America First Legal Foundation v. U.S. Department of Agriculture ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICA FIRST LEGAL FOUNDATION,
Plaintiff,
Civil Action No. 22-3029 (BAH)
v.
Judge Beryl A. Howell
U.S. DEPARTMENT OF AGRICULTURE,
et al.
Defendants.
MEMORANDUM OPINION
Plaintiff, America First Legal Foundation, challenges the response of defendants,
fourteen federal agencies, to its June 10, 2022 requests submitted pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, for the strategic plans each had prepared in response
to an Executive Order regarding promoting access to voting. See generally Compl., ECF No. 1.
The Executive Order instructed each agency to prepare such a plan evaluating ways in which the
agency could promote voter registration and participation, and to submit the plan to the White
House for consideration. Upon receiving plaintiff’s FOIA requests, defendant agencies
concluded that the strategic plans were exempt from disclosure under FOIA Exemption 5, as
they were covered by the presidential communications privilege. Defendants have now moved
for summary judgment. Defs.’ Mot. Summ. J., ECF No. 21. For the reasons set forth below,
defendants’ motion is granted.
I. BACKGROUND
Pertinent background underlying plaintiff’s FOIA requests is briefly described, followed
by review of the requests and each federal agency defendant’s response thereto, both before and
after initiation of this lawsuit.
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A. President Biden’s Executive Order 14019
In early 2021, President Biden issued Executive Order 14019, Exec. Order No. 14,019,
Promoting Access to Voting, 86 Fed. Reg. 13623 (Mar. 7, 2021) (“EO 14019”). The Order
tasked federal agencies with “consider[ing] ways to expand citizens’ opportunities to register to
vote and to obtain information about, and participate in, the electoral process.” Id. at 13623. To
that end, the head of each federal agency was to “evaluate ways in which the agency can, as
appropriate and consistent with applicable law, promote voter registration and voter
participation.” Id. Specifically, each agency was asked to consider ways that it can “provide
relevant information . . . about how to register to vote, how to request a vote-by-mail ballot, and
how to cast a ballot in upcoming elections,” “facilitate seamless transition from agencies’
websites directly to State online voter registration systems or appropriate Federal websites,”
“provide access to voter registration services and vote-by-mail ballot application,” “promote and
expand access to multilingual voter registration and election information,” and “promote equal
participation in the electoral process for all eligible citizens of all backgrounds.” Id. at 13623–
24. The Order required each agency to submit to the Assistant to the President for Domestic
Policy, within 200 days of the Order’s issuance, “a strategic plan outlining the ways
identified . . . that the agency can promote voter registration and voter participation.” Id. at
13624.
As instructed by EO 14019, the fourteen agencies named as defendants in this case—
namely, the U.S. Department of Agriculture (“USDA”), U.S. Department of Education (“ED”),
U.S. Department of Energy (“DOE”), U.S. Environmental Protection Agency (“EPA”), U.S.
Department of Health and Human Services (“HHS”), U.S. Department of Homeland Security
(“DHS”), U.S. Department of the Interior (“DOI”), U.S. Department of Labor (“DOL”), U.S.
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Small Business Administration (“SBA”), U.S. Department of State (“DOS”), U.S. Department of
Transportation (“DOT”), U.S. Department of the Treasury (“Treasury”), U.S. Department of
Veterans Affairs (“VA”), and U.S. Department of Housing and Urban Development (“HUD”)
(collectively, “defendants”)—submitted the requested strategic plans to the Assistant to the
President for Domestic Policy and head of the Domestic Policy Council (“DPC”) within the
White House, Ambassador Susan Rice. Defs.’ Mot., Ex. B, Decl. of White House Special
Counsel Richard A. Sauber (“Sauber Decl.”) ¶¶ 7, 12, ECF No. 21-2. The strategic plans were
initially reviewed by Ambassador Rice’s staff members, who then compiled information for
Ambassador Rice’s and senior White House advisors’ use in creating briefing materials and
formulating advice for the President. Id. ¶ 12.
B. Plaintiff’s FOIA Requests
On June 10, 2022, plaintiff submitted the at-issue FOIA requests to each defendant.
Defs.’ Statement of Material Facts Not in Dispute (“Defs.’ SMF”) ¶ 2, ECF No. 21-16. The
requests sought production of each agency’s strategic plan as submitted to the White House
pursuant to EO 14019. Id. Defendants Treasury, VA, and HUD gave initial responses to the
requests by informing plaintiff that responsive documents were located but were withheld in full
under FOIA Exemption 5. Defs.’ SMF ¶ 3; see also Defs.’ Mot., Ex. I, Decl. of Ryan Law
(“Ryan Law Decl.”) ¶ 5, ECF No. 21-9; id., Ex. J, Decl. of Lyndon B. Johnson (“Johnson Decl.”)
