 of 6 EXHIBIT A Case 1:19-cv-03562-ABJ Document 26-1 Filed 02/28/20 Page 4 of 6 Case 1:19-cv-03562-ABJ Document 26-1 Filed 02/28/20 Page 5 of 6 Case 1:19-cv-03562-ABJ Document 26-1 Filed 02/28/20 Page 6 of 6