Buzzfeed, Inc. v. Federal Bureau of Investigation ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BUZZFEED, INC., et al.,
Plaintiffs,
Civil Action No. 18-cv-2567 (BAH)
v.
Chief Judge Beryl A. Howell
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
MEMORANDUM OPINION
Plaintiffs, Buzzfeed, Inc. and Jason Leopold, an investigative reporter for Buzzfeed,
challenge the response of the defendant, the Federal Bureau of Investigation (“FBI”), to four
requests submitted between October 4 and 6, 2018, pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, for materials collected as part of the FBI’s supplementary background
investigation (“SBI”) into then-Judge Brett Kavanaugh in the fall of 2018. See generally Am.
Compl., ECF No. 6. The SBI was requested by the President, pursuant to a decade-old
Memorandum of Understanding (“MOU”) between the President and the Department of Justice
governing procedures for the President to task the FBI to perform background investigations “to
ascertain facts and information relevant to [an] Appointee’s … suitability for Federal
government employment or retention in such employment.” Gov’t’s Mot. Summ. J. (“Gov’t’s
Mot.”), Ex. V, Memorandum of Understanding Between the Department of Justice and the
President of the United States Regarding Name Checks and Background Investigations
Conducted by the Federal Bureau of Investigation (“2010 MOU”) ¶ 2.b, ECF No. 23-4; see also
Gov’t’s Mot., Ex. 3, Declaration of David M. Hardy (Oct. 25, 2019) (“Hardy Decl.”), ¶¶ 52–54,
ECF No. 23-3.
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The FOIA requests at issue sought “a copy of the final report sent to the White House and
the Senate Judiciary Committee on either October 3 or October 4, 2018,” and “[a]ll interview
notes; investigative notes; FD-302s relating or referring to the FBI investigation into allegations
leveled against Mr. Kavanaugh.” Am. Compl., Ex. A, Pls. FOIA Request, ECF No. 6-1. The
parties have now cross-moved for summary judgment. Gov’t’s Mot. Summ. J. (“Gov’t’s Mot.”),
ECF No. 23; Pls.’ Opp’n Gov’t’s Mot. & Cross-Mot. Summ. J. (“Pls.’ Cross-Mot.”), ECF No.
25. For the reasons set forth below, the FBI’s motion for summary judgment is granted.
I. BACKGROUND
In September 2018, after allegations of sexual misconduct against then-Supreme Court
nominee Brett Kavanaugh became public, “an authorized official within the White House
Counsel’s Office” directed the FBI to undertake an SBI into these allegations. Hardy Decl. ¶ 56.
That investigation ultimately produced a “supplemental background investigation file” (“SBI
File”), consisting of a 527-page collection of various “e-mail communications, e-mail
attachments, FD-302s, exhibits, and related administrative documents.” Id. ¶ 57. More
specifically, these collected documents include: (1) “e-mail communications between FBI agents
and the White House official who was authorized to initiate the supplemental inquiry,” plus e-
mail attachments; (2) “e-mail communications between FBI agents and third parties (or the third
parties’ counsel), and internal FBI e-mails, regarding scheduling of interviews and other
logistics”; (3) “FD-302s documenting the FBI’s interviews, including a 302 attachment showing
private social media messages and text messages that were the subject of interview discussions”;
(4) “FBI agents’ hand-written interview notes”; (5) “fax cover sheets and transaction receipts”;
and (6) “FD-1036 import forms, which are similar to fax cover sheets and are used to import
FBI-related documents for which there is no standard webform.” Id. ¶ 58. The contents of the
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SBI File were “incrementally faxed” by the FBI to the White House Counsel’s Office, Hardy
Decl. ¶ 59, and portions of this file were subsequently loaned to the Senate Judiciary Committee
on October 4, 2018, id. ¶ 61.
The four FOIA requests at issue pertain to the FBI’s SBI for now-Justice Kavanaugh that
concluded with production to the White House Counsel’s Office of the SBI File. On October 4,
2018, plaintiffs submitted the first of the four requests, seeking “[a] copy of the final report sent
to the White House and the Senate Judiciary Committee on either October 3 or October 4, 2018
on Supreme Court nominee Brett Kavanaugh” and “[a]ll interview notes; investigative notes;
FD-302s relating or referring to the FBI investigation into allegations leveled against Mr.
Kavanaugh.” Am. Compl., Ex. A, ECF No. 6-1. Plaintiffs submitted a second request the next
day, this time seeking “[a]ll submissions to the FBI tip line, FBI web portal and emails to FBI
Headquarters relating or referring to Supreme Court nominee Brett Kavanaugh, allegations
leveled against him referring to sexual assault, his character, his drinking, Georgetown Prep, his
years as a high school student and college student, requests by individuals to be interviewed by
the FBI,” as well as well as any correspondence between the FBI and individuals who submitted
such tips and internal correspondence regarding the supplementary investigation. Am. Compl.,
Ex. E, ECF No. 6-5. Plaintiffs third request, submitted on October 6, 2018, again sought the
FBI’s final report as well as “interview notes; investigative notes; FD-302s relating or referring
to the FBI investigation…” Am. Compl., Ex. I, ECF No. 6-9. Their last request, also submitted
on October 6, 2018, sought all letters sent “to the FBI by [sic] relating or referring to Supreme
Court nominee Brett Kavanaugh and any accusations leveled against him about his conduct, his
character, his behavior and/any records attesting to his character.” Am. Compl., Ex. M, ECF No.
6-13. Less than a week later, on October 11, 2018, the FBI acknowledged receipt of and
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approved expedited processing for all four of plaintiffs’ requests. Am. Compl. ¶¶ 7–8, 14–15,
20–21, 26–27; Gov’t’s Statement of Material Facts as to Which There is No Genuine Issue
(“Gov’t’s SOF”), ¶ 3, 6, 9, 11, ECF No. 23-2.
The FBI searched for records responsive to the four requests in six locations—the
agency’s Central Records System, Criminal Justice Information Services Division, Office of
Public Affairs, Office of Congressional Affairs, Office of the Executive Secretariat, and Security
Division—after “conclud[ing] that these were the locations/offices within the FBI likely to
maintain responsive records, and that no other locations or offices were likely to maintain
responsive records.” Hardy Decl. ¶ 19. Between May 3 and August 7, 2019, the FBI produced
four sets of responsive “tip records” to plaintiffs, “with certain information withheld pursuant to
FOIA Exemptions (b)(6), (b)(7)(A), (b)(7)(C), and (b)(7)(E).” Gov’t’s SOF ¶¶ 14–17. These
records were also published online in “The Vault,” the FBI’s online FOIA Library, in accordance
with 5 U.S.C. § 522(a)(2)(D)(ii)(II), which requires agencies to “make available for public
inspection in an electronic format” records that “have been requested 3 or more times.” Id. ¶ 18.
Overall, the FBI “processed a total of 2,579 pages of responsive records,” of which it released
“23 pages in full” and “2,029 pages in part,” Hardy Decl. ¶ 4, leaving 527 pages withheld in full.