¶ 13, ECF No. 21-10; id., Ex. K, Decl. of Benjamin B. Klubes (“Klubes Decl.”) ¶ 6, ECF No. 21-
11. Plaintiff administratively appealed all three agencies’ initial decisions. Ryan Law Decl. ¶ 5;
Johnson Decl., ¶ 14; Klubes Decl. ¶ 7. In September and October, 2022, Treasury, VA, and
HUD issued final agency decisions informing plaintiff that these agencies, too, would withhold
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the responsive documents under Exemption 5. Ryan Law Decl. ¶ 5; Johnson Decl., ¶ 15; Klubes
Decl. ¶ 9.
Defendant SBA initially responded to plaintiff’s request on June 24, 2022, Defs.’ SMF
¶ 4; see also Defs.’ Mot., Ex. A, Decl. of Eric S. Benderson (“Benderson Decl.”) ¶ 5, ECF No.
21-1, after interpreting the request as seeking an “approved” strategic plan representing actions
the agency had “decided to implement” but, given that no such plan existed, SBA informed
plaintiff that responsive document was located. Benderson Decl. ¶ 5. Plaintiff then filed an
administrative appeal and, on December 20, 2022, SBA corrected its response by informing
plaintiff that a responsive document had been located, but, like other agencies, SBA was
withholding it under Exemption 5. Defs.’ SMF ¶ 4; see also Benderson Decl. ¶¶ 7, 12.
By the time plaintiff initiated the instant suit, the remaining defendants, USDA, ED,
DOE, EPA, HHS, DHS, DOI, DOL, DOS, and DOT, had not yet provided a substantive response
to the requests. Defs.’ SMF ¶ 5.
C. Procedural History and Withholdings of Requested Records
On October 6, 2022, plaintiff initiated the instant litigation, challenging defendants’
responses, or lack thereof, to the FOIA requests at issue. Defs.’ SMF ¶ 6; see also Compl., ECF
No. 1; Compl., Am. First Legal Found. v. U.S. Dep’t of Treasury, No. 22-cv-3034 (BAH)
(D.D.C. 2022), ECF No. 1 (“Treasury Compl.”). Plaintiff initially brought those challenges in
two separate suits. The first targeted those defendants who had responded by withholding the
responsive document, namely Treasury, VA, and HUD. Defs.’ SMF ¶ 7; see also Treasury
Compl. ¶¶ 10–11, 13. The second––the instant case––named defendant SBA, which had initially
indicated it could not locate any responsive document, and the remaining defendant agencies that
had not responded to plaintiff’s requests. Defs.’ SMF ¶ 7; see also Compl. ¶¶ 12–13.
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After defendants filed answers to both complaints, defendants’ counsel informed
plaintiff’s counsel that the remaining defendants had searched for and located each agency’s
requested strategic plan, which was being withheld by each agency in full under FOIA
Exemption 5. Defs.’ SMF ¶ 7; see also Joint Mot. to Consolidate Cases at 2, ECF No. 19.
Specifically, all defendants withheld the responsive document based on Exemption 5’s
presidential communications privilege. Benderson Decl. ¶¶ 13, 15; Defs.’ Mot., Ex. C, Decl. of
Alexis R. Graves (“Graves Decl.”) ¶¶ 8, 16, ECF No. 21-3; id., Ex. D, Decl. of Catherine
McConnell (“McConnell Decl.”) ¶ 11, ECF No. 21-4; id., Ex. E, Decl. of Rosemary Law
(“Rosemary Law Decl.”) ¶ 12, ECF No. 21-5; id., Ex. F, Decl. of Leah Fairman (“Fairman
Decl.”) ¶ 10, ECF No. 21-6; id., Ex. G, Decl. of Katherine Swain-Smith (“Swain-Smith Decl.”)
¶¶ 10–11, ECF No. 21-7; id., Ex. H, Decl. of Vincent White (“White Decl.”) ¶ 9, ECF No. 21-8;
Ryan Law Decl. ¶¶ 6, 11; Johnson Decl. ¶¶ 15, 17; Klubes Decl. ¶¶ 16, 18–19; Defs.’ Mot., Ex.
L, Decl. of Susan C. Weetman ¶ 18, ECF No. 21-12; id., Ex. M, Decl. of Alesia Y. Williams
¶ 20, ECF No. 21-13; id., Ex. N, Decl. of Susan Beard ¶¶ 11, 13, ECF No. 21-14; id., Ex. O,
Decl. of Victoria Arroyo ¶ 15, ECF No. 21-15. Some defendants provided additional
justification for withholdings based on Exemption 5’s deliberative process privilege. Benderson
Decl. ¶¶ 13, 17–25; Graves Decl. ¶¶ 8, 18–21; McConnell Decl. ¶¶ 12–15; Rosemary Law Decl.
¶¶ 15–19; Fairman Decl. ¶¶ 12–19; Swain-Smith Decl. ¶¶ 12–21; White Decl. ¶¶ 11–13; Ryan
Law Decl. ¶¶ 6, 13–21; Johnson Decl. ¶¶ 15, 18–22; Klubes Decl. ¶¶ 16, 20–26.
