I. INTRODUCTION
Pursuant to the Freedom of Information Act ("FOIA"), Plaintiffs Ryan Noah Shapiro and Property of the People, Inc. seek disclosure of certain portions of entries appearing on an electronic calendar maintained by the Director of the Office of Management and Budget ("OMB"). Both parties have moved for summary judgment. Citing FOIA Exemption 5's deliberative process privilege, OMB contends that factual information featured in some calendar entries-including, the identities of meeting participants and the locations of meetings-is not subject to release. This is so, OMB argues, even though Plaintiffs do not seek the release of the specific subject matters of any purportedly deliberative meetings. In addition, citing the presidential communications privilege, OMB asserts that it may withhold other entries in full. As explained below, the Court rejects OMB's claim that, in the context of this case, the deliberative process privilege covers factual information featured in the calendar entries logging the OMB Director's meetings. With respect to OMB's withholdings under only the presidential communications privilege and under both the presidential communications privilege and the deliberative process privilege, the Court denies the cross-motions for summary judgment. The declarations submitted by OMB are insufficiently detailed and conclusory, and thus, do not permit the Court to determine whether the agency may properly withhold any of the disputed calendar entries under the presidential communications privilege. OMB may file a renewed motion for summary judgment and must submit supplemental declarations and other materials supporting its claimed exemption. And Plaintiffs may renew their cross-motion in response.
II. BACKGROUND
In May 2017, Plaintiffs Ryan Noah Shapiro and Property of the Peoрle, Inc. submitted
In its search for records responsive to Plaintiffs' request for calendar or appointment books, OMB reviewed Miсrosoft Outlook calendars maintained by Mark Sandy-the Acting Director of OMB from January 20, 2017 until mid-February 2017-and by current OMB Director Mick Mulvaney. See First Walsh Decl. ¶ 8. OMB identified 208 pages of calendar records as responsive to Plaintiffs' request. See First Walsh Decl. ¶¶ 9-13. OMB released all 208 pages to Plaintiffs, but redacted numerous calendar entries, citing FOIA Exemptions 5 and 6. See First Walsh Decl. ¶ 17. Plaintiffs do not challenge the adequacy of OMB's search and do not challenge OMB's withholdings under FOIA Exemption 6. But Plaintiffs dispute a portion of OMB's Exemption 5 withholdings. See Def.'s Statement of Material Facts Supp. Def.'s Mot. Summ. J. ¶ 16 ("Def.'s SMF"), ECF No. 12-2. Specifically, this suit concerns certain withholdings under Exemption 5's deliberative process and presidential communications privileges.
Pursuant to the deliberative process privilege, OMB has redacted "calendar entries that would reveal the particular subject matter of agency meetings, as well as entries fоr preparatory sessions that would reveal the deliberations occurring in subsequent meetings." Def.'s SMF ¶ 13; see also First Walsh Decl. ¶¶ 18, 20-25. More precisely, OMB contends that it has "redacted certain entries that reference specific narrow discussions reflecting the thinking and deliberations of Executive Branch officials, including the Director." First Walsh Decl. ¶ 21. OMB has provided a general description of the topics of discussion at the meetings memorialized by the calendar entries-for example, "tax policy" or "healthcare policy." First Walsh Decl. ¶ 24; First Walsh Decl. Ex. 1, ECF No. 12-3. In addition, OMB has redacted one calendar entry under the deliberative process privilege because, though the subject
Plaintiffs do not challenge OMB's withholding of the subject matter of the meetings for which OMB has asserted the deliberative process privilege. See Pls.' MSJ at 1, n.1. Rather, Plaintiffs challenge OMB's redaction of additional information included in these calendar entries-such as, the names of meeting attendees, the locations of meetings, and the "inviter" who added the meetings to the Director's calendar. See Pls.' MSJ at 1-11. OMB has agreed to turn over this information with respect to many calendar entries, but insists that redaction is warranted to shield the names of meeting participants, the locations of meetings, and the like with respect to entries for which the agency has determined that release of this information "would so expose the delibеrative process that it must be covered by the privilege." See Def.'s Consolidated Opp'n to Pls.' Cross-Mot. Summ. J. & Reply Supp. Def.'s Mot. Summ. J. ("Def.'s Opp'n & Reply") at 6, ECF No. 16 (internal quotation marks omitted) (quoting Wolfe v. HHS ,
Pursuant to the presidential communications privilege, OMB has redacted "calendar entries that memorialize communications with the President, Vice President, or their senior advisors, or preparations for such meetings." Def.'s SMF ¶ 14. According to OMB, it has "only redacted those entries in which (1) the President or Vice President attended the meeting; (2) the meeting took place in a location in which it would be easily inferred that the President or Vice President was in attendance; or (3) the calendar entry reflected preparation for a meeting that fell under one of the previous two categories." Second Walsh Decl. ¶ 3. These meetings include "instances in which Director Mulvaney either advised the President or Vice President directly or provided advice to оther [Executive Office of the President] officials who would use that information and analysis to inform their advice to the President." Second Wash Decl. ¶ 5. For entries that OMB contends are covered by both the deliberative process privilege and the presidential communications privilege, Plaintiffs do not challenge the withholding of the subject matter of the meetings. See Pls.' MSJ at 1 n.1. But for entries for which OMB invokes only the presidential communications privilege, Plaintiffs seek disclosure of all redacted information. See Reply Supp. Pls.' Cross-Mot. Summ. J. ("Pls.' Reply") at 10-22, ECF No. 18. The parties have filed cross motions for summary judgment, which are now ripe for decision.