The 527-pages withheld in full comprised the SBI File, which the FBI determined was
exempt from disclosure “pursuant to [FOIA] Exemption (b)(5), in conjunction with the
presidential communications privilege.” Gov’t’s SOF ¶ 19. The agency further informed
plaintiffs that portions of the SBI File were also withheld “pursuant to FOIA Exemptions (b)(6),
(b)(7)(C), (b)(7)(D), and (b)(7)(E).” Id. The bases for these withholdings are set out in the
FBI’s Vaughn Index, see Gov’t’s Mot., Ex. U, Vaughn Index, ECF No. 23-4,1 and further
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“A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and
explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C. Cir. 2015).
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explained in a declaration from David M. Hardy, the Section Chief of the Record/Information
Dissemination Section within the FBI’s Information Management Division, see Hardy Decl.
Plaintiffs “do not object to FBI’s limited redactions under Exemptions 6 and 7[.]” Pls.’
Reply Supp. Pls.’ Cross-Mot. (Pls.’ Reply”) at 1, n.1, ECF No. 30; see also Pls.’ Mem. Opp’n
Gov’t’s Mot. & Supp. Pls.’ Cross-Mot. (“Pls.’ Opp’n”) at 13, ECF No. 25-1 (stating that
plaintiffs do not contest “the withholding pursuant to Exemption 6 of the names and identifying
information of any third-parties who provided information to the FBI to the extent those names
(if any) were not already released by the Judiciary Committee or are otherwise public, the names
of FBI agents and staff, the names and identifying information of third-parties merely mentioned,
Judge Kavanaugh’s home address, or the names and identifying information of non-FBI
government personnel.”); Gov’t’s Mem. Pts & Auth. In Opp’n To Pls.’ Cross-Motion For Summ.
J. & Reply Supp. Gov’t’s Mot. For Summ. J. (“Gov’t’s Opp’n”), at 1, ECF No. 28 (“Plaintiffs do
not challenge the FBI’s searches or withholdings pursuant to Exemptions (b)(3), (b)(7)(A),
(b)(7)(D), and (b)(7)(E); or its (b)(6) and (b)(7)(C) withholdings of the names and identifying
information of FBI special agents, FBI professional staff, third parties who provided information
to the FBI or were merely mentioned, non-FBI government personnel, and Judge Kavanaugh’s
home address.”). Thus, plaintiffs’ sole challenge is to the FBI’s withholding in full, under
Exemption 5, of the 527-page SBI File. See generally, Pls.’ Reply.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment shall be granted “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a). “In FOIA cases, summary judgment may
be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather
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than merely conclusory statements, and if they are not called into question by contradictory
evidence in the record or by evidence of agency bad faith.” Aguiar v. DEA, 865 F.3d 730, 734–
35 (D.C. Cir. 2017) (internal quotation marks omitted) (quoting Judicial Watch, Inc. v. U.S.
Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013)); see also Students Against Genocide v. Dep’t of
State, 257 F.3d 828, 833 (D.C. Cir. 2001) (“[A]n agency is entitled to summary judgment if no
material facts are in dispute and if it demonstrates ‘that each document that falls within the class
requested either has been produced or is wholly exempt from the Act’s inspection
requirements.’” (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978))). Most FOIA cases
will be resolved on summary judgment. Brayton v. Office of the U.S. Trade Representative, 641
F.3d 521, 527 (D.C. Cir. 2011).
To balance the public’s interest in governmental transparency and “legitimate
governmental and private interests [that] could be harmed by release of certain types of
information,” Judicial Watch, Inc. v. U.S. Dep’t of Defense, 913 F.3d 1106, 1108 (D.C. Cir.
2019) (internal quotation mark omitted) (quoting FBI v. Abramson, 456 U.S. 615, 621
(1982)), FOIA has nine exemptions, set forth in 5 U.S.C. § 552(b), which “are ‘explicitly made
exclusive’ and must be ‘narrowly construed,’” Milner v. Dep’t of the Navy, 562 U.S. 562, 565
(2011) (citations omitted) (first quoting EPA v. Mink, 410 U.S. 73, 79 (1979); and then quoting
Abramson, 456 U.S. at 630). “[T]hese limited exemptions do not obscure the basic policy that
disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of the Air Force v. Rose,
425 U.S. 352, 361 (1976).
FOIA authorizes federal courts to “enjoin the agency from withholding agency records
and to order the production of any agency records improperly withheld from the complainant.” 5
U.S.C. § 552(a)(4)(B). District courts must “determine de novo whether non-disclosure was
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permissible.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d 518, 522 (D.C.
Cir. 2015). “FOIA places the burden ‘on the agency to sustain its action,’ and the agency
therefore bears the burden of proving that it has not ‘improperly’ withheld the requested
records.” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 922 F.3d 480,
487 (D.C. Cir. 2019) (citations omitted) (first quoting 5 U.S.C. § 552(a)(4)(B); and then quoting
U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)); see also U.S. Dep’t of
Justice v. Landano, 508 U.S. 165, 171 (1993) (noting that “[t]he Government bears the burden of
establishing that the exemption applies”). This burden does not shift even when the requester
files a cross-motion for summary judgment because “the Government ‘ultimately [has] the onus
of proving that the [documents] are exempt from disclosure,’” while the “burden upon the
requester is merely ‘to establish the absence of material factual issues before a summary
disposition of the case could permissibly occur.’” Pub. Citizen Health Research Grp. v. FDA,
185 F.3d 898, 904–05 (D.C. Cir. 1999) (alterations in original) (quoting Nat’l Ass’n of Gov’t
Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).2
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The FBI points out that “each fact” claimed in its Statement of Material Facts should be treated “as
conceded” because plaintiffs failed to controvert the alleged facts in an opposing statement, as required by this
Court’s local rules. Gov’t’s Opp’n Pls.’ Cross-Mot & Reply Supp. Gov’t’s Mot. (“Gov’t’s Opp’n”) at 1 n.2, ECF
No. 28 (citing LCvR 7(h)(1)). Indeed, a party ignores at its peril the requirements of applicable procedural rules,
particularly FEDERAL RULE OF CIVIL PROCEDURE 56(e)(2) and LCvR 7(h)(1), which are intended to ensure clarity as
to disputed issues. See Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 & n.8 (D.C. Cir. 2013) (treating
as conceded agency’s statement of facts in FOIA suit when plaintiff “never contested any of those factual
descriptions”) (citing Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1054 n.7 (D.C. Cir.
1981) (“Because [the appellant] did not contest the Government's [factual] assertions[,] . . . Rule 56(e) of the Federal
Rules of Civil Procedure requires this court to take the Government's assertions as true. . . . In other words, failure to
raise a genuine issue as to a material fact constitutes a concession that the uncontested fact is true for purposes of
summary judgment.”)) and Malik v. District of Columbia, 574 F.3d 781, 783 n.1 (D.C. Cir. 2009)). At the same
time, “the District Court ‘must always determine for itself whether the record and any undisputed material facts
justify granting summary judgment,’” Figueroa v. Pompeo, 923 F.3d 1078, 1095 (D.C. Cir. 2019) (quoting Winston
& Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016)).
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III. DISCUSSION
FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums
or letters that would not be available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5). Two conditions must be met for a record to qualify for this
exemption: (1) “its source must be a Government agency;” and (2) “it must fall within the ambit
of a privilege against discovery under judicial standards that would govern litigation against the
agency that holds it.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8,
(2001); see also Nat’l Inst. of Military Justice v. U.S. Dep’t of Def. (“NIMJ”), 512 F.3d 677, 682
(D.C. Cir. 2008); Stolt-Nielsen Transp. Grp. LTD. v. United States, 534 F.3d 728, 733 (D.C. Cir.
