298 F. Supp. 3d 592
S.D. Ill.2018Background
- Charles Seife (requester) submitted two FOIA requests: (1) F-2014-12996 seeking unredacted transcripts and planning materials for six specified "on background" briefings (July 22, 2014 request); and (2) F-2014-12997 seeking unredacted transcripts for any "on background" briefing from Jan. 20, 2009 to July 21, 2014.
- The State Department produced documents for the 12996 request (96 responsive documents: 15 produced in full, 80 redacted in part, 1 withheld entirely) and said no responsive transcripts existed in the form Seife requested for 12997; it pointed to publicly available transcripts that do not identify background briefers.
- The State Department withheld material under FOIA Exemption 5 (deliberative process and presidential communications privileges) for many drafts, talking points, and emails, and under Exemption 6 for names/contact information (including some DoD names and email/phone info and identities of background briefers).
- Seife challenged the adequacy of the 12997 search and the claimed Exemptions 5 and 6 redactions; parties filed cross-motions for summary judgment.
- The district court found the State Department’s search for 12997 was unreasonably narrow (it should have been construed to seek all unredacted transcripts, not only transcripts that already identified briefers by name) and that the State Department had not carried its burden to justify many Exemption 5 and some Exemption 6 withholdings; but the court upheld Exemption 6 redactions for certain DoD names and contact information and afforded the agency an opportunity to supplement its Vaughn submissions.
Issues
| Issue | Plaintiff's Argument (Seife) | Defendant's Argument (State Dept.) | Held |
|---|---|---|---|
| Adequacy of search for 12997 | Request reasonably described transcripts across date range; agency should have searched employees' files and email for non-public transcripts | No search required because Department does not maintain transcripts that identify background briefers; searching would be futile or unduly burdensome | Agency's narrow construction was unreasonable; court: agency must either search or substantiate burden with specificity (search inadequate as provided) |
| Exemption 5 (deliberative process) — emails, drafts, talking points, rollout schedules | Seife: agency's Vaughn descriptions are conclusory; many materials are routine press messaging not protected | State: withheld material is predecisional and deliberative, would chill candid internal discussions | Court: agency may claim deliberative privilege for press-strategy materials in principle, but current Vaughn/affidavit lacks sufficient specificity for most contested items; denial without prejudice — agency must supplement |
| Exemption 5 (presidential communications) — one withheld email involving NSC adviser | Seife: adviser may not have been acting in advising-the-President role; privilege not shown | State: message from senior NSC strategic communications official was part of presidential advising process | Court: accepted adviser's status but found agency did not show email was created/received in course of advising the President; privilege not sustained on current record; agency may supplement |
| Exemption 6 (identities/contact info) — background briefers, DoD names, emails/phones | Seife: public interest in disclosure (journalism, transparency about use of background briefings) outweighs privacy; identities reveal who gets anonymity | State: disclosure would invade privacy and harm officials; DoD policy protects names of Colonels/GS-15 and below; contact info sensitive | Court: upheld redaction of DoD names and agency contact info under Exemption 6; denied as to identities of background briefers (agency failed to show substantial privacy interest and must better justify redactions; Seife presented sworn evidence suggesting briefers may regularly be press-savvy spokespeople) |
Key Cases Cited
- Milner v. Dep't of Navy, 562 U.S. 562 (2011) (FOIA disclosure mandate and exemptions overview)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn index requirement)
- Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168 (1975) (deliberative process privilege test)
- Nat'l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (scope of FOIA disclosure requirements)
- In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (presidential communications privilege principles)
- American Civil Liberties Union v. Dep't of Justice, 844 F.3d 126 (2d Cir. 2016) (deliberative privilege applied to draft op-ed explaining government legal reasoning)
- Cook v. Nat'l Archives & Records Admin., 758 F.3d 168 (2d Cir. 2014) (Exemption 6 "similar files" and balancing framework)
- Long v. Office of Personnel Mgmt., 692 F.3d 185 (2d Cir. 2012) (public interest cognizable under FOIA and limit on using names to contact employees)
- United States Dep't of State v. Washington Post Co., 456 U.S. 595 (1982) (scope of "similar files" and privacy interests under Exemption 6)