American Center For Law And Justice v. United States Department of State

MOTION for Summary Judgment and Memorandum of Points and Authorities in Support of Motion, and Statement of Material Facts

D.D.C.May 26, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN CENTER FOR LAW AND ) JUSTICE, ) ) Plaintiff, ) ) vs. ) Case Action No. 16-cv-1355-RC ) UNITED STATES DEPARTMENT OF ) STATE, ) ) Defendant. ) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56, Defendant, the Department of State, respectfully moves for summary judgment on the claims of Plaintiff American Center for Law and Justice, arising under the Freedom of Information Act (“FOIA”). As demonstrated in the accompanying Memorandum and supporting declaration and exhibits, the Department of State has fully satisfied all of its obligations under the statute and is thus entitled to summary judgment. A Statement of Material Facts as to Which There Is No Genuine Issue and a proposed order are also attached. Dated: May 26, 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General MARCIA BERMAN Assistant Branch Director, Federal Programs Branch /s/ Deepthy Kishore DEEPTHY KISHORE Trial Attorney (IL Bar No. 6306338) United States Department of Justice Civil Division, Federal Programs Branch Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 1 of 23 Tel: (202) 616–4448 | Fax: (202) 616–8470 deepthy.c.kishore@usdoj.gov Mailing Address: Post Office Box 883 Washington, DC 20044 Courier Address: 20 Massachusetts Ave., N.W. Washington, D.C. 20001 Counsel for Defendant Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 2 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN CENTER FOR LAW AND ) JUSTICE, ) ) Plaintiff, ) ) vs. ) Case Action No. 16-cv-1355-RC ) UNITED STATES DEPARTMENT OF ) STATE, ) ) Defendant. ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 3 of 23 i TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 1 ARGUMENT .................................................................................................................................. 2 I. STATUTORY STANDARDS ...................................................................................................... 2 II. THE STATE DEPARTMENT PROPERLY INVOKED EXEMPTION 5. ............................................. 4 A. Portions of the Records Are Protected by the Deliberative Process Privilege. ...... 5 B. State Properly Asserted the Presidential Communications Privilege. .................... 8 C. Portions of the Records Are Protected by Attorney–Client Privilege. ................. 10 D. State Processed and Released All Reasonably Segregable Information. .............. 11 CONCLUSION ............................................................................................................................. 12 Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 4 of 23 ii TABLE OF AUTHORITIES CASES ACLU v. Dep’t of Defense, 628 F.3d 612 (D.C. Cir. 2011) .................................................................................................... 2 Appleton v. Food and Drug Admin., 451 F. Supp. 2d 129 (D.D.C. 2006) ............................................................................................ 5 Brayton v. Office of U.S. Trade, Rep., 641 F.3d 521 (D.C. Cir. 2011) ........................................................................................... 3 Brinton v. Dep’t of State, 636 F.2d 600 (D.C. Cir. 1980) .................................................................................................. 11 Cause of Action v. Internal Revenue Serv., 125 F. Supp. 3d 145 (D.D.C. 2015) ............................................................................................ 7 Chemical Mfrs. Ass’n v. Consumer Prod. Safety Comm’n, 600 F. Supp. 114 (D.D.C. 1984) ............................................................................................. 5, 6 CIA v. Sims, 471 U.S. 159 (1985) .................................................................................................................... 2 Citizens for Responsibility and Ethics in Washington v. Dep’t of Labor, 478 F. Supp. 2d 77 (D.D.C. 2007) .............................................................................................. 7 Competitive Enter. Inst. v. United States Envtl. Prot. Agency, 12 F. Supp. 3d 100 (D.D.C. 2014) .............................................................................................. 6 Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003) .................................................................................................... 2 GTE Sylvania, Inc. v. Consumers Union of the U.S., 445 U.S. 375 (1980) .................................................................................................................... 3 In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) ............................................................................................ 4, 10 In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) ............................................................................................ 5, 8, 9 Island Film, S.A. v. Department of the Treasury, 869 F. Supp. 2d 123 (D.D.C. 2012) ............................................................................................ 4 Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 5 of 23 iii John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989) .................................................................................................................... 2 Juarez v. Dep’t of Justice, 518 F.3d 54 (D.C. Cir. 2008) .................................................................................................... 12 Judicial Watch v. Dep’t of State, 875 F. Supp. 2d 37 (D.D.C. 2012) .............................................................................................. 7 Judicial Watch v. Export–Import Bank, 108 F. Supp. 2d 19 (D.D.C. 2000) .............................................................................................. 5 Judicial Watch, Inc. v. Dep’t of Commerce, 337 F. Supp. 2d 146 (D.D.C. 2004) ............................................................................................ 7 Judicial Watch, Inc. v. Dep’t of Homeland Sec., 736 F. Supp. 2d 202 (D.D.C.2010) ............................................................................................. 7 Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108 (D.C. Cir. 2004) .......................................................................................... 4, 8, 9 Judicial Watch, Inc. v. Dep’t of Justice, 65 F. Supp. 3d 50 (D.D.C. 2014) ................................................................................................ 3 Judicial Watch, Inc. v. Dep’t of Treasury, 802 F. Supp. 2d 185 (D.D.C. 2011) ............................................................................................ 5 Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) .................................................................................................................... 3 Larson v. Dep’t of State, 565 F.3d, 857 (D.C. Cir. 2009) ................................................................................................... 3 Nat’l Sec. Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211 (D.D.C. 2005) .......................................................................................... 11 NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) ................................................................................................................ 4, 6 Quarles v. Dep’t of Navy, 893 F.2d 390 (D.C. Cir. 1990) .................................................................................................... 5 Reliant Energy Power Generation, Inc. v. FERC, 520 F. Supp. 2d 194 (D.D.C. 2007) ............................................................................................ 3 Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 6 of 23 iv Rockwell Int’l. Corp. v. Dep’t of Justice, 235 F.3d 598 (D.C. Cir. 2001) .................................................................................................... 4 Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007) ................................................................................................ 