2008). The Supreme Court has made clear that “the first condition of Exemption 5 is no less
important than the second; the communication must be ‘inter-agency or intra-
agency.’” Klamath, 532 U.S. at 9 (quoting 5 U.S.C. § 552(b)(5)). The second condition “covers
the presidential communications privilege, the deliberative process privilege, and the attorney-
client privilege.” Judicial Watch, 913 F.3d at 1109; see also Abtew v. U.S. Dep’t of Homeland
Sec., 808 F.3d 895, 898 (D.C. Cir. 2015). Here, the parties dispute whether the two conditions
for invocation of Exemption 5 are satisfied for withholding of the SBI File.
For its part, the FBI justifies the withholding of the SBI File based on the presidential
communications privilege, which is “a ‘presumptive privilege for [p]residential
communications.’” Loving v. Dep’t of Defense, 550 F.3d 32, 37 (D.C. Cir. 2008) (alteration in
original) (quoting United States v. Nixon, 418 U.S. 683, 708 (1974)). The FBI contends this
privilege “squarely” applies because the SBI—and therefore the SBI File—was solicited by the
White House Counsel’s Office in the service of a core, nondelegable presidential function,
namely, the appointment of a Supreme Court Justice, and, further, the privilege remains intact,
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without the need for personal invocation by the President and despite the furnishing of the file to
the Senate Judiciary Committee. See generally Gov’t’s Mem. Pts. Auth. Supp. Mot. Summ. J.
(“Gov’t’s Mem.”), ECF No. 23-1; Gov’t’s Opp’n.
Plaintiffs, on the other hand, broadly argue that FOIA’s Exemption 5 should not be
construed to encompass the presidential communications privilege. Pls.’ Opp’n at 7–10.
Further, if the presidential communications privilege could be the basis for withholding under
Exemption 5, plaintiffs contend the privilege is inapplicable here for four reasons: (1) “the
President did not request or consider the SBI for his own presidential decision-making, but
instead did so only at the request of the Senate … to facilitate the Senate’s own Constitutionally
separate decision-making,” Pls.’ Reply at 3; see also Pls.’ Opp’n at 3–5; (2) the FBI has not
established that portions of the file were ever received by the White House Counsel’s Office,
those portions do not qualify for the privilege, Pls.’ Opp’n at 7; (3) the privilege was waived
when the White House shared the SBI File with the Senate Judiciary Committee, which publicly
released a summary of the file, id. at 5–6; and (4) use of the privilege requires the President’s
personal invocation, which is absent here, id. at 7.
The FBI has the better arguments, for the reasons explained below.
A. PRESIDENTIAL COMMUNICATIONS PRIVILEGE APPLIES TO SBI
FILE
Plaintiffs’ argument that Exemption 5 does not encompass the presidential
communications privilege is predicated on a textual interpretation of the term “intra-agency
memorandums” more stringent than current D.C. Circuit precedent allows. Following review of
that argument, analysis of the scope of this privilege demonstrates that the FBI has properly
applied the privilege to the SBI File.
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1. Exemption 5’s “Inter-Agency or Intra-Agency” Records Requirement
Encompasses the Presidential Communications Privilege
Exemption 5’s first condition of “inter-agency or intra-agency memorandums” cannot be
met, in plaintiffs’ view, by communications between an agency and the President (or the
President’s advisors) since the latter do not qualify as an agency within the meaning of FOIA.
Pls.’ Opp’n at 7–8. To be sure, FOIA applies only to federal agencies and “Congress did not
intend the word ‘agency’ to include the President, his ‘immediate personal staff[,] or units in the
Executive Office whose sole function is to advise and assist the President.’” Judicial Watch, Inc.
v. United States Secret Serv., 726 F.3d at 216 (quoting Kissinger v. Reporters Committee for
Freedom of the Press, 445 U.S. 136, 156 (1980)) (internal quotations and citation omitted)
(alterations in original).
Yet, “[n]either Exemption 5 nor the cases interpreting it distinguish between the
decision-making activities of an ‘agency’ subject to the FOIA and those of the President and his
staff, who are not subject to the FOIA.” Judicial Watch, Inc. v. Dep’t of Energy, 412 F.3d 125,
129 (D.C. Cir. 2005). Instead, as the D.C. Circuit has explained, “the Supreme Court [has]
deemed it ‘beyond question’ that documents prepared by agency officials to advise the President
were within the coverage of Exemption 5 because they were ‘“intra-agency” or “inter-agency”
memoranda or ‘letters’ that were used in the decisionmaking processes of the Executive Branch.”
Id. (quoting Mink, 410 U.S. at 85). For this reason, the D.C. Circuit has consistently viewed
Exemption 5 as covering the presidential communications privilege, among other privileges.
See, e.g., Judicial Watch, 913 F.3d at 1108 (“memoranda responsive to [plaintiff’s] FOIA
request are protected from disclosure under the presidential communications privilege in
Exemption 5”); Citizens for Responsibility and Ethics in Wash. v. U.S. Dep’t of Homeland
Security (“CREW”), 532 F.3d 860, 868 (D.C. Cir. 2008) (collecting cases and explaining that
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“invocation of the presidential communications privilege in FOIA cases is a routine
occurrence”); Loving, 550 F.3d at 37 (“Exemption 5 ‘incorporates the traditional privileges that
the Government could assert in civil litigation against a private litigant’—including the
presidential communications privilege…” (quoting Baker & Hostetler LLP v. U.S. Dep’t of
Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006)); Judicial Watch, 365 F.3d at 1112 (explaining
that Exemption 5 contains “a built-in presidential communications privilege for records in the
possession of, or created by, immediate White House advisors, who are not considered an agency
for the purposes of FOIA.”).
In the face of this binding precedent cementing the “routine” incorporation of the
presidential communications privilege into Exemption 5, CREW, 532 F.3d at 867, plaintiffs rely
on Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2363–64 (2019), in which
the Supreme Court rejected a “competitive harm” test unsupported by the text of Exemption 4, to
argue that “policy reasons are irrelevant in light of the plain text of the statute limiting the
exemption to “inter-agency or intra-agency” records,” Pls.’ Opp’n at 10. Plaintiffs reliance on
Argus Leader is misplaced. After all, to qualify as an “intra-agency memorandum[],” a
document’s “source must be a Government agency,” Klamath, 532 U.S. at 8, and here the SBI
File consists of email communications, FD-302s, interview notes, and administrative notes either
exchanged with or created by FBI agents, and compiled within the agency before subsequently
being sent to the White House Counsel’s Office. In essence, then, plaintiffs’ position is that the
transmittal of the SBI File to the White House Counsel’s Office, a non-agency government
entity, stripped these records of protection under Exemption 5.