Given now entirely overlapping factual circumstances and legal issues, the two lawsuits
were consolidated upon the parties’ joint motion. Joint Mot. to Consolidate Cases at 1–2; Min.
Order (Nov. 29, 2022). Defendants have now moved for summary judgment, Defs.’ Mot., which
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motion is ripe for resolution, see Defs.’ Reply Supp. Defs.’ Mot. Summ. J. (“Defs.’ Reply”),
ECF No. 30; Pl.’s Mem. Supp. Pl.’s Sur-Reply (“Pl.’s Sur-Reply”), ECF No. 33.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, “[a] party is entitled to summary judgment
only if there is no genuine issue of material fact and judgment in the movant’s favor is proper as
a matter of law.” Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261, 1267 (D.C. Cir.
2018) (quoting Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805
(D.C. Cir. 2006)); see also 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
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. Drug Enf't Admin., 865
F.3d 730, 734–35 (D.C. Cir. 2017) (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.’” (omission in
original) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978))). Most FOIA cases “can
be resolved on summary judgment.” Brayton v. Off. of U.S. Trade Representative, 641 F.3d 521,
527 (D.C. Cir. 2011).
“The fundamental principle animating FOIA is public access to government documents.”
Waterman v. Internal Revenue Serv., 61 F.4th 152, 156 (D.C. Cir. 2023) (quoting Valencia-
Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)) accord DiBacco v. U.S. Army
(“DiBacco I”), 795 F.3d 178, 183 (D.C. Cir. 2015). Agencies are therefore statutorily mandated
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to “make . . . records promptly available to any person” who submits a request that “reasonably
describes such records” and “is made in accordance with [the agency’s] published rules.” 5
U.S.C. § 552(a)(3)(A). “Congress, however, did not ‘pursue transparency at all costs[;]’ [r]ather,
it recognized that ‘legitimate governmental and private interests could be harmed by release of
certain types of information.’” Citizens for Resp. & Ethics in Washington v. United States Dep't
of Just. (“CREW II”), 45 F.4th 963, 967 (D.C. Cir. 2022) (first quoting Hall & Assocs. v. EPA,
956 F.3d 621, 624 (D.C. Cir. 2020); and then quoting AquAlliance v. U.S. Bureau of
Reclamation, 856 F.3d 101, 102 (D.C. Cir. 2017)). To balance those competing interests, “FOIA
exempts nine categories of documents from ‘the government's otherwise broad duty of
disclosure.’” Waterman, 61 F.4th at 156 (quoting AquAlliance, 856 F.3d at 103). “[T]hese
limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant
objective of the Act.” Dep’t of 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). When an agency invokes an exemption to disclosure, district courts must
“determine de novo whether non-disclosure was permissible.” Elec. Priv. Info. Ctr. v. U.S. Dep’t
of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015). The statute “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 Resp. & Ethics in Washington v. U.S.
Dep’t of Justice, 922 F.3d 480, 487 (D.C. Cir. 2019) (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) (“The Government bears the burden of
establishing that the exemption applies.”); DiBacco v. U.S. Dep’t of Army (“DiBacco II”), 926
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F.3d 827, 834 (D.C. Cir. 2019) (“‘An agency withholding responsive documents from a FOIA
release bears the burden of proving the applicability of claimed exemptions,’ typically through
affidavit or declaration.” (quoting DiBacco I, 795 F.3d at 195)).
The agency may sustain “this burden ‘by submitting a Vaughn index, along with
affidavits from agency employees that 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.’” Waterman, 61 F.4th at 158 (quoting Am. Immigr. Laws. Ass’n v.
Exec. Off. Immigr. Rev., 830 F.3d 667, 673 (D.C. Cir. 2016)); see also Poitras v. Dep’t of
Homeland Sec., 303 F. Supp. 3d 136, 150 (D.D.C. 2018) (“An agency may carry its burden of
showing an exemption was properly invoked by submitting sufficiently detailed affidavits or
declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the
government has analyzed carefully any material withheld and provided sufficient information as
to the applicability of an exemption to enable the adversary system to operate.”). “‘Ultimately,
an agency’s justification for invoking a FOIA exemption is sufficient if it appears “logical” or
“plausible.”’” Judicial Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (per
curiam) (quoting ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)).
III. DISCUSSION
FOIA Exemption 5, the only exemption at issue in this case, 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
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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 second condition
“incorporate[s] privileges . . . recognized as components of executive privilege, including the
deliberative process privilege and presidential communications privilege.” Protect Democracy
Project, Inc. v. Nat’l Sec. Agency, 10 F.4th 879, 885 (D.C. Cir. 2021); see also Judicial Watch,
913 F.3d at 1109; Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015).
Here, the parties only dispute whether the second condition for invocation of Exemption 5 is
satisfied, as required to justify the agencies’ withholding their strategic plans.
The strategic plans at issue in this case contain both existing agency actions and pre-
decisional and deliberative policies or ideas. See Defs.’ Mem. P. & A. Supp. Mot. Summ. J.