11 Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) .................................................................................................. 10 United States v. Nixon, 418 U.S. 683 (1974) .................................................................................................................... 8 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) .................................................................................................... 4 Vaughn v. Rosen, 523 F.2d 1136 (D.C. Cir. 1975) .................................................................................................. 5 Wolfe v. Dep’t of Health and Human Servs., 839 F.2d 768 (D.C. Cir. 1988) .................................................................................................... 5 STATUTES 5 U.S.C. § 552 ................................................................................................................................. 1 5 U.S.C. § 552(a)(4)(B) .................................................................................................................. 3 5 U.S.C. § 552(b) ...................................................................................................................... 3, 11 5 U.S.C. § 552(b)(5) ................................................................................................................... 4, 5 OTHER AUTHORITIES H.R. Rep. No. 89–1497 (1966) ....................................................................................................... 2 Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 7 of 23 INTRODUCTION Plaintiff American Center for Law and Justice (“ACLJ”) filed this suit pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking records from the U.S. Department of State (“State Department” or “State”) relating to a video of a daily press briefing that took place on December 2, 2013. Plaintiff challenges certain partial withholdings of responsive information made by State under Exemption 5 of FOIA. But State has withheld only such information that is protected by the well-recognized deliberative process privilege, presidential communications privilege, or attorney–client privilege. Accordingly, Defendant is entitled to summary judgment in this case. BACKGROUND ACLJ submitted a FOIA request in a letter dated May 12, 2017, seeking certain records relating to a video recording, that was allegedly edited, of a daily press briefing held by the State Department on December 2, 2013. ACLJ filed this action on June 28, 2016, see ECF No. 1, Compl., before the State Department had completed its search for documents responsive to the FOIA request or released any documents. Between November 8, 2016, and February 13, 2017, the State Department produced non-exempt, responsive documents to ACLJ on a rolling basis, releasing a total of 69 documents, 34 of which ultimately were released in full, and 35 of which were released with redactions. On April 21, 2017, Plaintiff provided Defendant with a “complete list of [its] objections concerning Defendant’s withholdings under FOIA,” in which Plaintiff clarified that it is only challenging certain materials withheld under Exemption 5. See Exhibit A, Letter from Abigail A. Southerland, Senior Litigation Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 8 of 23 2 Counsel (dated Apr. 21, 2017). Accordingly, this motion is limited to the challenged withholdings. See ECF No. 25, Jt. Status Report, at ¶¶ 2–3 (filed Apr. 28, 2017).1 ARGUMENT THE STATE DEPARTMENT HAS COMPLIED WITH FOIA AND IS ENTITLED TO SUMMARY JUDGMENT I. STATUTORY STANDARDS FOIA’s “basic purpose” reflects a “general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (internal quotations omitted). “However, Congress has recognized that ‘public disclosure is not always in the public interest.”’ ACLU v. Dep’t of Defense, 628 F.3d 612, 618 (D.C. Cir. 2011) (quoting CIA v. Sims, 471 U.S. 159, 166–67 (1985)). Accordingly, in passing FOIA, “Congress sought to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy.” John Doe Agency, 493 U.S. at 152 (quoting H.R. Rep. No. 89– 1497, at 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2423); see Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck by Congress between the public’s right to know and the government’s legitimate interest in keeping certain information confidential”). 1 Plaintiff’s list of objections did not include any objection to the adequacy of State’s search for documents responsive to Plaintiff’s FOIA request. It is therefore State’s understanding that Plaintiff is not challenging the adequacy of the search, and for that reason, State has not submitted a declaration in support of the adequacy of its search. If Plaintiff nonetheless challenges the adequacy of the search in its opposition, State would seek to submit a search declaration on reply. Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 9 of 23 3 FOIA mandates disclosure of agency records unless the requested information falls within one of nine enumerated exemptions. See 5 U.S.C. § 552(b). A district court only has “jurisdiction . . . to compel the production of agency documents that are ‘improperly withheld.”’ Judicial Watch, Inc. v. Dep’t of Justice, 65 F. Supp. 3d 50, 54 (D.D.C. 2014) (quoting GTE Sylvania, Inc. v. Consumers Union of the U.S., 445 U.S. 375, 387 (1980)); see also 5 U.S.C. § 552(a)(4)(B) (providing the district court with jurisdiction only “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant”); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (“Under 5 U.S.C. § 552(a)(4)(B)[,] federal jurisdiction is dependent upon a showing that an agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.”’). Most FOIA actions are typically and appropriately resolved on summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011); Reliant Energy Power Generation, Inc. v. FERC, 520 F. Supp. 2d 194, 200 (D.D.C. 2007). In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations when they “describe the justifications for nondisclosure with reasonably specific detail, 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) (internal quotations omitted). Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 10 of 23 4 II. THE STATE DEPARTMENT PROPERLY INVOKED EXEMPTION 5. Exemption 5 exempts from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). Records are exempt from disclosure if they would be “normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Exemption 5 thus incorporates the privileges that are available to an agency in civil litigation, including the deliberative process privilege, Rockwell Int’l. Corp. v. Dep’t of Justice, 235 F.3d 598, 601 (D.C. Cir. 2001), presidential communications privilege, Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004), and attorney–client privilege, see In re Lindsey, 158 F.3d 1263, 1268 (D.C. Cir. 1998). As demonstrated by the accompanying declaration by Eric F. Stein at State, see Exhibit B (“Stein Decl.”), and index incorporated into the Stein Declaration,2 see Exhibit C (“Index”), State has met its burden of establishing that its withholdings under Exemption 5 were appropriate pursuant to each of these privileges. The categories of withheld information, and the corresponding bases for protection, are discussed below.3 2 This index, “setting forth . . . specific justifications” for the agency’s withholdings, is “commonly termed a Vaughn index” in reference to the D.C. Circuit’s decision in Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973). Island Film, S.A. v. Department of the Treasury, 869 F. Supp. 2d 123, 129 n.1 (D.D.C. 2012). For convenience of electronic access, the Index, which is incorporated as Exhibit 1 to the Stein Declaration, has also been filed as a separate exhibit to this motion, Exhibit C. 3 The Index contains an entry for each partially withheld document released to Plaintiff, describing the exempt information and explaining the bases for asserting exemptions in those documents. This brief will cite the Index’s descriptions using the convention “Index, Doc. No. C ____,” where “C ___” refers to a document identifier assigned to each document released as part of State’s FOIA review process, and imprinted as a header and footer on every released document. Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 11 of 23 5 A. Portions of the Records Are Protected by the Deliberative Process Privilege Under Exemption 5. A record must satisfy three conditions to qualify for the deliberative process privilege. It must be “inter-agency or intra-agency,” 5 U.S.C. § 552(b)(5); it must be “predecisional,” In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997); and it must be “deliberative.” Id. “To establish that a document is predecisional, the agency need not point to an agency final decision, but merely establish what deliberative process is involved, and the role that the documents at issue played in that process.” Judicial Watch v. Export-Import Bank, 108 F. Supp. 2d 19, 35 (D.D.C. 2000) (citation omitted). Thus, even factual material is exempt under Exemption 5 if “disclosure would ‘expose an agency’s decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.”’ Judicial Watch, Inc. v. Dep’t of Treasury, 802 F. Supp. 2d 185, 198 (D.D.C. 2011) (emphasis added) (quoting Quarles v. Dep’t of Navy, 893 F.2d 390, 392 (D.C. Cir. 1990)). Moreover, a document created after the decision at issue can still be “predecisional” if it memorialized protected predecisional, deliberative information. See Appleton v. Food and Drug Admin., 451 F. Supp. 2d 129, 144 n.9 (D.D.C. 2006). A record is “deliberative” when “it reflects the give-and-take of the consultative process.” Wolfe v. Dep’t of Health and Human Servs., 839 F.2d 768, 775 (D.C. Cir. 1988) (citation and internal quotation marks omitted) (en banc). “There should be considerable deference to the [agency’s] judgment as to what constitutes . . . ‘part of the agency give-and-take—of the deliberative process—by which the decision itself is made.’” Chemical Mfrs. Ass’n v. Consumer Prod. Safety Comm’n, 600 F. Supp. 114, 118 (D.D.C. 1984) (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)). The Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 12 of 23 6 agency is best situated “to know what confidentiality is needed ‘to prevent injury to the quality of agency decisions.’” Chemical Mfrs., 600 F. Supp. at 118 (quoting NLRB, 421 U.S. at 151). Here, State has met its burden of establishing that its withholdings pursuant to the deliberative process privilege were appropriate. State partially redacted certain emails among State officials, and certain emails between State officials and NSC officials or other officials at the White House, to withhold communications on how to address questions concerning State’s actions taken with respect to the video, as well as a discussion about how to respond to press coverage of State’s publication of the video. In addition, State partially redacted documents reflecting deliberations about “talking points,” including in some instances drafts of proposed talking points, see Index, Doc. Nos. C06206248, C06219271, C06219312, C06219467, C06219550, C06193231, C06197857, to withhold communications about how to respond to media inquiries regarding State’s prior actions with respect to the video. These materials are deliberative and predecisional in that they comprise drafts, proposals, subjective opinions, and “ideas and recommendations,” Stein Decl. ¶ 16, that were ‘“generated as part of a continuous process of agency decision making”—that is, “how to respond to ongoing inquiries” concerning State’s actions with respect to the video’s publication or editing, Competitive Enter. Inst. v. United States Envtl. Prot. Agency, 12 F. Supp. 3d 100, 118 (D.D.C. 2014) (citation and quotation omitted), before State had finalized its media response or made a determination about what happened to the video. See Competitive Enter. Inst., 12 F. Supp. 3d at 118 (“Exemption 5 has indeed been found to cover agency deliberations about how to respond to media inquiries” as Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 13 of 23 7 long as the deliberations are predecisional.”) (collecting cases)); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (Exemption 5 “covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency”). Indeed, courts have held that Exemption 5 covers agency deliberations about how to respond to media inquiries regarding prior agency actions, see Judicial Watch, Inc. v. Dep’t of Homeland Sec., 736 F. Supp. 2d 202, 208 (D.D.C.2010); discussions about press coverage of existing agency policies, see Citizens for Responsibility and Ethics in Washington v. Dep’t of Labor, 478 F. Supp. 2d 77, 83 (D.D.C. 2007); and recommended talking points about how to answer questions regarding duties of agency employees. See Judicial Watch, Inc. v. Dep't of Commerce, 337 F. Supp. 2d 146, 174 (D.D.C. 2004). Further, the withheld materials are deliberative in that they reflect consultations within the agency—or in some instances, among three U.S. government entities—to address ongoing inquiries concerning State’s publication or editing of the prior press briefing video, leading up to a governmental decision about State’s public position with respect to the issues raised in these inquiries. See Cause of Action v. Internal Revenue Serv., 125 F. Supp. 3d 145, 160–61 (D.D.C. 2015); see also Stein Decl. ¶ 16 (attesting that “the withheld information reflects the internal exchange of ideas and recommendations that occurs when government officials are formulating a strategy for official action,” and “[i]t is PA’s standard practice to consult with State employees with Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 14 of 23 8 knowledge of the subject matter of a press inquiry and agency actions at issue before commenting on prior and ongoing agency actions”).4 State properly withheld portions of these documents under Exemption 5. The release of that information would “reasonably be expected to chill the open and frank exchange of comments and opinions” within State. Stein Decl. ¶ 16. Here, such “candid internal discussions and the expression of recommendations and judgments,” id., must be permitted to proceed uninhibited. B. State Properly Asserted the Presidential Communications Privilege. The Supreme Court has recognized a “presumptive privilege for Presidential communications” founded on the “President’s generalized interest in confidentiality,” United States v. Nixon, 418 U.S. 683, 708 (1974), and the D.C. Circuit has held that privilege to fall within the ambit of those covered by Exemption 5 of FOIA. See Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004). The presidential communications privilege is “necessary to guarantee the candor of presidential advisers and to provide ‘[a] President and those who assist him . . . [with] free[dom] to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” In re Sealed Case, 121 F.3d 729, 743 (D.C. Cir. 1997) (quoting Nixon, 418 U.S. at 708). 4 The assertion of the deliberative process privilege also extends to decisionmaking about how to communicate with other Government agencies, and thus covers State’s emails with the NSC or White House insofar as they reflect interagency processes concerning the formulation of press strategies and media responses. Cf. Judicial Watch v. Dep’t of State, 875 F. Supp. 2d 37, 45 (D.D.C. 2012) (materials concerning inter-agency discussions, including statements about process and whether officials “will defer to other agencies for final determinations” properly withheld pursuant to deliberative process privilege and Exemption 5). Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 15 of 23 9 The presidential communications privilege is “closely affiliated” with the deliberative process privilege. In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997). However, unlike the deliberative process privilege, which applies to decisionmaking of executive branch officials generally, the presidential communications privilege applies specifically to decisionmaking of the President. Id. at 745. Although the privilege is based on Presidential decisionmaking, it extends “beyond communications directly involving and documents actually viewed by the President.” Judicial Watch, 365 F.3d at 1114 (citation omitted). In particular, it shields communications and documents authored by, or solicited and received by, the President’s immediate advisors—or members of their staff—in the course of preparing advice for the President. In re Sealed Case, 121 F.3d at 752. The privilege thus protects in its entirety “the President’s personal decision-making process,” including the gathering of information by White House staff that is relevant to that process. See Judicial Watch, 365 F.3d at 1118. This extension of the privilege to advisors who have “broad and significant responsibility for investigating and formulating advice to be given to the President” reflects “the need for confidentiality to ensure that presidential decision-making is of the highest caliber, informed by honest advice and full knowledge.” Judicial Watch, 365 F.3d at 1116 (quoting In re Sealed Case, 121 F.3d at 752). In this case, State withheld information from four documents containing email exchanges between Department officials and senior presidential advisors “with 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 concerns.” Stein Decl. ¶ 18. The material Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 16 of 23 10 that State withheld consists of communications that were authored by or solicited and received by senior presidential advisors and staff, and which were part of the process that informed the President’s determinations with respect to foreign policy matters implicating national security concerns. Id. The disclosure of the withheld information “would reveal the process by which the President receives national security advice from close advisors.” Stein Decl. ¶ 18. Indeed, portions of the withheld information explicitly reference meetings involving senior presidential advisors and White House officials, as well as communications among presidential advisors. See Index, Doc. Nos. C06190112, C06219552, C06197841, C06219550. The emails reflecting communications among senior White House officials and presidential advisors preparing advice for the President on sensitive matters—several of which are also subject to protection under the deliberative process privilege, see supra at 6–8; see also Index, Doc Nos. C06219552, C06197841, C06219467, C06219548, C06219550—thus fall squarely within the scope of the presidential communications privilege. C. Portions of the Records Are Protected by Attorney–Client Privilege. The D.C. Circuit has long recognized that “Exemption 5 protects, as a general rule, materials which would be protected under the attorney-client privilege.” In re Lindsey, 158 F.3d 1263, 1268 (D.C. Cir. 1998). The attorney–client privilege applies to communications between a lawyer and a client, in which the attorney was “acting as a lawyer and the communication was made for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding,” In re Lindsey, 158 F.3d at 1270, and extends to information provided by the client to the Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 17 of 23 11 attorney as well as advice given by the attorney. See Brinton v. Dep’t of State, 636 F.2d 600, 605 (D.C. Cir. 1980). “In the governmental context, the ‘client’ may be the agency and the attorney may be an agency lawyer.” Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997). State properly invoked Exemption 5 to withhold materials pursuant to the attorney–client privilege. State has asserted this privilege over portions of two documents reflecting confidential communications from State Department officials to State Department attorneys for the purpose of obtaining legal advice, see Stein Decl. ¶ 17, in accordance with the legal standards for that privilege. See Brinton, 636 F.2d at 605. The Department confirms that it has maintained the confidentiality of these attorney–client communications. Stein Decl. ¶ 17. Public disclosure of the withheld information would seriously disrupt open dialogue between State officials and their attorneys and deny government officials of the full and candid advice of their counsel. Stein Decl. ¶ 17. Therefore, these communications are properly withheld in part under Exemption 5 and the attorney–client privilege. D. State Processed and Released All Reasonably Segregable Information. FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). But an agency need not disclose records in which the non-exempt information remaining is meaningless. See Nat’l Sec. Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211, 220–21 (D.D.C. 2005). “Agencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 18 of 23 12 2007). And a court “may rely on government affidavits that show with reasonable specificity why documents withheld pursuant to a valid exemption cannot be further segregated.” Juarez v. Dep’t of Justice, 518 F.3d 54, 61 (D.C. Cir. 2008). Here, State “conducted a careful, line-by-line review of each document withheld in part and has implemented segregation when possible,” Stein Decl. ¶ 19, and “determined that no other segregation of meaningful information in the documents responsive to ACLJ’s request could be made without disclosing information warranting protection under the law.” Id. There are no facts rebutting the presumption that State complied with its segregability obligations. Indeed, State withheld no documents in full. Rather, it released all documents responsive to ACLJ’s request with specific redactions made to certain documents containing exempt information, thereby demonstrating that State conducted a segregability review to release all non-exempt information. CONCLUSION For the foregoing reasons, the Court should grant summary judgment to Defendant as to all of Plaintiff’s claims, and the Complaint should be dismissed with prejudice. Dated: May 26, 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General MARCIA BERMAN Assistant Branch Director, Federal Programs Branch /s/ Deepthy Kishore DEEPTHY KISHORE Trial Attorney (IL Bar No. 6306338) United States Department of Justice Civil Division, Federal Programs Branch Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 19 of 23 13 Tel: (202) 616–4448 Fax: (202) 616–8470 deepthy.c.kishore@usdoj.gov Mailing Address: Post Office Box 883 Washington, DC 20044 Courier Address: 20 Massachusetts Ave., N.W. Washington, D.C. 20001 Counsel for Defendant Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 20 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN CENTER FOR LAW AND ) JUSTICE, ) ) Plaintiff, ) ) vs. ) Case Action No. 16-cv-1355-RC ) UNITED STATES DEPARTMENT OF ) STATE, ) ) Defendant. ) STATEMENT OF MATERIAL FACTS IN SUPPORT OF DEPARTMENT OF STATE’S MOTION FOR SUMMARY JUDGMENT Pursuant to Local Civil Rule 7(h)(1), the following is a statement of material facts as to which the movant, U.S. Department of State (“State”), contends there is no genuine issue: 1. The American Center for Law and Justice (“ACLJ”) submitted a Freedom of Information Act (“FOIA”) request to State, dated May 12, 2017 (the “FOIA request”). Declaration of Eric F. Stein (“Stein Decl.”) ¶ 4 & Stein Decl. Ex. 2. 2. In the FOIA request, ACLJ sought records pertaining to “the editing, alteration and/or manipulation of the official U.S. Department of State Daily Press Briefing – Dec. 2, 2013, video record.” Stein Decl. Ex. 2. 3. ACLJ filed its Complaint on June 28, 2016, see ECF No. 1, before the State Department had completed its search for records responsive to the FOIA request, or released any records in response to the request. Stein Decl. ¶ 6. 4. ACLJ received all non-exempt records responsive to the FOIA request between November 8, 2016, and February 1, 2017. Stein Decl. ¶¶ 7–10. Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 21 of 23 2 5. On March 30, 2017, and on May 26, 2017, State made a discretionary release of certain material that had been withheld from documents that were previously released to ACLJ. Stein Decl. ¶¶ 11–12. 6. ACLJ has received a total of 69 documents in response to the FOIA request, 34 of which State released in full, and 35 of which were released with redactions. Stein Decl. ¶¶ 7–12. 7. State did not withhold in full any documents that are responsive to the FOIA request. Stein Decl. ¶¶ 7–10. 8. In this lawsuit, ACLJ challenges only certain partial withholdings by State pursuant to Exemption 5 in response to the FOIA request. Stein Decl. ¶ 13. 9. State submitted a declaration that describes the basis for each of its partial withholdings of responsive documents that ACLJ challenges in this case, Stein Decl. ¶ 3, and the declaration is accompanied by a Vaughn index that describes the basis for each of these partial withholdings under Exemption 5. Stein Decl. ¶ 3 & Stein Decl. Ex. 1. 