245 F. Supp. 3d 19
D.D.C.2017Background
- Judicial Watch filed FOIA requests to the CIA and DOD seeking five memoranda drafted by senior agency lawyers concerning legal options, authority, and analysis for the 2011 raid that killed Osama bin Laden.
- Agencies located five responsive memoranda, completed processing, and withheld them in full under FOIA Exemptions 1, 3, and 5.
- Plaintiff narrowed its request to those five identified memoranda and sued after agencies declined to produce or release non-exempt portions.
- Defendants submitted detailed declarations (CIA Information Review Officer Antoinette Shiner and DOD counsel Mark Herrington) describing the memoranda as legal advice prepared for and reviewed by the President and senior national security advisers, and asserting classification and privilege bases.
- The parties cross-moved for summary judgment; the court treated agency declarations and constrained national security deference as central to resolving the exemptions and segregability issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 5 (presidential communications, deliberative process, attorney-client) protects the five memoranda | Memoranda should be produced; defendants failed to show privilege elements and withheld legal rationale that would create secret law | Memoranda are confidential legal advice solicited, reviewed, and relied on by the President and senior advisers; presidential communications, deliberative process, and attorney-client privileges apply | Court held Exemption 5 applies; presidential communications privilege covers the memoranda in full; no need to analyze deliberative privilege separately; attorney-client privilege also supported withholding |
| Whether Exemption 3 (statutory protection for intelligence sources/methods) applies | Requested material is non-operational legal justification and therefore not covered by intelligence-sources/methods statute | Statutory protection (National Security Act) covers discrete classified information in the memoranda identifying intelligence activities, sources, and methods; disclosure would harm national security | Court held Exemption 3 applies to classified discrete information in the memoranda based on agency declarations and required deference in national security context |
| Whether Exemption 1 (classification under Executive Order) applies | Declarations are conclusory and insufficient to justify classification of legal analysis | Memoranda are properly classified under Executive Order 13,526 as implicating intelligence activities and foreign relations; unauthorized disclosure would harm national security | Court held Exemption 1 applies to the classified portions and supported full withholding consistent with Exemption 3 reasoning |
| Whether agencies satisfied FOIA segregability requirement | Agencies must disclose non-exempt legal analysis; plaintiffs contend agency declarations are conclusory about non-segregability | Agencies performed document-by-document, line-by-line review and represent no reasonably segregable, non-exempt portions exist; presidential communications privilege can protect documents in full | Court found agencies conducted adequate segregability analysis and may withhold the memoranda in their entirety (presidential communications privilege covers documents in full) |
Key Cases Cited
- In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (articulating scope of presidential communications privilege)
- Judicial Watch, Inc. v. U.S. Dep’t of Justice, 365 F.3d 1108 (D.C. Cir. 2004) (privilege and deliberative-process/attorney-client principles under Exemption 5)
- Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977) (attorney-client and segregability principles under FOIA Exemption 5)
- CIA v. Sims, 471 U.S. 159 (1985) (National Security Act as an Exemption 3 statute)
- U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989) (FOIA’s disclosure purpose and limits)