(“Defs.’ Mem.”) at 11–13, ECF No. 21; Pl.’s Opp’n Defs.’ Mot. Summ. J. (“Pl.’s Opp’n”) at 4–
5, ECF No. 26. All defendants invoke Exemption 5 based on the applicability of the presidential
communications privilege, which is “a presumptive privilege for Presidential communications.”
Protect Democracy Project, 10 F.4th at 885 (quoting United States v. Nixon, 418 U.S. 683, 708
(1974)); see Defs.’ Mem. at 6–10. Defendants contend that the strategic plans “fall squarely
within the scope of the presidential communications privilege,” because they were solicited by
the President through EO 14019 and received by immediate White House advisors and their staff
members, namely Ambassador Susan Rice and her staff, for briefing and formulating advice to
the President regarding voting rights issues. See Defs.’ Mem. at 6–8. Relying on both the text of
EO 14019 and the White House Special Counsel’s declaration, defendants emphasize that
President Biden expressly requested the at-issue strategic plans as part of his direct presidential
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decision-making on his administration’s strategy on voting access. See Defs.’ Reply at 1–3.
Defendants argue more broadly that, as a clear and consistent legal principle followed by the
D.C. Circuit, the presidential communications privilege applies to entire documents, including
factual portions. See Defs.’ Mem. at 6–7; Defs.’ Reply at 3–5. Thus, they contend that the
strategic plans are privileged in their entirety and warrant no segregability analysis. See Defs.’
Mem. at 6–7; Defs.’ Reply at 3–5. Disclosure of the strategic plans, defendants suggest, would
lead to specific foreseeable harm by undermining the quality of presidential decision-making and
causing public confusion about the President’s policies and positions on voting rights issues. See
Defs.’ Mem. at 14–16.
Several defendants, namely SBA, USDA, ED, DHS, DOI, DOL, DOT, Treasury, VA,
and HUD, also invoke the deliberative process privilege to justify additional, overlapping
withholdings of portions of their strategic plans representing policies that have not been
implemented or ideas that have been decided against. See id. at 10–14. These defendants argue
that disclosure of pre-decisional and deliberative portions of the strategic plans would cause
foreseeable harm in terms of public confusion about the agencies’ policies and chilling effects on
the agencies’ candid correspondence with the White House. See id. at 14–15.
Plaintiff, on the other hand, primarily focuses on final, post-decisional portions of the
strategic plans and argues that they do not call for further direct presidential decision-making and
therefore cannot be shielded by the presidential communications privilege. See Pl.’s Opp’n at
12–14. Plaintiff draws a distinction between section 3 of EO 14019, which requested the
strategic plans, and section 6, which separately sought presidential “recommendations” on
expanding voting access for federal employees. See Pl.’s Sur-Reply at 1–4. Based on this
purported textual distinction, plaintiff contends that the strategic plans were requested as reports
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of agency plans and actions, not as recommendations as part of an ongoing presidential decision-
making process. See id. Plaintiff also argues that the strategic plans have not been used in actual
communications with the President and thus fall outside the scope of the presidential
communications privilege. See id. at 4–5.
Plaintiff does not address defendants’ additional, overlapping withholdings based on the
deliberative process privilege. See generally Pl.’s Opp’n; Pl.’s Sur-Reply. Instead, plaintiff
focuses on attacking application of the presidential communications privilege to entire
documents, particularly the final, post-decisional portions, and effectively calls for a
segregability analysis. See Pl.’s Opp’n at 12–17. Plaintiff concedes that the D.C. Circuit has
taken an entire-document approach to applying the presidential communications privilege but
contends that the approach is “dicta” and yields to the “key limiting principle” that the privilege
can solely protect confidential presidential decision-making processes. See id. at 15–17. The
entire-document rule should not be applied in this case, plaintiff argues, because that would
result in shielding final agency policies and actions from public scrutiny, which is tantamount to
“undermin[ing] FOIA” and “creat[ing] secret law.” See id. Plaintiff further contends that
defendants fail to demonstrate the specific foreseeable harm arising from disclosure of completed
agency actions, having only relied on “generic” and “boilerplate” statements from a single
affidavit from the White House Special Counsel. See id. at 18–21.
Defendants have the better arguments under binding precedent, for the reasons explained
below.