III. LEGAL STANDARD
A. Freedom of Information Act
The Freedom of Information Act, or FOIA, "sets forth a policy of broad disclosure of Government documents in order 'to ensure an informed citizenry, vital to the functioning of a democratic society.' " FBI v. Abramson ,
"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol ,
To carry its burden, the agency must provide "a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of the withheld document to which they apply." Elec. Privacy Info. Ctr. v. U.S. Drug Enf't Agency ,
B. FOIA Exemption 5
OMB relies solely on FOIA Exemption 5 to shield the disputed calendar entries. FOIA Exemption 5 protects "inter-agency or intra-agency memorandums or letters that would not be available by law to a party ... in litigation with the agency."
IV. ANALYSIS
This case concerns OMB's invocation of FOIA Exemption 5 to shield, in part or in full, entries from the electronic appointment calendar of the OMB Director. Citing the deliberative process privilege, OMB contends that it may withhold information such as the names of meeting attendees, the locations of meetings, and the "inviter" who scheduled meetings because such information may be revelatory of agency deliberations. See Def.'s Opp'n & Reply at 4-11. And, citing the presidential communications privilege, OMB maintains that it may withhold in full calendar entries that memorialize meetings between the OMB Director and thе President, Vice President, and/or the President's senior advisors-as well as certain entries that reflect meetings held to prepare for meetings between the OMB Director and the President, Vice President and/or the President's senior advisors-that were conducted in furtherance of presidential decisionmaking. See Def.'s Opp'n & Reply at 11-24.
As explained below, with respect to records for which OMB asserts only the deliberative process privilege, the Court denies OMB's motion for summary judgment and grants Plaintiffs' motion for the same. OMB must release factual information-including the names of meeting attendees, the name of an "inviter," and the locations of meetings-featured in these records. With respect to OMB's withholdings under only the presidential communications privilege and under both the presidential communications privilege and the deliberative process privilege, the Court denies the cross-motions fоr summary judgment. The declarations submitted by OMB are insufficiently detailed and conclusory and, thus, do not permit the Court to determine whether the agency may properly withhold any of the calendar entries under the presidential communications privilege. OMB may file a renewed motion for summary judgment and must submit supplemental declarations and other materials supporting its claimed exemption. And Plaintiffs may renew their cross-motion in response.