To the extent plaintiffs believe that Argus Leader requires new attention to the text of
Exemption 5’s first condition of an inter- or intra-agency communication, binding precedent in
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this circuit again dictates the result. To begin, in Klamath, the Supreme Court considered
whether documents submitted by a non-agency to an agency can nonetheless qualify as “intra-
agency memorandums” for Exemption 5 purposes, and concluded that records submitted to an
agency by an outside entity, not for the purpose of “truth and its sense of what good judgment
calls for … as an employee would be expected to do,” 532 U.S. at 11, but instead to
communicate its “own, albeit entirely legitimate interests,” id. at 12, do not qualify, id. at 14–16.
While the Supreme Court left open the broader question whether “communications between
Government agencies and outside consultants hired by them” may qualify as “intra-agency
memorandums,” id. at 10, the D.C. Circuit has continued, post-Klamath, to apply its functional
approach to find that communications between agencies and outside, or non-agency, entities may
indeed meet the first statutory condition of Exemption 5. See, e.g., Pub. Emps. for Env’t’l.
Responsibility v. United States Section, Int'l Boundary & Water Comm'n, 740 F.3d 195, 201
(D.C. Cir. 2014) (“this Court has also interpreted the phrase ‘intra-agency’ in Exemption 5 to go
beyond the text and include U.S. agency records authored by non-agency entities if those records
were solicited by a U.S. agency in the course of its deliberative process”) (italics in original);
McKinley v. Board of Governors of the Federal Reserve System, 647 F.3d 331, 336–39 (D.C.
Cir. 2011) (finding records submitted to Board of Governors of the Federal Reserve System by a
non-agency reserve bank qualified as an intra-agency communication under Exemption 5);
NIMJ, 512 F.3d at 680 (D.C. Cir. 2008) (“our Circuit precedent interprets ‘intra-agency’ to
include agency records containing comments solicited from non-governmental parties such as
the lawyers whose counsel DoD sought—and, more to the point, our precedent is not
inconsistent with Klamath.”). In so doing, the D.C. Circuit has cited approvingly pre-Klamath
decisions in which submissions to agencies from non-agency government entities, such as
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Senators and former Presidents, were accorded Exemption 5 protection. See, e.g., NIMJ, 512
F.3d at 680 (discussing Ryan v. Dep’t of Justice, 617 F.2d 781 (D.C. Cir. 1980) (holding that
documents submitted by United States senators in response to Department of Justice
questionnaire about procedures for selecting and recommending potential judicial nominees were
exempt from FOIA disclosure under Exemption 5)); id. at 681 (discussing Formaldehyde Inst. v.
Dep’t of Health & Human Servs., 889 F.2d 1118 (D.C. Cir. 1989) (holding that Exemption 5
protected comments by private referees for the American Journal of Epidemiology regarding a
report submitted for publication by an employee of the Centers for Disease Control); id. at 681
(discussing Public Citizen, Inc. v. Dep’t of Justice, 111 F.3d 168 (D.C. Cir. 1997) (holding that
communications among former President Reagan, the National Archives and the Department of
Justice and among former President Bush and the same agencies regarding electronic records of
each of the two Presidents' administrations qualify “intra-agency” for purposes of Exemption
5)).3
Most relevant here, the D.C. Circuit, post-Klamath, in Judicial Watch, Inc. v. Department
of Energy, concluded that agency communications with a non-agency government entity, the
National Energy Policy Development Group (NEPDG), created and tasked by the President to
provide him with advice and assistance, were “intra-agency” communications even though
3
Judge Tatel vigorously dissented in NIMJ, criticizing the majority’s holding that “our earlier cases ‘compel
us to conclude that documents . . . submitted by non-agency parties in response to an agency’s request for advice are
covered by Exemption 5,” NIMJ, 512 F.3d at 692 (Tatel, J., dissenting) (quoting NIMJ, 512 F.3d at 681), because
that holding “disregards the Supreme Court’s command that FOIA exemptions be narrowly construed,” id. at 694,
and “contravenes Klamath,” id. at 696, by redefining and stretching the meaning of “intra-agency” rather than giving
the term “independent vitality,” as Klamath instructed. In his view, “Klamath eviscerates the reasoning in the Ryan
[v. DOJ, 617 F.2d 781 (D.C. Cir. 1980)] line of cases,” including Formaldehyde Institute v. Department of Health &
Human Services, 889 F.2d 1118 (D.C. Cir. 1989), and Public Citizen, Inc. v. DOJ, 111 F.3d 168 (D.C. Cir. 1997).
He reiterated these concerns, in concurring in the denial of rehearing en banc, explaining “despite my serious
misgivings about the continuing validity of our ‘intra-agency’ decisions in the post-Klamath era,
because Klamath does not squarely address the question of when outside experts qualify as ‘intra-agency,’ I see little
point in this court spending more time on the issue. Only the Supreme Court can clarify the outer limits of the
‘intra-agency’ prong of Exemption 5.” Nat’l Inst. Military Justice v. Dep’t of Defense, No. 06-5242, 2008 WL
1990366, at *2 (D.C. Cir. Apr. 30, 2008) (Tatel, J., concurring).
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the President and his immediate staff are not an “agency” within the meaning of FOIA. 412 F.3d
125, 130–31 (D.C. Cir. 2005). The court expressly rejected the view that this “interpretation of
Exemption 5” is inconsistent “with its textual limitation to ‘intra-agency’ or ‘inter-agency’
communications,” explaining “[r]ather, it follows from the principle, well established in this
circuit, that a document need not be created by an agency or remain in the possession of the
agency in order to qualify as ‘intra-agency.’” Id. at 130. This holding recognized “the basic
need of the President and his White House staff to monitor the consistency of executive agency
regulations with Administration policy,” and to “be briefed fully and frequently about rules in
the making, and their contributions to policymaking considered.” Id. at 130 (internal quotations
and citation omitted)). “[W]hat matters,” the Court held, “is whether a document will expose the
pre-decisional and deliberative processes of the Executive Branch.” Id. at 131.
In short, binding D.C. Circuit precedent compels the conclusion that Exemption 5
encompasses the presidential communications privilege and the finding that the SBI File, itself a
communication between the FBI and the President and containing additional such
communications, constitutes “intra-agency memorandums or letters” under FOIA Exemption 5.
2. Presidential Communications Privilege Covers the SBI File
The presidential communications privilege “protects ‘communications directly involving
and documents actually viewed by the President,’ as well as documents ‘solicited and received’
by the President or his ‘immediate White House advisers [with] … broad and significant
responsibility for investigating and formulating the advice to be given the President.’” Loving,
550 F.3d at 37 (alteration in original) (quoting Judicial Watch, 365 F.3d at 1114). As the D.C.
Circuit has explained, “[t]he privilege covers documents reflecting ‘presidential decisionmaking
and deliberations,’ regardless of whether the documents are predecisional or not, and it covers
14
the documents in their entirety.” Id. at 37–38 (quoting In re Sealed Case, 121 F.3d 729, 744–45
(D.C. Cir. 1997)).
The purpose of the privilege is to “preserve[] the President’s ability to obtain candid and
informed opinions from his advisors and to make decisions confidentially.” Id. at 37. As such,
the privilege protects “the need for confidentiality to ensure that presidential decision-making is
of the highest caliber,” In re Sealed Case, 121 F.3d at 750, so that the President may “effectively
and faithfully carry out his Article II duties and ‘to protect the effectiveness of the executive
decision-making process,’” Judicial Watch, 365 F.3d at 1115 (quoting In re Sealed Case, 121
F.3d at 742) (internal quotation marks omitted). The privilege is “‘fundamental to the operation
of Government and inextricably rooted in the separation of powers under the Constitution’
because it ‘relates to the effective discharge of a President’s powers.’” Judicial Watch, 913 F.3d
at 1110 (quoting Nixon, 418 U.S. at 708); see also In re Sealed Case, 121 F.3d at 745 (describing
the presidential communications privilege as “rooted in constitutional separation of powers
principles and the President’s unique constitutional role.”).