A. PRESIDENTIAL COMMUNICATIONS PRIVILEGE APPLIES TO THE
STRATEGIC PLANS IN FULL
The presidential communications privilege “applies to ‘documents or other materials that
reflect presidential decisionmaking and deliberations and that the President believes should
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remain confidential.’” Protect Democracy Project, 10 F.4th at 885 (quoting In re Sealed Case,
121 F.3d 729, 744 (D.C. Cir. 1997)). This species of executive privilege thus “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 v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (alteration and
omission in original) (quoting Judicial Watch, Inc. v. Dep’t. of Justice, 365 F.3d 1108, 1114
(D.C. Cir. 2004)). The presidential communications privilege is broader than the deliberative
process privilege and encompasses final or post-decisional portions as well as deliberative or
advice portions of documents. In re Sealed Case, 121 F.3d at 745 (citing Nixon, 418 U.S. at
709). As the D.C. Circuit has explained, the former privilege “covers documents reflecting
‘presidential decisionmaking and deliberations,’ regardless of whether the documents are
predecisional or not, and it covers the documents in their entirety.” Loving, 550 F.3d at 37–38
(quoting In re Sealed Case, 121 F.3d at 744–45); accord Protect Democracy Project, 10 F.4th at
885–86. Given that the presidential communications privilege affords greater protection against
disclosure than the deliberative process privilege, a court need only address the latter if the
withheld document is determined not to find protection under the former. In re Sealed Case, 121
F.3d at 746.
The purpose of the presidential communications privilege is to “preserve[ ] the
President’s ability to obtain candid and informed opinions from his advisors and to make
decisions confidentially.” Loving, 550 F.3d at 37. As such, the privilege protects “the need for
confidentiality to ensure that presidential decisionmaking 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
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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,
711); 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.”).
1. Presidential Communications Privilege Protects the Strategic Plans Because
They Were Solicited by President Biden and Received by His Immediate White
House Advisors to Formulate Advice for Direct Presidential Decision-Making on
Voting Rights Issues
The presidential communications privilege applies in this case because the strategic plans
were solicited by President Biden through EO 14019 and received by his immediate White
House advisors for use in briefing and advising him on voting rights issues. As part of the
“policy of [his] Administration to promote and defend the right to vote,” the President tasked the
agencies with “outlining the ways identified under [the required] review that [they] can promote
voter registration and voter participation.” EO 14019 at 13623, 13624. The Order included
specific instructions for each agency to submit “a strategic plan” to the Assistant to the President
for Domestic Policy. Id. at 13624. Pursuant to the Order, the at-issue strategic plans were
submitted to Ambassador Rice, who was and remains the Assistant to the President for Domestic
Policy as well as head of the DPC, which “drives the formulation and implementation of the
President’s domestic policy agenda, including advice on voting rights matters.” Sauber Decl.
¶ 7. Ambassador Rice’s staff members compiled information from the strategic plans, and senior
White House advisors relied on the information to brief the President on agency actions and
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proposals and to advise the President on further executive decision-making regarding voting
matters. Id. ¶ 12. Thus, the strategic plans were “solicited” by the President and “received” by
his “immediate White House advisers [with] . . . broad and significant responsibility for
investigating and formulating the advice to be given the President,” falling squarely within the
protective scope of the presidential communications privilege. Loving, 550 F.3d at 37 (alteration
in original) (quoting Judicial Watch, 365 F.3d at 1114).
Plaintiff counters that “[t]he President had already made his decisions [regarding voting
rights issues], publicly announced them, and directed the agencies to act,” making the strategic
plans merely “reports on final [agency] actions” that had nothing further to do with confidential
presidential decision-making. Pl.’s Opp’n at 12. Plaintiff supports this argument by noting the
absence of the word “recommendations” or other advice-related language in section 3 of EO
14019’s request for submission of strategic plans. Pl.’s Sur-Reply at 1–4. Analogizing to the
Supreme Court’s directives regarding the interpretation of agency regulations, plaintiff then
argues that no deference should be given to the White House Special Counsel’s affidavit
explaining the meaning of section 3 where the executive order’s language is “unambiguous” in
not soliciting advice or recommendations. Id.In reality, however, section 3 of EO 14019 is not plainly “unambiguous,” and plaintiff’s
reading that this provision constitutes a final presidential directive for agencies to act and report
back only on already completed actions is not an obvious one. Section 2 of EO 14019 suggests
that the President made all solicitations and requests under the executive order as part of “the
policy of [his] Administration to promote and defend the right to vote.” EO 14019 at 13623.
Consistent with this language, the Special Counsel’s affidavit suggests that “[t]he White House
solicited the strategic plans in order to inform future policy developments on voting access.”
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Sauber Decl. ¶ 11. As defendants rightfully note, within this context of on-going executive
policymaking, section 3 is more reasonably read as tasking agencies to brainstorm and identify
ways that they “can promote voter registration and voter participation” with future possible
actions, not merely to report on actions already taken. EO 14019 at 13624 (emphasis added).
Indeed, upon making the request for submission, the White House also provided agencies with a
template for developing their strategic plans. Sauber Decl. ¶ 8. Tellingly, the template included
disclaimers that “[l]isting an action in this strategic plan does not commit your agency to
implementing the action” and that “most agencies will pursue additional actions not listed in this
plan.” Id. (alteration and emphasis in original). No part of section 3 or the affidavit suggests
that the President was requesting “[a] catalog of final agency policies and actions.” Pl.’s Opp’n
at 12. Instead, the record consistently indicates that the President had asked agencies to submit a
subset of potential actions and ideas that may inform the policy developments of his
administration. Thus, the strategic plans, even if some of them describe existing agency actions,
are not “information regarding governmental operations that do not call ultimately for direct
decisionmaking by the President.” In re Sealed Case, 121 F.3d at 752. Protecting the strategic
plans under the presidential communications privilege does not create an “endless feedback
loop” shrouding agency actions as plaintiff warns, see Pl.’s Opp’n at 13, because the protective
scope remains limited to information directly relevant for presidential decision-making.