A. Deliberative Process Privilege
Plaintiffs challenge OMB's reliance on the deliberative process privilege to shield factual information featured in certain entries on the OMB Director's electronic appointment calendar. See Pls.' MSJ at 1-11. Specifically, with respect to meetings that OMB has labelled deliberative, Plaintiffs seek disclosure of portions of calendar entries that indicate, among other things, the meeting participants, the locations of meetings, and the "inviter" who scheduled the meetings. See Pls.' MSJ at 1-11. Significantly, Plaintiffs do not request that OMB release the subject matter of any of these purportedly deliberative meetings. See Pls.' MSJ at 1 n.1. OMB has released factual information for many of the calendar entries, but with respect to a select portion of the entries, OMB has left redacted the meeting location and/or participants because it contends that release of this material "would so expose the deliberative
The deliberative process privilege "protects 'documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated.' " Loving ,
"Under the dеliberative process privilege, factual information generally must be disclosed, but materials embodying officials' opinions are ordinarily exempt." Petroleum Info. Corp. ,
OMB has fallen well short of demonstrating that the disputed factual information is so inextricably intertwined with any deliberative portions of the calendar entries that disclosure would reveal the agency's deliberations. First, it is not at all clear how release of the disputed material might reveal any aspect of the agency's deliberative process. In the context of this case, details about where a meeting was held, who scheduled a meeting,
Second, and relatedly, this matter is quite different from Wolfe v. HHS ,
The information at issue in this case functions differently than the records in dispute in Wolfe . Unlike in Wolfe , the disputed materials in this case have scant potential to expose internal agency deliberations. Revealing, for example, that the OMB Director scheduled a "regulatory policy" meeting with certain White House advisors would offer, at the very most, only very limited insight into possible topics of discussion at the meeting. Certainly, in the context of this case, disclosure of the fact that certain officials met-or, at least,
Third, other courts in this district have held that similar factual information is not protected by the deliberative process privilege. For example, in Judicial Watch, Inc. v. Dep't of Navy ,
The Court is not persuaded by OMB's invocation of cases involving factual information that could not be released without jeopardizing the privacy of agency deliberations. See Def.'s Opp'n & Reply at 7-9. For example, OMB contends that Elec. Frontier Found. v. Nat'l Security Agency ,
Likewise, OMB cites Cofield v. City of LaGrange, Ga. ,
Finally, to accept OMB's contention that the factual material at issue in this case is covered by the deliberative process privilege would flout "the oft-repeated caveat that FOIA exemptions are to be narrowly construed." FBI v. Abramson ,
B. Presidential Communications Privilege
OMB next invokes the presidential communicatiоns privilege to shield calendar entries that "memorialize communications with the President, Vice President, or their senior advisors" and entries that "encompass preparations for such meetings." First Walsh Decl. ¶ 26. According to OMB, it raises the privilege for "entries in which (1) the President or Vice President attended the meeting; (2) the meeting took place in a location in which it would be easily inferred that the President or Vice President was in attendance; or (3) the calendar entry reflected preparation for a meeting that fell under one of the previous two categories." Second Walsh Decl. ¶ 3. OMB asserts that, while it "left unredacted voluminous meetings with vague captions or captions that describes broad topics," First Walsh Decl. ¶ 20, it has "invoked the [presidential communications privilege] judiciously and only for those entries that it deemed sufficiently revelatory of рresidential decisionmaking." Def.'s Opp'n & Reply at 13.
Plaintiffs challenge OMB's withholdings under the presidential communications privilege. With respect to calendar entries for which OMB has asserted both the presidential communications privilege and the deliberative process privilege, Plaintiffs seek no additional information about the topic of any meetings, and request only disclosure of other information featured in the entry-such as the names of meeting attendees and the locations of meetings. See Pls.' MSJ at 1 n.1. With respect to entries for which OMB has invoked only the presidential communications privilege, Plaintiffs seeking disclosure of the full entries, including the subject matter of the meetings. Plaintiffs contend that the presidential communications privilege is inapplicable to the disputed calendar entries because (1) OMB has not adequately demonstrated that the subject matter of the meetings involved advice on matters of direct presidential decisionmaking; (2) OMB has not adequately demonstrated that each meeting involved an immediate White House adviser or their staff; and (3) even if the topics of meetings are not subject to release, the privilege does not shield segregable information such as the names of meeting attendees. See Pls.' MSJ at 11-22; Pls.' Reply at 10-23. As explained below, the Court concludes that OMB's submissions are insufficient to demonstrate that any of the disputed calendar entries are properly shielded by the presidential communications privilege. Nevertheless, the Court will permit OMB to supplement its submissions and file a renewed motion for summary judgment. And Plaintiffs will be permitted to respond to OMB's more detailed submissions.
