330 F. Supp. 3d 373
D.C. Cir.2018Background
- Plaintiffs Ryan N. Shapiro and Property of the People requested OMB Director calendars (since Jan. 20, 2017) under FOIA; OMB produced 208 pages but redacted portions under Exemption 5 (deliberative process and presidential communications) and Exemption 6.
- Plaintiffs do not challenge Exemption 6 withholdings or OMB's refusal to produce visitor/call logs; dispute centers on factual fields redacted from entries OMB labeled "deliberative" (attendee names, locations, inviter) and entries OMB labeled subject to the presidential communications privilege.
- OMB argues factual fields may reveal deliberations (citing deliberative-process privilege) and that some entries memorialize communications with the President/VP or their senior advisers (citing presidential communications privilege).
- The court analyzed the applicability of Exemption 5 privileges and the sufficiency of OMB's declarations supporting redactions.
- Holding: Court orders disclosure of factual information redacted based solely on the deliberative process privilege (attendees, inviter, locations). The court denies summary judgment for entries withheld under the presidential communications privilege (or both privileges), finding OMB's declarations conclusory and allowing OMB to renew with supplemental evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether factual calendar fields (attendees, locations, inviter) may be withheld under Exemption 5 deliberative process privilege | Calendar facts are segregable and do not reveal deliberative content; must be disclosed | Such facts could reveal deliberations or be "functionally equivalent" to deliberative material (Wolfe) and thus may be withheld | Facts are generally disclosable; court orders release of disputed factual fields withheld only under deliberative process privilege |
| Whether calendar entries memorializing communications with President/VP or preparations can be withheld under presidential communications privilege | Privilege inapplicable; OMB must show entries involve President or immediate White House advisers and presidential decisionmaking | Entries memorialize communications with President/VP or their senior advisers or preparatory meetings and thus are privileged | OMB's declarations insufficiently specific; court denies summary judgment and permits OMB to supplement its record |
| Whether preparatory internal meetings outside White House are covered by presidential communications privilege | Such preparatory internal documents are not shielded; at most deliberative privilege could apply | Preparatory meetings relate to presidential decisionmaking and thus fall within the privilege | Preparatory internal meetings not shown to satisfy presidential-communications criteria; OMB must provide stronger, entry-specific proof |
| Whether agency declarations suffice to carry government burden on privilege claims | Plaintiffs: generalized, conclusory declarations insufficient; require specific, document-by-document justification | OMB: invoked privileges judiciously; current declarations adequate | Court agrees with Plaintiffs as to presidential privilege: OMB's declarations are conclusory; supplemental, detailed declarations required before withholding can be sustained |
Key Cases Cited
- Klamath Water Users Protective Ass'n v. United States, 532 U.S. 1 (privilege scope and Exemption 5 framework)
- In re Sealed Case, 121 F.3d 729 (D.C. Cir.) (presidential communications privilege scope)
- Wolfe v. HHS, 839 F.2d 768 (D.C. Cir.) (facts that reveal timing/agency action can be privileged)
- Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108 (D.C. Cir.) (limits on presidential communications privilege and immediate White House advisers)
- Loving v. Dep't of Defense, 550 F.3d 32 (D.C. Cir.) (deliberative process and presidential communications described under Exemption 5)