Plaintiff further contends that defendants cannot extend the presidential communications
privilege to cover strategic plans that “might hypothetically be used in ‘potential future decisions
on voting rights issues.’” Pl.’s Sur-Reply at 4 (emphasis omitted) (quoting Defs.’ Reply at 2).
As support for this contention, plaintiff attempts to distinguish this case from Loving and
Judicial Watch (D.C. Cir. 2004), both upholding applications of the privilege, by asserting that
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the strategic plans were never used in actual communications with the President. Id. at 4–5.
Once again, this is inaccurate. The Special Counsel’s affidavit states in past tense that “senior
White House advisors relied on the strategic plans in formulating advice . . . [that] informed the
President on the extent of agency actions and proposals on relevant voting matters and on areas
where further Executive Branch action might be needed or considered within the scope of the
President’s executive authority.” Sauber Decl. ¶ 12. The President expressly solicited the
strategic plans through his executive order and then communicated with his immediate advisors
about information compiled from the strategic plans. As the D.C. Circuit held in Loving, the
strategic plans are privileged because “the President solicited and received [them] in a manner
sufficient to bring [them] within the presidential communications privilege,” and they “d[id] not
lose [their] privileged status simply because [they] traveled up the chain of command before the
President received [them].” 550 F.3d at 40.
The strategic plans thus fall squarely into the ambit of the presidential communications
privilege, and plaintiff cannot avoid this conclusion by mischaracterizing the text of EO 14019
and the ongoing nature of the President’s decision-making process regarding voting rights issues.
2. Presidential Communications Privilege Protects the Strategic Plans in Their
Entirety
Plaintiff next contends that even if applicable, the presidential communications privilege
should not shield the strategic plans in their entirety, but that position runs contrary to the proper
application of the privilege as covering entire documents. The entire-document rule for applying
the presidential communications privilege is not “dicta,” as plaintiff characterizes it, but
“precedent” consistently applied by the D.C. Circuit and courts in this district. Protect
Democracy Project, 10 F.4th at 887 (“[U]nder existing precedent, the presidential
communications privilege applies to documents in their entirety.” (internal quotation omitted));
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see also, e.g., In re Sealed Case, 121 F.3d at 744–45 (holding that “unlike the deliberative
process privilege, the presidential communications privilege applies to documents in their
entirety, and covers final and post-decisional materials as well as pre-deliberative ones”); Loving,
550 F.3d at 37–38 (holding that the presidential communications privilege “covers [] documents
in their entirety,” “regardless of whether the documents are predecisional or not”); Judicial
Watch, 913 F.3d at 1111 (holding that “[o]nce the [presidential communications] privilege
applies, the entirety of the document is protected”); Ctr. for Effective Gov’t v. U.S. Dep’t of
State, 7 F. Supp. 3d 16, 22 (D.D.C. 2013) (acknowledging the entire-document principle);
Buzzfeed, Inc. v. FBI, 613 F. Supp. 3d 453, 466–67 (D.D.C. 2020) (applying the entire-document
principle); Cause of Action Inst. v. U.S. Dep’t of Com., No. 19-cv-2698 (DLF), 2022 WL
4130813, at *5 (D.D.C. Sept. 12, 2022) (same). The D.C. Circuit has emphasized that because
the presidential communications privilege must ensure the President’s “full access to facts,” the
privilege must protect factual information “revelatory of the President’s deliberations,” including
reports regarding implementation of a particular course of action that the President has decided
to pursue. In re Sealed Case, 121 F.3d at 745–46.
Plaintiff argues that the entire-document principle is “not an iron rule,” and that portions
of the strategic plans stating final or completed agency actions are unrelated to direct presidential
decision-making and thus segregable from the rest of the strategic plans. Pl.’s Opp’n at 15–17.