In Loving, the D.C. Circuit held that a set of records “concerning the general procedures
for transmitting military death penalty cases to the President” were exempt from FOIA under
Exemption 5 and the presidential communications privilege. 550 F.3d at 36. Two of these
records were “memoranda from the Army and Defense Secretaries directly to the President
advising him on his [Uniform Code of Military Justice] Article 71(a) review of [the plaintiff’s]
capital sentence.” Id. at 39. “Such memoranda,” the Circuit concluded, “fall squarely within the
presidential communications privilege because they ‘directly involve’ the President, and their
confidentiality ‘ensure[s] that presidential decision-making is of the highest caliber, informed by
honest advice and full knowledge.” Id. at 39 (alteration in original) (quoting Judicial Watch, 365
15
F.3d at 1114 and In re Sealed Case, 121 F.3d at 750). A third document—“the Judge Advocate
General’s recommendation on Loving’s [the plaintiff’s] capital sentence”—was not addressed
directly to the President but was instead “forwarded by the Army Secretary to the President.” Id.
at 40. This document was also privileged, the Circuit held, because “the President solicited and
received [it] in a manner sufficient to bring it within the presidential communications privilege,”
and it “d[id] not lose its privileged status simply because it traveled up the chain of command
before the President received it.” Id.
The presidential communications privilege applies for similar reasons in this case. To
begin, the SBI File was “solicited and received” by “immediate White House advisers” with
“broad and significant responsibility for investigating and formulating … advice to be given the
President.” Loving, 550 F.3d at 37; Judicial Watch, 365 F.3d at 1114. Under the 2010 MOU,
“[r]equests for FBI background investigations and name checks of Appointees” must be made by
the President “or an official who has been designated in writing to make such requests.” 2010
MOU ¶ 3(a). In this case, the “President designated the White House Counsel to request [an]
initial full-field background investigation of then-Judge Kavanaugh.” Hardy Decl. ¶ 55. In
September 2018, “an authorized official within the White House Counsel’s Office” then “sent a
series of emails to the FBI on behalf of the President soliciting [a] follow-up inquiry, also known
as the supplemental background investigation, which is at issue in this litigation.” Id. ¶ 56. The
2010 MOU requires that the results of any such investigation be reported back to the President or
his designated official. See 2010 MOU ¶¶ 4(a)–(e).
Here, in conformity with this procedure, “the FBI incrementally faxed the entire
supplemental background investigation file … to the White House Counsel’s Office, with the
potential exception of the FBI agents’ hand-written interview notes and a small number of
16
administrative note pages.” Hardy Decl. ¶ 59. Thus, the SBI File was plainly “solicited and
received” by the White House Counsel’s Office, meeting that aspect of the presidential
communications privilege’s requirements.4
Meanwhile, the SBI was requested to assist the President “effectively and faithfully carry
out his Article II duties,” in line with the overarching purpose of the privilege. Judicial Watch,
365 F.3d at 1115. As the government points out, the appointment of Supreme Court justices is a
core, nondelegable presidential duty specifically enumerated in Article II of the Constitution.
Gov’t’s Mem. at 17–18. The critical importance of this function also presents a heightened
“need for confidentiality to ensure that presidential decision-making is of the highest caliber,” In
re Sealed Case, 121, F.3d at 750, which the privilege is designed to provide. Indeed, the White
House Counsel’s Office specifically communicated to the FBI “that the disclosure of the [SBI
File] would inhibit the President’s ability to engage in effective communications and decision-
making by interfering with the ability of the President to seek and obtain candid information.”
Hardy Decl. ¶ 62.
Accordingly, the SBI File is protected by the presidential communications privilege
under Exemption 5.
B. PLAINTIFF’S FACTUAL CHALLENGES TO APPLICATION OF
PRESIDENTIAL COMMUNICATIONS PRIVILEGE FAIL
Plaintiffs contend that, even if Exemption 5 encompasses the presidential
communications privilege, this privilege does not properly apply here because the SBI did not
serve presidential decision-making. Pls.’ Reply at 2 (“this particular background investigation
had no part in any protected presidential decision-making process”). To bolster this point,
4
Plaintiffs’ specific challenge to withholding of the hand-written interview notes and administrative note
pages, which the FBI cannot confirm were transmitted to the White House Counsel’s Office, is addressed, infra, in
Section III.D.
17
plaintiffs raise two factual challenges. First, plaintiffs highlight that the SBI was instigated at the
request of the Senate Judiciary Committee. Id. at 2 (noting Republican Senator Jeff Flake’s vote
“to advance the Kavanaugh nomination with the understanding that FBI would conduct a
supplemental background investigation”); Pls.’ Statement of Material Facts Supp. Pls.’ Mot.
(“Pls.’ SOF”), at ¶¶ 1, 3, ECF No. 25-2. In addition, plaintiffs point to the President’s own
statements expressing his intention of continuing with the nomination before the results of the
SBI were known. See Pls.’ Reply at 3 (“At the time he announced the SBI that the Senate
requested, the President stated that Judge Kavanaugh ‘will someday be recognized as a truly
great Justice of The United States Supreme Court!’”); id. at 3 (“When asked on September 28,
2018, whether he had thought about a replacement for Judge Kavanaugh, the President stated:
‘Not even a little bit.’”). Irrespective of the political dynamics that prompted the President to
request the SBI, as authorized under the 2010 MOU, see id. ¶ 3.d (referencing “[r]equests for
supplemental inquiries… while an Appointee's confirmation is pending will be presumed to be
within the ambit of the original consent”), and despite the President’s public statements, the
presidential communications privilege applies.5
5
Plaintiffs also challenge the sufficiency of the Hardy Declaration, as “improperly vague” and “lack[ing] in
foundation” to support application of the presidential communications privilege since the affiant is an FBI employee
and no White House official submitted an affidavit regarding invocation of this privilege. Pls.’ Opp’n at 4. The
Court disagrees. Certainly, Federal Rule of Civil Procedure 56 requires factual positions to be supported by
adequate materials in the record, with specific requirements for factual matters presented in affidavits or
declarations. See FED. R. CIV. P. 56(c)(4) ( “An affidavit or declaration used to support or oppose a motion [for
summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to testify on the matters stated.”). In FOIA cases, an agency declarant
need not have been personally involved in the events reflected in, or preparation of, the records at issue but merely
have personally been advised about or reviewed those records to meet the Rule 56 standard. See, e.g., SafeCard
Servs., Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991) (finding that agency affiant “in charge of coordinating
the agency’s search and recovery efforts” was “the most appropriate person to provide a comprehensive affidavit”
since “an agency employee responsible for supervising [the] search” may make such a declaration, even if in doing
so he or she “necessarily reli[es] upon information provided by staff members who actually performed [the]
search.”); Meeropol v. Meese, 790 F.2d 942, 951 (D.C. Cir. 1986) (accepting affidavit by agency employee who
“had supervised the search of all the main files at FBI Headquarters…”); Prop. of the People, Inc., et al. v. Dep’t of
Justice, 405 F. Supp. 3d 99, 125 (D.D.C. 2019) (approving agency declaration “based upon [employee’s] personal
knowledge, upon information provided to me in my official capacity, and upon conclusions and determinations
18
First, even if activity on the Senate Judiciary Committee prompted the SBI, the White
House Counsel’s Office, not the Committee, actually “solicited” the SBI in connection with the
nomination of a Supreme Court Justice, pursuant to the 2010 MOU, and thus this request was
made in the service of a nondelegable presidential duty. The President’s September 28, 2018
tweet cited by plaintiffs, see Pls.’ Reply at 3, stating that the SBI would be “limited in scope and
completed in less than one week,” “[a]s the Senate has requested,” only confirms that the
President, not the Senate, “ordered the FBI to conduct” the investigation,” Gov’t’s Resp. to Pls.’
