10 F.4th 879
D.C. Cir.2021Background
- In March 2017 President Trump called NSA Director Admiral Michael Rogers; Deputy Director Richard Ledgett, who was on the call, prepared a contemporaneous memorandum documenting the conversation.
- Protect Democracy submitted FOIA requests seeking memoranda memorializing any White House requests that the NSA dispute reports of Trump–Russia ties; after the Mueller Report confirmed the memo’s existence the NSA identified and withheld Ledgett’s memo.
- The NSA invoked FOIA Exemption 5, relying on the presidential communications privilege (among other exemptions); the district court reviewed the memo in camera, sustained the privilege claim, and denied segregability and waiver claims.
- Protect Democracy appealed, arguing (1) the memo is not entirely privileged and nonprivileged portions must be segregated; (2) a misconduct exception should permit segregability; and (3) the Mueller Report’s disclosure waived the privilege under the official-acknowledgment doctrine.
- The D.C. Circuit conducted in camera review, held the memo falls squarely within the presidential communications privilege (covering the document in full), rejected a misconduct-based segregability exception in the FOIA context, and found no waiver from the Mueller Report; it affirmed the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the presidential communications privilege applies to Ledgett’s memo | The request concerns non-privileged factual material (e.g., Trump asking if Rogers could refute stories) not tied to presidential decisionmaking | Memo documents a call initiated by the President on national-security/foreign-relations matters and thus reflects presidential deliberations | Privilege applies to the memo in its entirety; memo falls within scope of presidential communications privilege |
| Whether FOIA’s segregability requirement requires release of nonprivileged portions of a privileged presidential-communications document | Even if parts would be nonprivileged in isolation, the memo contains mixed material and nonprivileged parts should be released | Circuit precedent treats presidential-communications-protected documents as non-segregable in FOIA; entire-document rule applies | Segregability does not apply where the presidential communications privilege covers the document in full; no disclosure required |
| Whether a narrow misconduct exception should permit segregability where there are credible allegations of presidential wrongdoing | Serious allegations (e.g., obstruction) and Mueller’s reporting create a compelling need to disclose nonprivileged portions | Exemption 5 incorporates privileges that are not overcome by FOIA-driven balancing; misconduct allegations do not convert FOIA into a vehicle to overcome the privilege | No new misconduct exception; FOIA plaintiff cannot use alleged misconduct to force segregability of a privileged document |
| Whether the Mueller Report’s description of the call waived privilege via official acknowledgment | Mueller’s public account matches the memo and thus officially acknowledges its contents, waiving privilege as to matching details | The Report does not match the memo with the specificity required for official-acknowledgment waiver; disclosure of some related facts does not waive privilege for the memo | No waiver: the Report’s disclosure is not a sufficiently specific match and therefore does not effect an official-acknowledgment or executive-privilege waiver |
Key Cases Cited
- United States v. Nixon, 418 U.S. 683 (constitutional basis for presidential communications privilege)
- Nixon v. Admin. of Gen. Servs., 433 U.S. 425 (privilege limited to communications made in performance of Presidential responsibilities)
- In re Sealed Case, 121 F.3d 729 (D.C. Cir.) (presidential communications privilege covers documents in their entirety; high bar for waiver)
- Judicial Watch, Inc. v. Dep’t of Defense, 913 F.3d 1106 (D.C. Cir.) (applies entire-document rule to presidential communications under FOIA Exemption 5)
- Loving v. Dep’t of Defense, 550 F.3d 32 (D.C. Cir.) (contrast between deliberative-process and presidential communications privileges)
- ACLU v. Dep’t of Defense, 628 F.3d 612 (D.C. Cir.) (official-acknowledgment test: specificity, match, and official/public disclosure)
- Fish & Wildlife Serv. v. Sierra Club, 141 S. Ct. 777 (Sup. Ct.) (Exemption 5 incorporates privileges available in civil litigation)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (privileges embodied in Exemption 5 cover materials normally privileged in civil discovery)