This argument is untenable, for it mischaracterizes the entire-document rule as well as the
strategic plans’ role in the President’s decision-making process. As explained supra, both EO
14019 and the White House Special Counsel’s affidavit show that the President solicited the
strategic plans and received their information as an integral part of his direct presidential
policymaking on voting rights issues. See supra Part III.A.1. Furthermore, as defendants
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rightfully note, plaintiff has not identified a single case where a segregability analysis is applied
to materials otherwise directly related to confidential presidential decision-making. Defs.’ Reply
at 4–5; see generally Pl.’s Opp’n; Pl.’s Sur-Reply. This is unsurprising, for the D.C. Circuit has
squarely rejected similar attempts to apply segregability analysis to documents protected by the
presidential communications privilege. See Protect Democracy Project, 10 F.4th at 888
(explaining that “FOIA’s segregability requirement presumes that some part of a document is not
exempt,” and therefore cannot apply as the presidential communications privilege, by its nature,
covers an entire document). Thus, the strategic plans, including portions stating existing agency
actions, are protected by the presidential communications privilege in their entirety. 1
B. FORESEEABLE HARM
Plaintiff next contends that, even if the at-issue strategic plans are exempt from
disclosure, defendants have not met their burden to show that disclosure “will foreseeabl[y] harm
the interests protected by the presidential communications privilege.” Pl.’s Opp’n at 18. The
FOIA Improvement Act provides that “[a]n agency shall withhold information . . . only if the
agency reasonably foresees that disclosure would harm an interest protected by” one of the nine
FOIA exemptions. 5 U.S.C. § 552(a)(8)(A). This provision requires agencies withholding
information under an exemption to show not only that a withheld record “falls within a FOIA
exemption,” but also that “the agency ‘reasonably foresees that disclosure would harm an interest
protected by [the] exemption.’” Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364, 370
(D.C. Cir. 2020) (alteration in original) (quoting 5 U.S.C. § 552(a)(8)(A)(i)(I)).
1
Accordingly, defendants’ additional argument for partial, overlapping withholdings of the strategic plans
based on the deliberative process privilege need not be addressed. See In re Sealed Case, 121 F.3d at 746(concluding that deliberative process argument did not need to be addressed after finding full coverage of the at-
issue document under the presidential communications privilege); see also Cause of Action Inst. v. U.S. Dep’t of
Com., 513 F. Supp. 3d 116, 130 n.3 (D.D.C. 2021) (same); Cause of Action Inst., 2022 WL 4130813, at *9 n.6
(same).
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An agency successfully makes this second, “heightened” showing, Judicial Watch, Inc. v.
Dep’t of Com., 375 F. Supp. 3d 93, 100 (D.D.C. 2019), by “‘identify[ing] specific harms to the
relevant protected interests that it can reasonably foresee would actually ensue from disclosure of
the withheld materials’ and ‘connect[ing] the harms in [a] meaningful way to the information
withheld,’” Ctr. for Investigative Reporting v. U.S. Customs & Border Prot., 436 F. Supp. 3d 90,
106 (third alteration in original) (quoting Judicial Watch, Inc. v. Dep’t of Justice, No. 17-cv-
0832 (CKK), 2019 WL 4644029, at *5 (D.D.C. Sept. 24, 2019)); see also H.R. Rep. No. 114-
391, at 9 (2016) (“An inquiry into whether an agency has reasonably foreseen a specific,
identifiable harm that would be caused by a disclosure would require the ability to articulate both
the nature of the harm and the link between the specified harm and specific information
contained in the material withheld.”). Agencies therefore “must provide more than ‘nearly
identical boilerplate statements’ and ‘generic and nebulous articulations of harm.’” Ctr. for
Investigative Reporting, 436 F. Supp. 3d at 106 (quoting Judicial Watch, 2019 WL 4644029, at
*4–5).
Of course, the agency’s burden to demonstrate that harm would result from disclosure
may shift depending on the nature of the interests protected by the specific exemption with
respect to which a claim of foreseeable harm is made. See, e.g., Rosenberg v. U.S. Dep’t of Def.,
442 F. Supp. 3d 240, 259 (D.D.C. 2020) (“The degree of detail necessary to substantiate a claim
of foreseeable harm is context-specific.”); S. Rep. No. 114-4, at 328 (2015) (anticipating that
foreseeable harm determinations would turn on “whether the agency reasonably foresees that
disclosing that particular document, given its age, content, and character, would harm an interest
protected by the applicable exemption”). The purpose of the attorney-client privilege
encompassed by Exemption 5, for example, is to provide an “assurance of confidentiality” to
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clients, Animal Welfare Inst. v. Nat’l Oceanic & Atmospheric Admin., 370 F. Supp. 3d 116, 130
(D.D.C. 2019) (internal quotation marks and citation omitted), such that disclosure of privileged
information is a harm in and of itself. When invoking the attorney-client privilege, then, an
agency likely does not need to reach far beyond the fact of disclosure to show foreseeable harm.
By contrast, foreseeable harm under the deliberative process privilege requires the withholding
agency to show more. The agency “cannot simply rely on generalized assertions that disclosure
could chill deliberations.” Machado Amadis, 971 F.3d at 371 (internal quotation marks omitted).
Rather, the agency must “provide ‘context or insight into the specific decision-making processes
or deliberations at issue, and how they in particular would be harmed by disclosure.’” Ctr. for
Investigative Reporting, 436 F. Supp. 3d at 107 (Judicial Watch, 2019 WL 4644029, at *5).