SOF (“Gov’t’s Resp. Pls’ SOF”), at ¶ 2, ECF No. 29-1. The plaintiffs concede as much. Pls.’
Opp’n at 2 (conceding that “the President ordered the FBI to conduct [the] SBI.”). Nor could the
Senate have ordered the SBI since the FBI conducts background investigations into potential
judicial nominees pursuant to the 2010 MOU, which restricts the agency to undertaking such
investigations only at the request of the President or an official designated by the President.
Hardy Decl. ¶ 52; Gov’t’s Opp’n at 5 (“[t]here is no similar agreement authorizing the Senate to
request—much less force—the FBI to conduct a background investigation of a judicial nominee
selected by the President.”).
reached and made in accordance therewith.”); Wisdom v. United States Trustee Program, 232 F. Supp. 3d 97, 115–
16 (D.D.C. 2017) (accepting agency affidavit based on “information provided to [the affiant] by other agency
employees and his own review of agency records.”); Hainey v. U.S. Dep’t of the Interior, 925 F. Supp. 2d 34, 41
(D.D.C. 2013) (“[I]t is well settled that FOIA declarants may include statements in their declarations based on
information they have obtained in the course of their official duties.” (internal citation and quotation marks
omitted)). Here, the records at issue are created and retained by the FBI and subject to the 2010 MOU, to which the
FBI is a party. See, e.g., 2010 MOU ¶ 5.d. (“Information obtained during an investigation will be retained at FBI
Headquarters and FBI field offices in accordance with the FBl's Privacy Act records systems notices, Records
Retention Plan, and Disposition Schedule.”). Consequently, an FBI affiant is an appropriate person with knowledge
of the facts relevant to evaluating application of FOIA Exemption 5. Cf. Lardner v. U.S. Dep’t of Justice, No. Civ.
03-0180 (JDB), 2005 WL 758267, at *9–10 (D.D.C. Mar. 31, 2005) (relying for application of presidential
communications privilege to records requested regarding presidential pardons on affidavit of an attorney-advisor in
the Office of the Pardon Attorney in the U.S. Department of Justice). The agency affiant, David Hardy, as the
Section Chief of the FBI’s Record/Information Dissemination Section, supervises the section with the “mission [] to
effectively plan, develop, direct, and manage responses to requests for access to FBI records and information
pursuant to the FOIA,” Hardy Decl. ¶ 2, and his declaration is “based on [his] personal knowledge, upon
information provided to [him] in [his] official capacity, and upon conclusions and determinations reached and made
in accordance therewith,” id. As such, the Hardy Declaration adequately meets the Rule 56 standard.
19
Plaintiffs counter that “the mere fact that the President issued the order to the FBI to
conduct the investigation … does not mean that he did so for the purpose of presidential
decision-making, which is the relevant question,” when here “the investigation was conducted to
assist the Senate in its decision whether to consent to the nomination, …. and [] the scope and
timing of the investigation came from the Senate, not the President, other than in the most
superficial and irrelevant sense.” Pls. Reply at 4. Irrespective of the plausibility of plaintiffs’
view of the facts, the result of this factual challenge would have this Court drill down into the
White House’s motivations for making the request for the SBI and then assess whether and how
much political pressure—from another branch of the Federal government, particular members of
Congress, the public or whatever source—was brought to bear to prompt the presidential action,
all as a prerequisite to evaluating the role the SBI File played in the President’s decision to
support the Supreme Court nominee. Even if a court were equipped to test the motivations for a
specific presidential action in a dynamic political context, doing so would turn the whole point of
the presidential communications privilege on its head by undermining the President’s ability to
“make decisions confidentially.” Loving, 550 F.3d at 37. This Court declines to proceed down
this proverbial rabbit hole.
Second, the President’s statements publicly touting his nominee and even eschewing the
need for the SBI do not undermine application of the presidential communications privilege.
These statements did not preclude the possibility that the results of the SBI might or could have
altered his view. The FBI concedes that, on September 28, 2018, when announcing the SBI, the
President tweeted that Brett Kavanaugh would “someday be recognized as a truly great Justice of
The United States Supreme Court!”, but expressly denies the conclusion drawn by plaintiffs, that
“the President was not reconsidering the nomination and did not request the SBI for the purposes
20
of his own decision-making.” Gov’t’s Resp. Pls’ SOF, ¶ 4. Public statements indicating
continued support do not necessarily reflect what occurred behind closed White House doors or
forestall alternate positions or outcomes, and such statements hardly establish, over the agency’s
sworn statements to the contrary, see Hardy Decl. ¶ 62, that the purpose of the investigation was
not to aid in the administration’s decision-making process regarding the nomination.
In sum, the FBI, through the Hardy Declaration, has met its burden in showing that the
SBI was solicited in the service of presidential decision-making. Conversely, the plaintiffs have
not undermined the FBI’s agency declaration or demonstrated, with reference to equivocal social
media statements, that the SBI bore no relation to actual presidential decision-making.
C. PRESIDENTIAL COMMUNICATIONS PRIVILEGE WAS NOT WAIVED
Plaintiffs contend that, even if the presidential communications privilege applies to the
SBI File, the loan of that file to the Senate Judiciary Committee, which subsequently published a
summary on its website, waived any privilege. See Pls.’ Opp’n at 5–6. This argument fails in
the face of binding D.C. Circuit precedent that sharing privileged material with Congress does
not constitute waiver in the context of FOIA’s Exemption 5.
The D.C. Circuit addressed directly in Murphy v. Department of the Army, 613 F.2d
1151, 1152 (D.C. Cir. 1979), “whether the deliberative process privilege encompassed in
Exemption Five of the Act (5 U.S.C. s 552(b)(5)) was waived when the documents sought by
appellant were disclosed to a Member of Congress.” In that case, “[n]o specific request was
made” that the Member of Congress, who received the disclosure, “keep the document
confidential,” id. at 1158, but the Circuit nonetheless found “evident” that the disclosure did not
waive the privilege, id. at 1155.
