486 F.Supp.3d 317
D.D.C.2020Background
- Center for Public Integrity (CPI) filed FOIA requests to DOD and OMB seeking communications about the Ukraine Security Assistance Initiative (USAI) involving Acting Comptroller Elaine McCusker and senior officials; expedited processing requested.
- CPI sued after agencies delayed; the court issued a preliminary injunction ordering processing and production; agencies produced ~292 pages with redactions.
- CPI challenged redactions under FOIA Exemptions 3 (statutory), 5 (inter-/intra-agency privileges), and 6 (privacy); Exemption 1 challenge was withdrawn.
- Agencies invoked 10 U.S.C. §130c for Exemption 3 and asserted attorney-client, deliberative-process, and presidential communications privileges for Exemption 5; many documents were submitted for in camera review after the Vaughn index/declarations proved insufficient for some items.
- Ruling: Exemption 3 withholdings under §130c upheld; Exemption 6 redactions (email addresses) upheld; Exemption 5 withholdings largely upheld but the court ordered release of specific redactions in documents 44, 63, 64, 54, and part of 67.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether redactions fall under Exemption 3 via 10 U.S.C. §130c | Withheld material is not "sensitive" and agencies failed to segregate releasable info | DOD: materials were produced in cooperation with Ukraine, Ukraine requested nondisclosure; declarations show sensitivity and non-segregability | Upheld: §130c applies; agency declarations credible and segregability satisfied |
| Whether Exemption 5 privileges yield due to alleged government misconduct or FOIA Improvement Act requirements | Misconduct (GAO finding on Impoundment Control Act; alleged quid pro quo) justifies overcoming privileges | Privileges apply; agencies reasonably explained foreseeable harms per FOIA Improvement Act | Denied: court declined to apply a government-misconduct exception; agencies met the FOIA Improvement Act showing of particularized foreseeable harms |
| Whether attorney-client and deliberative-process privileges were properly applied to internal communications | Many redactions are factual, political/policy, or merely "keep attorneys in the loop"; withheld material may create secret law | Communications sought or gave legal advice and/or reflect pre-decisional deliberations; non-exempt material is not reasonably segregable | Mostly upheld: many withholdings sustained (including mixed attorney-client/deliberative redactions); select portions were ordered released (documents 54; specific portions of 44, 63, 64, 67) |
| Whether presidential communications privilege applies (scope, timing, and Robert Blair's status) | Blair not a sufficiently close White House adviser; many documents post-date the President's decision so privilege should not apply | Blair was an Assistant to the President with West Wing proximity and national-security duties; privilege covers pre- and post-decisional communications solicited/received for presidential advice | Mixed: privilege applies to numerous items (court accepted Blair's role), but some redactions were not presidential in nature and were ordered released |
| Whether Exemption 6 permits withholding of identifying contact information (email addresses) | Subject-line redactions reflect approver identity and should be public | Redactions are email addresses and their disclosure would invade personal privacy | Upheld: email-address redactions in documents 3 and 87 properly withheld under Exemption 6 |
Key Cases Cited
- Dep't of the Air Force v. Rose, 425 U.S. 352 (1976) (FOIA’s disclosure purpose and narrow construction of exemptions)
- Fed. Bureau of Investigation v. Abramson, 456 U.S. 615 (1982) (FOIA balances disclosure and legitimate harm from release)
- Milner v. Dep't of Navy, 562 U.S. 562 (2011) (FOIA exemptions must be narrowly construed)
- Multi Ag Media LLC v. Dep't of Agriculture, 515 F.3d 1224 (D.C. Cir. 2008) (agency bears burden; de novo review on exemptions)
- Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) (segregability and when nonexempt material is "inextricably intertwined")
- In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (discussion of deliberative-process and presidential communications privileges)
- Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) (government attorney-client privilege and limits where counsel makes binding policy)
- Nat'l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (Exemption 5 protects matters privileged in civil discovery)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency affidavits are afforded a presumption of good faith)
- Roth v. U.S. Dep't of Justice, 642 F.3d 1161 (D.C. Cir. 2011) (agencies must disclose reasonably segregable nonexempt portions)