While the D.C. Circuit has yet to consider the adequacy of an agency’s foreseeable harm
showing under the presidential communications privilege, Judges on this Court have consistently
credited declarations describing the potential chilling effects on confidential and candid
presidential decision-making as sufficient identification of foreseeable harm. See Wash. Post
Co. v. Special Inspector Gen. for Afg. Reconstruction, No. 18-cv-2622 (ABJ), 2021 WL
4502106, at *23 (D.D.C. Sept. 20, 2021) (citing Leopold v. U.S. Dep’t of Justice, 487 F. Supp.
3d 1, 10 n.4 (D.D.C. 2020)). In Washington Post, an agency’s declaration that disclosure of the
at-issue information “burdens the ability of the President and his advisors to engage in a
confidential and frank decision-making process and chills or inhibits their ability to have candid
discussions” was found to be an adequate showing of foreseeable harm under the presidential
communications privilege. Id. In Leopold, an agency’s representations that disclosure of the at-
issue information “would jeopardize the ability of future Presidents-elect to have full and candid
discussions with their advisers” and “would undermine the ability to protect the
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confidentiality . . . and further damage the quality of presidential decision-making” were likewise
sufficient for establishing foreseeable harm. Leopold, 487 F. Supp. 3d at 10 n.4.
In this case, the agencies have made similarly adequate showings of foreseeable harm.
The White House Special Counsel’s affidavit clearly states that “release of the plans would
impose a chilling effect on presidential decisionmaking, as such disclosure would hinder the
ability of the President and senior presidential advisors to obtain frank, unfettered information
and advice from Defendants and other Executive Branch agencies on important policy issues
such as voting access.” Sauber Decl. ¶ 14. This statement of foreseeable harm is similar in
content and level of detail to representations of harm made by agencies in Washington Post and
Leopold. Plaintiff presents no persuasive reasons why this case should come out differently.
Here, as in those previous cases, the description provided in the affidavit of the “chilling effect
on presidential decisionmaking,” see Sauber Decl. ¶ 14, is more than “generic” or “boilerplate,”
see Ctr. for Investigative Reporting, 436 F. Supp. 3d at 106; Pl. Opp’n at 19, and thus sufficient
to support the presidential communications privilege. See Wash. Post Co., 2021 WL 4502106, at
*23; Leopold, 487 F. Supp. 3d at 10 n.4; Pl. Opp’n at 19.
Finally, plaintiff argues that, at least concerning portions of the strategic plans describing
existing agency actions, defendants have identified no cognizable harm because final and post-
decisional information “could [not] possibly have any impact on confidential presidential
decisionmaking.” Pl. Opp’n at 20. Again, this is inaccurate. As explained supra, the strategic
plans were solicited by the President to inform his administration’s policymaking on expanding
voting access and directly relevant for the presidential decision-making process. See supra Part
III.A.1. Factual portions of the strategic plans are thus “revelatory of the President’s
deliberations” and squarely protected by the presidential communications privilege. In re Sealed
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Case, 121 F.3d at 745–46. Indeed, the White House Special Counsel made such a showing in his
affidavit when he referenced both factual “information” and pre-decisional “advice” in his
statement of the “chilling effect on presidential decisionmaking.” Sauber Decl. ¶ 14. The
affidavit adequately explains that disclosure of the strategic plans would foreseeably undermine
candid, informed, and high-caliber presidential decision-making, interests that the presidential
communications privilege has always intended to protect. See Loving, 550 F.3d at 37; In re
Sealed Case, 121 F.3d at 750.
Additionally, protecting the strategic plans in full under the presidential communications
privilege would not harm the public interest as plaintiff claims. See Pl.’s Opp’n at 15–17.
Plaintiff contends that application of the presidential communications privilege to the strategic
plans would “keep[] otherwise unclassified government operations secret from the American
people.” Id. at 17. As defendants rightfully note, however, the strategic plans “do not constitute
or establish ‘law’ in the sense of setting forth a decision that binds subordinates or a regulated
party.” Judicial Watch, 913 F.3d at 1113. Rather, the strategic plans document information and
advice “given up the chain to someone (the President) who then made a decision.” Id. The D.C.
Circuit has clarified that the “secret law” doctrine should be limited to “opinions and
interpretations which embody the agency’s effective law and policy.” Id. (quoting NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 153 (1975)). As materials prepared for presidential
decision-making, the strategic plans are distinct from working policies and laws of the agencies,
which are separately mandated by FOIA to be disclosed to the public. See Sears, 421 U.S. at 153(interpreting FOIA to “require disclosure of documents which have the force and effect of law”
(internal quotation omitted)). Thus, affording protection of the presidential communications
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privilege to the strategic plans does not constitute creating “secret law” that harms the interests
of the American public.
Defendants have therefore met their burden of establishing that foreseeable harm to the
interests protected by the presidential communications privilege would ensue if the strategic
plans were disclosed, as required to withhold the documents pursuant to Exemption 5.
IV. CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is GRANTED. An
order consistent with this memorandum opinion will be entered contemporaneously.
Date: July 18, 2023
__________________________
BERYL A. HOWELL
United States District Court Judge
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