Likewise, in Rockwell International Corporation v. United States Department of Justice,
235 F.3d 598, 604 (D.C. Cir. 2001), the Circuit noted Murphy’s holding “that the Army had not
21
waived Exemption 5 protection for an internal legal memorandum by sending it to a
congressman along with a letter,” and reaffirmed that disclosure to Congress did not constitute
waiver. In rejecting the argument that documents withheld under Exemption 5 but shared with
Congress should not be entitled to privilege, id. at 601, the Circuit explained that “since under
such an interpretation every disclosure to Congress would be tantamount to a waiver of all
privileges and exemptions, executive agencies would inevitably become more cautious in
furnishing sensitive information to the legislative branch—a development at odds with public
policy which encourages brought congressional access to governmental information,” id. at 604
(quoting Murphy, 613 F.2d at 1156 (footnote omitted)).
Pointing out that these precedents dealt with the deliberative process privilege rather than
the presidential communications privilege, plaintiffs argue these cases are distinguishable. Pls.’
Opp’n at 5–6. Plaintiffs’ effort to set aside these binding precedents is expressly foreclosed,
however. The Circuit has made clear that: “If release to a congressional body of a document
exempt from disclosure under the FOIA does not amount to a waiver of the governmental
privilege, it makes conceptually no difference whether the underlying exemption provision
relates to law enforcement, to the government’s internal deliberative processes, or to some other
privileged activity.” Murphy, 613 F.2d at 1157 n.16.
Indeed, the reasoning relied upon in both Murphy and Rockwell applies equally to the
presidential communications privilege. In both cases, the Circuit emphasized the FOIA
provision providing that “[t]his section is not authority to withhold information from Congress.”
Rockwell, 235 F.3d at 604 (quoting 5 U.S.C. § 552(d)). “If ‘disclosure of information to
Congress [were] disclosure to the whole world,’ … it would be ‘inconsistent with the obvious
purpose of the Congress [in 552(d)] to carve out for itself a special right of access to privileged
22
information,’ and would ‘effectively transform section [552(d)] into a congressional
declassification scheme, a result supported neither by the legislative history of the Act, nor by
general legal principles or common sense.’” Id. (quoting Murphy, 613 F.2d at 1155–56
(footnotes omitted) (alterations in original)). This logic applies with equal force to material
withheld under the presidential communications privilege. So too does the broader policy
concern that a rule construing the sharing of privileged material with Congress as a waiver of
privilege would inevitably discourage “‘broad congressional access to governmental
information.’” Id. (quoting Murphy, 613 F.2d at 1156).
Thus, applying Rockwell and Murphy, when the White House Counsel’s Office shared
the SBI File with the Senate Judiciary Committee on October 4, 2018, see Hardy Decl. ¶ 61, no
waiver of privilege under Exemption 5 occurred.
In a last gasp effort to establish waiver, plaintiffs further contend that the Senate
Judiciary Committee’s release, on October 4, 2018, of an executive summary of the SBI File
constituted waiver, “at least as to the same information.” Pls.’ Opp’n at 6; Pls.’ SOF ¶ 13; see
also Gov’t’s Resp. Pls.’ SOF ¶ 13(a) (acknowledging that Senate Judiciary Committee “released
a press release titled ‘Supplemental FBI Investigation Executive Summary,’ which purported to
identify people interviewed as part of the SBI.”). Privilege waiver is not so straightforwardly
simple as plaintiffs suggest, however.
“[W]hen information has been ‘officially acknowledged,’ its disclosure may be
compelled even over an agency’s otherwise valid exemption claim.” Wolf v. C.I.A., 473 F.3d
370, 378 (D.C. Cir. 2007) (quoting Fitzgibbon v. C.I.A., 911 F.2d 755, 765 (D.C. Cir. 1990)).
Yet an “official acknowledgement” is only recognized when: (1) “the information requested [is]
as specific as the information previously released; (2) “the information requested [] match[es] the
23
information previously disclosed”; and (3) “the information requested … [was] made public
through an official and documented disclosure.” Id. (quoting Fitzgibbon, 911 F.2d at 765). In
this context, “[t]he plaintiff bears the burden of identifying specific information that is already in
the public domain due to official disclosure.” Mobley v. C.I.A., 806 F.3d 568, 583 (D.C. Cir.
2015) (citing Wolf, 473 F.3d at 378; Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir.
1983).
Here, plaintiffs fail to meet this burden for two reasons. First, a simple math comparison
between the 1.5-page executive summary released by the Senate Judiciary Committee and the
527-page SBI File significantly undermines any suggestion that the summary is “as specific as”
or “match[es]” the File. Moreover, in substance, “[t]he executive summary consists of six
sentences … followed by a bulleted list identifying six individuals who were purportedly
interviewed.” Gov’t’s Opp’n at 15. This is hardly enough, since “[p]rior disclosure of similar
information does not suffice; instead, the specific information sought by the plaintiff must
already be in the public domain by official disclosure.” Wolf, 473 F.3d at 378 (italics in
original).
Second, disclosure by Congress alone cannot result in a waiver of privilege because “we
do not deem ‘official’ a disclosure made by someone other than the agency from which the
information is being sought.” Frugone v. C.I.A., 169 F.3d 772, 774 (D.C. Cir. 1999). Thus, the
D.C. Circuit has repeatedly confirmed that disclosure by Congress does not prevent the
Executive Branch from asserting privilege to withhold records under FOIA. See Fizgibbon, 911
F.2d at 765–66 (revealing information in congressional committee report did not waive privilege
under FOIA when information was not officially acknowledged); Salisbury v. United States, 690
F.2d 966, 971 (D.C. Cir. 1982) (discussing FOIA requested information in Senate report did not
24
waive privilege asserted by National Security Administration). Accordingly, the Senate
Judiciary Committee’s disclosure of an executive summary did not constitute waiver of any
extant Executive Branch privilege under FOIA’s Exemption 5.
D. PRESIDENTIAL COMMUNICATIONS PRIVILEGE APPLIES TO SBI
FILE IN FULL
Plaintiffs assert that the presidential communications privilege should not apply to
withhold parts of the SBI File for which the FBI failed to show receipt by the President. Pls.’
Opp’n at 7; see Hardy Decl. ¶ 59 (acknowledging that FBI was unable to confirm transmission to
the White House Counsel’s Office of “the FBI agents’ hand-written interview notes and a small
number of administrative note pages” in SBI File). In the FBI’s view, even if certain parts were
not sent to the White House, the privilege nonetheless applies because these parts contain
information reflected in other pages transferred to the White House Counsel’s Office and fully
covered by the privilege. Gov’t’s Opp’n at 16–17; Gov’t’s Mem. at 16–17. In particular, the
FBI points out that the hand-written interview notes of the FBI agents were used to create the
FD-302s sent to the White House as part of the SBI File. Consequently, the hand-written
interview notes “necessarily memorialize privileged communications,” Gov’t’s Opp’n at 17, and
“contain information that, if disclosed, would reveal privileged information contained in the
pages that were transmitted,” id. at 16.
The government is correct. FD-302s are “forms used by FBI agents to record
information which they obtain through witness interviews.” Citizens for Responsibility & Ethics
in Wash. v. Dep’t of Justice, 746 F.3d 1082, 1089 (D.C. Cir. 2014) (internal citation omitted).