10. State’s declaration and Vaughn index adequately justify these partial withholdings. Stein Decl. ¶ 3. In particular: (a) State withheld certain information in sixteen documents pursuant to Exemption 5’s deliberative process privilege. Stein Decl. ¶ 16 & Stein Decl. Ex. 1. (b) State withheld certain information in two documents pursuant to Exemption 5’s attorney–client privilege. Stein Decl. ¶ 17 & Stein Decl. Ex. 1. (c) State withheld certain information in four documents pursuant to Exemption 5’s presidential communications privilege. Stein Decl. ¶ 18 & Stein Decl. Ex. 1. Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 22 of 23 3 11. State released all reasonably segregable non-exempt information in its response to the FOIA request. Stein Decl. ¶ 18. Dated: May 26, 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General MARCIA BERMAN Assistant Branch Director, Federal Programs Branch /s/ Deepthy Kishore DEEPTHY KISHORE Trial Attorney (IL Bar No. 6306338) United States Department of Justice Civil Division, Federal Programs Branch Tel: (202) 616–4448 Fax: (202) 616–8470 deepthy.c.kishore@usdoj.gov Mailing Address: Post Office Box 883 Washington, DC 20044 Courier Address: 20 Massachusetts Ave., N.W. Washington, D.C. 20001 Counsel for Defendant Case 1:16-cv-01355-RC Document 26 Filed 05/26/17 Page 23 of 23 1 April 21, 2017 VIA ELECTRONIC MAIL Deepthy Kishore Trial Attorney U.S. Department of Justice Civil Division | Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20530 Tel: (202) 616-4448 | Fax: (202) 616-8460 deepthy.c.kishore@usdoj.gov Re: Review of Vaughn Index in Case No. 1:16-cv-1355 Dear Deepthy, In accordance with our Joint Status Report (Dkt. # 27), and the Court’s Minute Order of Monday, April 17, 2017, this letter shall serve as Plaintiff’s complete list of objections concerning the information withheld by the State Department. As we explained in our letter dated April 6, 2017, we maintain an objection to all withholdings made by Defendant pursuant to FOIA Exemption 5 and the deliberative process privilege. Defendant has failed to meet its burden to prove that the withholdings made in these documents1 are both pre-decisional and deliberative. Also as previously explained, should Defendant be willing to provide a complete Vaughn Index, including the additional information Plaintiff has requested, it is possible that some of those objections might be eliminated. Absent such information, however, such elimination of objections is not possible. In addition, we maintain an objection to the withholdings made in all documents under Doc. No. 8 of the Vaughn Index (CO6193265 and CO6199642) pursuant to FOIA Exemption 5 and the attorney-client privilege. 1 The documents for which we maintain this objection include all documents listed in the Vaughn Index dated March 29, 2017, and listed under Doc. Nos. 2, 4-6, 8-9, 11-12, and 14-15. Case 1:16-cv-01355-RC Document 26-1 Filed 05/26/17 Page 1 of 2 2 Should you have any questions, or wish to discuss the matter further, please feel free to contact me directly. Also, in light of the Court’s Minute Order directing the filing of a Joint Status Report, to include a proposed briefing schedule, by next Friday, April 28, 2017, we will provide you a draft report early next week to ensure ample time for finalizing and filing. Sincerely, Abigail A. Southerland Senior Litigation Counsel Cc: Carly Gammill Ben Sisney Andy Ekonomou Case 1:16-cv-01355-RC Document 26-1 Filed 05/26/17 Page 2 of 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 1 of 39 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 2 of 39 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 3 of 39 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 4 of 39 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 5 of 39 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 6 of 39 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 7 of 39 ACLJ v. Dep’t of State No. 1:16-cv-01355 Vaughn Index American Center for Law and Justice v. Department of State (D.D.C. 16-cv-01355) Vaughn Index for F-2016-05079 May 26, 2017 Doc. No. Doc. Type Pages Date / Date Range Author(s) / Recipient(s) Review Result Exemptions (1) C06189797 Email 3 05/10/2016 DOS Officials RIP (b)(5) Deliberative Process Privilege (“DPP”) DESCRIPTION: This document is an intra-agency e-mail exchange between officials in the Bureau of Public Affairs (“PA”), regarding a news report that the Department’s December 2, 2013 daily press briefing video was edited. The Department withheld the officials’ opinions and speculation about what may have happened to the daily press briefing video under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege. Release of this material, which is pre-decisional and deliberative with respect to the Department’s determination of what happened to the daily press briefing video on December 2, 2013, and contains the authors’ opinions regarding that determination, could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when government officials are reaching a decision on an important subject. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department conducted a thorough review of the document and determined that there is no additional meaningful, non- exempt information that may be reasonably segregated and released. (2) C06190112 Email 2 12/04-12/05/2013 DOS Officials, National Security Council (“NSC”) Official, White House Official, Reporter RIP (b)(5) Presidential Communications Privilege (“PCP”) DESCRIPTION: This document is an e-mail exchange between a reporter and an NSC official, and an inter-agency e-mail exchange between a Department official and an NSC official about how to respond to the reporter’s inquiry and other questions on the same topic. The Department Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 8 of 39 ACLJ v. Dep’t of State No. 1:16-cv-01355 Vaughn Index Doc. No. Doc. Type Pages Date / Date Range Author(s) / Recipient(s) Review Result Exemptions withheld part of the inter-agency portion of this e-mail exchange under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the presidential communications privilege. The withheld information includes information about the subject and timing of a meeting, and the decision reached in that meeting. Release of this information would reveal the process by which the President receives advice from close advisors regarding sensitive national security matters. The Department conducted a thorough review of the document and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. (3) C06193231 C06197855 C06197857 C06201418 C06206248 Email 27 24 25 24 31 05/09/2016 05/09/2016 05/09/2016 05/09/2016 05/09-05/10/2016 DOS Officials, Reporter RIP (b)(5) DPP DESCRIPTION: These documents contain an inquiry from a reporter about the editing of the December 2, 2013 press briefing video to which an alleged transcript from the briefing is attached, and subsequent intra-agency deliberations about the inquiry and how the Department should respond to it. Documents C06193231, C06197857 and C06206248 include proposed talking points for responding to the press inquiry, and officials’ recommended edits to those talking points. The Department withheld these documents in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege. Release of the withheld material, which is pre-decisional and deliberative with respect to the Department’s determination of what happened to the video and its response to the press, and contains the authors’ personal opinions, thoughts, speculation, and recommendations regarding those decisions, could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when government officials are making decisions and crafting public responses on a sensitive subject. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department conducted a thorough review of the documents and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. (4) C06219552 Email 37 05/09/2016 DOS Officials, NSC Official, Reporter RIP (b)(5) DPP, PCP DESCRIPTION: These documents contain an inquiry from a reporter about the editing of the December 2, 2013 press briefing video to which an alleged transcript from the briefing is attached, and subsequent inter-agency deliberations about the inquiry and how the Department should respond to it. The Department withheld these documents in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege and the presidential communications privilege. Release of the withheld material, which is pre-decisional and deliberative with respect to the Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 9 of 39 ACLJ v. Dep’t of State No. 1:16-cv-01355 Vaughn Index Doc. No. Doc. Type Pages Date / Date Range Author(s) / Recipient(s) Review Result Exemptions Department’s determination of what happened to the video, and contains the authors’ personal opinions, thoughts, speculation, and recommendations regarding that determination, could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when government officials are making decisions and crafting public responses on a sensitive subject. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The withheld information contains communications by a presidential adviser and references to communications between presidential advisers. Release of this information would reveal information about the advice the President receives from close advisers regarding sensitive matters. The Department conducted a thorough review of the documents and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. (5) C06193265 C06199642 Email 1 3 05/09-07/29/2016 12/03/2013- 06/29/2016 DOS Officials RIP (b)(5) Attorney- Client Privilege (“ACP”) DESCRIPTION: These documents are e-mail communications from Department officials to Department attorneys containing facts about the processing of the video of the December 2, 2013 daily press briefing. The Department withheld this information in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the attorney-client privilege in order to protect communications from a client to a Department attorney for the purpose of seeking legal advice for the Department. The withheld information reflects communications from Department officials to Department attorneys for the purpose of obtaining legal advice. The communication was intended to be kept confidential and that confidentiality has been maintained. The Department conducted a thorough review of the documents and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. (6) C06197841 Email 1 12/03/2013 DOS Officials, NSC Official, White House Official RIP (b)(5) DPP, PCP DESCRIPTION: This document is an inter-agency exchange between a Department official and a White House official that contains deliberations, including questions and recommendations, about press strategy and points to be made to the press on topics related to Iran. The Department withheld this document in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege and the presidential communications privilege. Release of this material, which is pre-decisional and deliberative with respect to the Department’s press strategy and communications to the press, and contains the authors’ personal opinions and recommendations regarding those decisions, could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when government officials Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 10 of 39 ACLJ v. Dep’t of State No. 1:16-cv-01355 Vaughn Index Doc. No. Doc. Type Pages Date / Date Range Author(s) / Recipient(s) Review Result Exemptions are making decisions. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The withheld information contains communications with a presidential adviser and information about a meeting with White House officials. Release of this information would reveal information about the advice the President receives from close advisers regarding sensitive matters and would reveal the process by which the President receives such advice. The Department conducted a thorough review of the document and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. (7) C06224640 Email 1 05/09/2016 DOS Officials RIP (b)(5) DPP DESCRIPTION: This document is an intra-agency e-mail containing Department discussion of a response to a press inquiry regarding the December 2, 2013 daily press briefing video, and it includes recommendations regarding that response. The Department withheld this document in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege. Release of this material, which is pre-decisional and deliberative with respect to the Department’s response to the press, and contains the author’s personal opinions and preliminary recommendations regarding that response, could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when government officials are crafting press guidance on a sensitive subject. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department conducted a thorough review of the document and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. (8) C06219271 C06219312 Press Guidance 5 14 05/10/2016 05/11/2016 DOS RIP (b)(5) DPP DESCRIPTION: These documents contain press guidance prepared by the Bureau of Near Eastern Affairs (“NEA”) for, and in advance of, the Department’s May 10, 2016 and May 11, 2016 press briefings. The documents contain anticipated questions on a variety of topics and proposed responses in bullet-point form. The Department withheld these documents in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege. Release of these documents, which are pre-decisional and deliberative with respect to a final decision on communications to the press, could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when Department officials are crafting press guidance on a sensitive issue. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The documents are internal Department documents that were not disseminated outside the government. The Department conducted a thorough review of the documents and determined that there is no meaningful, Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 11 of 39 ACLJ v. Dep’t of State No. 1:16-cv-01355 Vaughn Index Doc. No. Doc. Type Pages Date / Date Range Author(s) / Recipient(s) Review Result Exemptions non-exempt information that may be reasonably segregated and released. (9) C06219322 C06219456 Email Tasking List 1 2 05/11/2016 05/11/2016 DOS Officials DOS RIP (b)(5) DPP DESCRIPTION: These intra-agency documents contain Department deliberations about PA’s collection of talking points from Department bureaus for use by PA at the daily press briefing. Document C06219322 includes information about obtaining clearance on the draft talking points and Document C06219456 is a draft list of topics on which PA was seeking talking points. The Department withheld these documents in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege. Release of this material, which is pre-decisional and deliberative with respect to the Department’s process of obtaining press guidance and topics on which guidance was sought could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when government officials are making decisions. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department conducted a thorough review of the documents and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. (10) C06219467 C06219548 C06219550 Email 2 2 3 05/10/2016 05/10/2016 05/10/2016 DOS Officials, NSC Official RIP (b)(5) DPP, PCP DESCRIPTION: These documents are inter-agency and intra-agency e-mail exchanges containing deliberations about the content of talking points provided by the Department’s Office of Iranian Affairs to PA for use in addressing news stories concerning the editing of the December 2, 2013 daily press briefing video. Documents C06219467 and C06219550 contain anticipated questions and draft answers in bullet-point form. Document C06219548 is fully subsumed in Document C06219550. The Department withheld the three documents in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege and withheld Document C06219550 in part under the presidential communications privilege. Release of this material, which is pre-decisional and deliberative with respect to guidance provided by a Department component to PA for use in communications to the press and contains the authors’ personal opinions and preliminary recommendations regarding that guidance, could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when government officials are developing a response on a sensitive subject. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The withheld information in Document C06219550 also contains communications with a presidential adviser. Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 12 of 39 ACLJ v. Dep’t of State No. 1:16-cv-01355 Vaughn Index Doc. No. Doc. Type Pages Date / Date Range Author(s) / Recipient(s) Review Result Exemptions Release of this information would reveal information about the advice received by the President from close advisers on sensitive national security matters and the process by which the President receives such advice. The Department conducted a thorough review of the documents and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 13 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 14 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 15 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 16 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 17 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 18 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 19 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 20 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 21 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 22 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 23 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 24 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 25 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 26 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 27 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 28 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 29 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 30 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 31 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 2 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 32 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 3 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 33 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 4 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 34 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 5 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 35 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 6 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 36 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 7 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 37 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 8 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 38 of 39 STEIN DECLARATION Civil Action No. 1:16-cv-01355-RC Exhibit 9 Case 1:16-cv-01355-RC Document 26-2 Filed 05/26/17 Page 39 of 39 ACLJ v. Dep’t of State No. 1:16-cv-01355 Vaughn Index American Center for Law and Justice v. Department of State (D.D.C. 16-cv-01355) Vaughn Index for F-2016-05079 May 26, 2017 Doc. No. Doc. Type Pages Date / Date Range Author(s) / Recipient(s) Review Result Exemptions (1) C06189797 Email 3 05/10/2016 DOS Officials RIP (b)(5) Deliberative Process Privilege (“DPP”) DESCRIPTION: This document is an intra-agency e-mail exchange between officials in the Bureau of Public Affairs (“PA”), regarding a news report that the Department’s December 2, 2013 daily press briefing video was edited. The Department withheld the officials’ opinions and speculation about what may have happened to the daily press briefing video under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege. Release of this material, which is pre-decisional and deliberative with respect to the Department’s determination of what happened to the daily press briefing video on December 2, 2013, and contains the authors’ opinions regarding that determination, could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when government officials are reaching a decision on an important subject. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department conducted a thorough review of the document and determined that there is no additional meaningful, non- exempt information that may be reasonably segregated and released. (2) C06190112 Email 2 12/04-12/05/2013 DOS Officials, National Security Council (“NSC”) Official, White House Official, Reporter RIP (b)(5) Presidential Communications Privilege (“PCP”) DESCRIPTION: This document is an e-mail exchange between a reporter and an NSC official, and an inter-agency e-mail exchange between a Department official and an NSC official about how to respond to the reporter’s inquiry and other questions on the same topic. The Department Case 1:16-cv-01355-RC Document 26-3 Filed 05/26/17 Page 1 of 6 ACLJ v. Dep’t of State No. 1:16-cv-01355 Vaughn Index Doc. No. Doc. Type Pages Date / Date Range Author(s) / Recipient(s) Review Result Exemptions withheld part of the inter-agency portion of this e-mail exchange under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the presidential communications privilege. The withheld information includes information about the subject and timing of a meeting, and the decision reached in that meeting. Release of this information would reveal the process by which the President receives advice from close advisors regarding sensitive national security matters. The Department conducted a thorough review of the document and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. (3) C06193231 C06197855 C06197857 C06201418 C06206248 Email 27 24 25 24 31 05/09/2016 05/09/2016 05/09/2016 05/09/2016 05/09-05/10/2016 DOS Officials, Reporter RIP (b)(5) DPP DESCRIPTION: These documents contain an inquiry from a reporter about the editing of the December 2, 2013 press briefing video to which an alleged transcript from the briefing is attached, and subsequent intra-agency deliberations about the inquiry and how the Department should respond to it. Documents C06193231, C06197857 and C06206248 include proposed talking points for responding to the press inquiry, and officials’ recommended edits to those talking points. The Department withheld these documents in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege. Release of the withheld material, which is pre-decisional and deliberative with respect to the Department’s determination of what happened to the video and its response to the press, and contains the authors’ personal opinions, thoughts, speculation, and recommendations regarding those decisions, could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when government officials are making decisions and crafting public responses on a sensitive subject. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department conducted a thorough review of the documents and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. (4) C06219552 Email 37 05/09/2016 DOS Officials, NSC Official, Reporter RIP (b)(5) DPP, PCP DESCRIPTION: These documents contain an inquiry from a reporter about the editing of the December 2, 2013 press briefing video to which an alleged transcript from the briefing is attached, and subsequent inter-agency deliberations about the inquiry and how the Department should respond to it. The Department withheld these documents in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege and the presidential communications privilege. Release of the withheld material, which is pre-decisional and deliberative with respect to the Case 1:16-cv-01355-RC Document 26-3 Filed 05/26/17 Page 2 of 6 ACLJ v. Dep’t of State No. 1:16-cv-01355 Vaughn Index Doc. No. Doc. Type Pages Date / Date Range Author(s) / Recipient(s) Review Result Exemptions Department’s determination of what happened to the video, and contains the authors’ personal opinions, thoughts, speculation, and recommendations regarding that determination, could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when government officials are making decisions and crafting public responses on a sensitive subject. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The withheld information contains communications by a presidential adviser and references to communications between presidential advisers. Release of this information would reveal information about the advice the President receives from close advisers regarding sensitive matters. The Department conducted a thorough review of the documents and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. (5) C06193265 C06199642 Email 1 3 05/09-07/29/2016 12/03/2013- 06/29/2016 DOS Officials RIP (b)(5) Attorney- Client Privilege (“ACP”) DESCRIPTION: These documents are e-mail communications from Department officials to Department attorneys containing facts about the processing of the video of the December 2, 2013 daily press briefing. The Department withheld this information in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the attorney-client privilege in order to protect communications from a client to a Department attorney for the purpose of seeking legal advice for the Department. The withheld information reflects communications from Department officials to Department attorneys for the purpose of obtaining legal advice. The communication was intended to be kept confidential and that confidentiality has been maintained. The Department conducted a thorough review of the documents and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. (6) C06197841 Email 1 12/03/2013 DOS Officials, NSC Official, White House Official RIP (b)(5) DPP, PCP DESCRIPTION: This document is an inter-agency exchange between a Department official and a White House official that contains deliberations, including questions and recommendations, about press strategy and points to be made to the press on topics related to Iran. The Department withheld this document in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege and the presidential communications privilege. Release of this material, which is pre-decisional and deliberative with respect to the Department’s press strategy and communications to the press, and contains the authors’ personal opinions and recommendations regarding those decisions, could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when government officials Case 1:16-cv-01355-RC Document 26-3 Filed 05/26/17 Page 3 of 6 ACLJ v. Dep’t of State No. 1:16-cv-01355 Vaughn Index Doc. No. Doc. Type Pages Date / Date Range Author(s) / Recipient(s) Review Result Exemptions are making decisions. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The withheld information contains communications with a presidential adviser and information about a meeting with White House officials. Release of this information would reveal information about the advice the President receives from close advisers regarding sensitive matters and would reveal the process by which the President receives such advice. The Department conducted a thorough review of the document and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. (7) C06224640 Email 1 05/09/2016 DOS Officials RIP (b)(5) DPP DESCRIPTION: This document is an intra-agency e-mail containing Department discussion of a response to a press inquiry regarding the December 2, 2013 daily press briefing video, and it includes recommendations regarding that response. The Department withheld this document in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege. Release of this material, which is pre-decisional and deliberative with respect to the Department’s response to the press, and contains the author’s personal opinions and preliminary recommendations regarding that response, could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when government officials are crafting press guidance on a sensitive subject. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department conducted a thorough review of the document and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. (8) C06219271 C06219312 Press Guidance 5 14 05/10/2016 05/11/2016 DOS RIP (b)(5) DPP DESCRIPTION: These documents contain press guidance prepared by the Bureau of Near Eastern Affairs (“NEA”) for, and in advance of, the Department’s May 10, 2016 and May 11, 2016 press briefings. The documents contain anticipated questions on a variety of topics and proposed responses in bullet-point form. The Department withheld these documents in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege. Release of these documents, which are pre-decisional and deliberative with respect to a final decision on communications to the press, could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when Department officials are crafting press guidance on a sensitive issue. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The documents are internal Department documents that were not disseminated outside the government. The Department conducted a thorough review of the documents and determined that there is no meaningful, Case 1:16-cv-01355-RC Document 26-3 Filed 05/26/17 Page 4 of 6 ACLJ v. Dep’t of State No. 1:16-cv-01355 Vaughn Index Doc. No. Doc. Type Pages Date / Date Range Author(s) / Recipient(s) Review Result Exemptions non-exempt information that may be reasonably segregated and released. (9) C06219322 C06219456 Email Tasking List 1 2 05/11/2016 05/11/2016 DOS Officials DOS RIP (b)(5) DPP DESCRIPTION: These intra-agency documents contain Department deliberations about PA’s collection of talking points from Department bureaus for use by PA at the daily press briefing. Document C06219322 includes information about obtaining clearance on the draft talking points and Document C06219456 is a draft list of topics on which PA was seeking talking points. The Department withheld these documents in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege. Release of this material, which is pre-decisional and deliberative with respect to the Department’s process of obtaining press guidance and topics on which guidance was sought could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when government officials are making decisions. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department conducted a thorough review of the documents and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. (10) C06219467 C06219548 C06219550 Email 2 2 3 05/10/2016 05/10/2016 05/10/2016 DOS Officials, NSC Official RIP (b)(5) DPP, PCP DESCRIPTION: These documents are inter-agency and intra-agency e-mail exchanges containing deliberations about the content of talking points provided by the Department’s Office of Iranian Affairs to PA for use in addressing news stories concerning the editing of the December 2, 2013 daily press briefing video. Documents C06219467 and C06219550 contain anticipated questions and draft answers in bullet-point form. Document C06219548 is fully subsumed in Document C06219550. The Department withheld the three documents in part under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege and withheld Document C06219550 in part under the presidential communications privilege. Release of this material, which is pre-decisional and deliberative with respect to guidance provided by a Department component to PA for use in communications to the press and contains the authors’ personal opinions and preliminary recommendations regarding that guidance, could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occurs when government officials are developing a response on a sensitive subject. Disclosure of this information would also impede the ability of responsible government officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The withheld information in Document C06219550 also contains communications with a presidential adviser. Case 1:16-cv-01355-RC Document 26-3 Filed 05/26/17 Page 5 of 6 ACLJ v. Dep’t of State No. 1:16-cv-01355 Vaughn Index Doc. No. Doc. Type Pages Date / Date Range Author(s) / Recipient(s) Review Result Exemptions Release of this information would reveal information about the advice received by the President from close advisers on sensitive national security matters and the process by which the President receives such advice. The Department conducted a thorough review of the documents and determined that there is no additional meaningful, non-exempt information that may be reasonably segregated and released. Case 1:16-cv-01355-RC Document 26-3 Filed 05/26/17 Page 6 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN CENTER FOR LAW AND ) JUSTICE, ) ) Plaintiff, ) ) vs. ) Case Action No. 16-cv-1355-RC ) UNITED STATES DEPARTMENT OF ) STATE, ) ) Defendant. ) [PROPOSED] ORDER The Court having reviewed the pleadings, declaration, and other materials on file, it is hereby ORDERED that Defendant Department of State’s Motion for Summary Judgment is GRANTED. It is further ORDERED that all of Plaintiff’s claims in this action are DISMISSED WITH PREJUDICE. DATE: ________________________ Rudolph Contreras United States District Judge Case 1:16-cv-01355-RC Document 26-4 Filed 05/26/17 Page 1 of 1