First, as Plaintiffs contend, it is not at all clear from OMB's filings whether the disputed calendar entries catalog meetings with individuals who qualify as "immediate White House advisers," Judicial Watch, Inc. ,
Importantly, the Circuit observed that neither "the Deputy Attorney General [n]or the Attorney General"-both advisers
Based on the present submissions, the Court cannot discern from OMB's broad and vague descriptions whether-and, if so, which-disputed calendar entries memorialize communications with the President or with the President's immediate White House advisers. And it appears from OMB's filings that it may have asserted the privilege with respect to meetings between individuals who are decidedly not immediate White House advisers under Circuit precedent. In arguing that the privilege should apply to the subset of calendar entries that OMB has deemed potentially revelatory of presidential decisionmaking, OMB points to the several meetings that it lеft unredacted that purportedly "involved the same presidential advisers to whom the D.C. Circuit extended the [presidential communications privilege]." Def.'s Opp'n & Reply at 12. The cited unredacted entries memorialize, among other things, a meeting between the OMB Director and the Secretary of State, a meeting between the OMB Director and the Secretary of Homeland Security; and a meeting between the OMB Director and the Secretary of Housing and Urban Development. See Def.'s Opp'n & Reply at 12-13. OMB argues that "[t]he fact that [it] released these and many other calendar entries describing meetings with presidential advisers reinforces the agency's assertion that it invoked the [presidential communications privilege] judiciously and only for those entires that it deemed sufficiently revelatory of presidential decisionmaking." Def.'s Opp'n & Reply at 13. But, as explained above, OMB аppears to misapprehend the reach of the privilege, as the heads of agencies that are subject to FOIA are not immediate White House advisers for purposes of the application of the privilege. Indeed, OMB seems to rely on the functional definition of presidential adviser that was explicitly
Relatedly, OMB asserts that some of the redacted entries catalog meetings among internal agency staff to prepare for meetings with the President or other White House advisers. See Def.'s Opp'n & Reply at 11 & n.5. However, OMB fails to explain why these entries might meet the requirement that documents or other communications directly involved the President or were solicited and received by the President or his immediate White House advisers. OMB cannot rely on the notion that preparatory meetings served some Executive Branch function to claim that a privilege specially related to the unique role of the President applies. As the Circuit explained in In re Sealed Case and Judicial Watch , the presidential communications privilege does not shield internal agency communications that never reached the President or immediate White House advisers, even if the documents bear on matters of Presidential decisionmaking. See Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau ,
In addition, OMB has not shown that each of the disputed entries "reflect presidential decisionmaking and deliberations." Ctr. for Effective Gov't v. U.S. Dep't of State ,
OMB is not solely an adviser to the president. See Sierra Club v. Andrus ,
Finally, the Court rejects OMB's contention that it is not required to reveal more about the nature of the calendar entries to show that the presidential communications privilege applies. See Def.'s Opp'n & Reply at 14. The burden to prove that an exemption applies belongs to the government, and, as explained above, OMB has not discharged its burden in this case. To meet its burden of showing that the presidential communications privilege shields the disputed calendar entries, OMB may show that the " 'communications directly involve[ed] and documents [were] actually viewed by the President,' " or that "documents [were] 'solicited and received' by the President or his 'immediate White House advisers [with] ... broad and significant responsibility for investigating and formulating the advice to be given to the President.' " Loving ,
V. CONCLUSION
For the foregoing reasons, Plaintiffs' motion for summary judgment is GRANTED with respect to OMB's withholdings under only the deliberative process privilege. Both parties' motions are DENIED with respect to OMB's withholdings under the presidential communications privilege or under both the presidential communications privilege and the deliberative process privilege. OMB may file a renewed motion for summary judgment and must submit supplemental declarations and other materials supporting its claimed exemption. And Plaintiffs may renew their cross-motion in response. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Notes
At the time that this suit was filed, it also concerned a FOIA request submitted to the Council on Environmental Quality ("CEQ"), seeking similar records. See Compl. ¶ 12-14, 16. Plaintiffs later dismissed their suit against CEQ. See Stipulation of Dismissal with Prejudice, ECF No. 8.
Initially, Plaintiffs also challenged Defendant's withholding of a single calendar entry under the attorney-client privilege. See Pls.' MSJ at 22-28. But OMB has since agreed to turn over the once-disputed entry and, thus, the Court will not assess the propriety of that withholding. See Second Decl. of Heather Walsh ("Second Walsh Decl.") ¶ 7, ECF No. 16-2; see Muckrock, LLC v. CIA ,
It bears mentioning that, in a case involving plaintiffs seeking very similar records, the Circuit concluded that the visitor records were not "agency records" within the meaning of FOIA. See Judicial Watch, Inc. v. U.S. Secret Serv. ,
The Court also rejects OMB's suggestion that it might be permitted to withhold factual information, such as the names of individuals who attended meetings with the Director, on the ground that "[i]f the names of those individuals were released, the topic of the meeting would be easily ascertained given public, external events going on at the time the meeting occurred." Second Walsh Decl. ¶ 6. OMB relies on the "mosaic theory," see Def.'s MSJ at 12 n.4, 19, which recognizes that "[t]housands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate." Halkin v. Helms ,
This conclusion applies to calendar entries for which OMB has asserted only the deliberative process privilege. For calendar entries for which OMB has asserted both the deliberative process privilege and the presidential communications privilege, the Court will reserve judgment regarding which portions, if any, of those records must be disclosed because, as explained below, the presidential communications privilege sweeps farther than the deliberative process privilege and may shield factual information included in protected records.