Thus, the agents’ interview notes contain information reflected in the FD-302s in the SBI File,
which were “solicited and received” by the White House Counsel’s Office, and, as such, are
similarly protected. Recognizing the close linkage between agents’ notes and the FD-302
25
derived from those notes is supported by other decisions from this Court concluding that the
presidential communications privilege “extends to internal agency documents that memorialize
privileged communications between the agency and President or immediate White House
advisers.” Prop. of the People, Inc. v. Office of Mgmt. & Budget, 330 F. Supp. 3d 373, 387
(D.D.C. 2018) (citing Citizens for Responsibility & Ethics in Wash. v. Dep’t of Homeland
Security, No. Civ. 06-0173 (RJL), 2008 WL 2872183 (D.D.C. July 22, 2008); see also Protect
Democracy Project, Inc. v. U.S. Nat’l Sec. Agency, No. CV 17-1000 (CKK), 2020 WL 1331996,
at *5 (D.D.C. Mar. 23, 2020) (finding that FOIA’s Exemption 5 and the presidential
communications privilege protected a memorandum “memorializ[ing] … advice solicited by,
and provided to, the President that directly related to presidential decision-making…”).
Similarly, the D.C. Circuit has not hesitated to cloak notes with the same presidential
communications privilege applied to final recommendations sent to the President. See In re
Sealed Case, 121 F.3d at 758 (applying privilege to memoranda “authored by the White House
Counsel, Deputy White House Counsel, Chief of Staff and Press Secretary” that “were
communications connected to an official matter on which they were directly advising the
President,” as well as to “notes taken of meetings … at which these advisers were present, since
these notes reflect[ed] these advisers’ communications”).
Here, disclosing the agents’ interview notes used to compose the privileged FD-302s
would undermine the privilege by revealing sensitive information compiled in the service of
presidential decision-making. Similarly, disclosure of the administrative note pages that may or
may not have been faxed to the White House Counsel’s Office would “reveal privileged
information contained in the [SBI] file.” Gov’t’s Opp’n at 17. Forcing limited disclosure of
materials underlying the SBI File would be especially anomalous in this context, since “the
26
presidential communications privilege applies to documents in their entirety.” In re Sealed Case,
121 F.3d at 745; see also Judicial Watch, 365 F.3d at 1113–14 (restating this rule). For these
reasons, the privilege applies to the SBI File in full and covers those pages of hand-written
interview notes and administrative notes containing information presented elsewhere in the File,
even if the FBI is unable to establish that those notes were transmitted to the White House
Counsel’s Office.
E. PRESIDENT’S PERSONAL INVOCATION OF PRIVILEGE NOT
REQUIRED
Finally, plaintiffs argue that personal invocation by the President is required to rely upon
the presidential communications privilege and since no such invocation occurred here, this
privilege is inapplicable. Pls.’ Opp’n at 7. In making this argument, plaintiffs concede that they
rely on “case law outside the FOIA context suggest[ing] that the President must personally assert
the Constitutional privilege.” Id; id. at 9 (citing In re Sealed Case, 121 F.3d at 745, n.16
(discussing but not deciding whether personal invocation is required to assert the presidential
communications privilege outside of the FOIA context). This argument is easily dispatched.
To qualify for withholding under Exemption 5, records “must fall within the ambit of a
privilege against discovery,” Klamath, 532 U.S. at 8, and not be “‘routinely’ or ‘normally’
disclosed upon a showing of relevance,” F.T.C. v. Grolier, Inc., 462 U.S. 19, 26 (1983) (quoting
NLRB v. Sears, Roebuck, 421 U.S. 132, 148–49 (1975)). Put another way, Exemption 5
privileges are “categorical,” id. at 28, and “[a]n exemption analysis that yields a different
outcome depending on the way in which a particular document is invoked draws FOIA away
from the desired categorical approach,” Lardner v. U.S. Dep’t of Justice, No. Civ. 03-0180
(JDB), 2005 WL 758267, at *8 (D.D.C. Mar. 31, 2005). The requirements for application of a
privilege under Exemption 5 thus differ from those of the civil discovery context. As the
27
Supreme Court has explained, “[i]t is not difficult to imagine litigation in which one party’s need
for otherwise privileged documents would be sufficient to override the privilege but that does not
remove the documents from the category of the normally privileged.” Grolier, 462 U.S. at 28
(italics in original).
A thorough analysis of the position put forward by plaintiffs here—that personal
invocation of the presidential communications privilege should be imported into the FOIA
analysis—was fully considered by Judge Bates in Lardner v. Department of Justice, and rejected
“[f]or several reasons.” 2020 WL 758267 at *7. These reasons include: (1) “'fall[ing] within the
ambit’ of the presidential communications privilege,” as the Supreme Court in Klamath
discussed, turns “on the content or nature of a document generally,” and “not [] also on
the manner in which the exemption is raised in a particular request,” id. (emphasis in
original); (2) nothing “in the text of the statute or elsewhere [indicates] that Congress
anticipated—much less demanded—that the decision to withhold documents under Exemption
5 would need to be made personally by the head of the agency (in this case the President),” id. at
*8; (3) relatedly, no other FOIA exemption operates that way, id.; (4) “requiring the President of
the United States to personally examine the documents at issue and then invoke the presidential
communications privilege every time a citizen seeks presidential records through FOIA would
expose the President to a considerable burden,” id. at *9; (5) this burden would be exacerbated
when FOIA requests “encompass documents from all past administrations,… [and] the President
would have no familiarity,” id.; and (6) “[t]he Court is unconvinced that Congress desired such a
result” when “the legislative history of FOIA shows (and the Supreme Court has held) that
Congress specifically intended the President of the United States and his immediate staff to be
immune from FOIA requests,” id. These considerations compelled the conclusion that
28
“Plaintiff's view finds no warrant in the statute, the legislative history, or legal precedent, and
would chain the President to a stack of documents for review at the whim of a FOIA requestor.”
Id. at *10.
This Court agrees with the sound reasoning in Lardner, as have other Judges on this
Court who have consistently rejected the argument that personal invocation is required to apply
the presidential communications privilege in the context of Exemption 5. See, e.g., Loving v.
U.S. Dep’t of Def., 496 F. Supp. 2d 101, 108 (D.D.C. 2007), aff’d sub nom. Loving, 550 F.3d at
32 (“personal invocation is not required as to FOIA requests.”); Elec. Privacy Info. Ctr. v. Dep’t
of Justice, 584 F. Supp. 2d 65, 80 (D.D.C. 2008) (“There is no indication in the text of FOIA that
the decision to withhold documents pursuant to Exemption 5 must be made by the President.”);
Am. Ctr. for Law & Justice v. U.S. Dep’t of State, 330 F. Supp. 3d 293, 309 (D.D.C. 2018) (“‘the
presidential communications privilege does not need to be asserted by the President himself’ in
this [FOIA] case [concerning Exemption 5]”) (quoting Elec. Privacy Info. Ctr., 584 F. Supp. 2d
at 80)).
Accordingly, personal invocation by the President of the presidential communications
privilege is not required in the context of FOIA’s Exemption 5.
IV. CONCLUSION
For the foregoing reasons, the FBI’s motion for summary judgment is GRANTED and
plaintiffs’ cross-motion for summary judgment is DENIED. An order consistent with this
memorandum opinion will be entered contemporaneously.
Date: May 7, 2020
__________________________
BERYL A. HOWELL
Chief Judge
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