UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CENTER FOR PUBLIC INTEGRITY, Plaintiff, v. Civil Action No. 19-3265 (CKK) U.S. DEPARTMENT OF DEFENSE, Defendant.
MEMORANDUM OPINON (August 6, 2020)
This case involves a Freedom of Information Act (“FOIA”) request submitted by Plaintiff
the Center for Public Integrity to Defendants the United States Department of Defense (“DOD”)
and the Office of Management and Budget (“OMB”). Pending before the Court are Defendants’
Motion for Summary Judgment (“Defs,’ Mot.”), ECF No. 22, and Plaintiff’s Cross-Motion for
Summary Judgment (“Pl.’s Mot.”), ECF No. 23. For the reasons below, the Court finds that in
camera review of certain documents relating to Plaintiff’s FOIA request and withheld under FOIA
Exemption 5 is necessary to make a responsible de novo determination on the claims of exemption.
As the Court recounted in its November 25, 2019 Memorandum Opinion, Plaintiff
submitted two FOIA requests. See Nov. 25, 2019 Memorandum Opinion, ECF No. 17. On
September 25, 2019, Plaintiff requested from the DOD “[a]ll records reflecting any
communication between Defense Department acting comptroller Elaine McCusker or other
officials within the comptroller’s office and employees or officials of the Office of Management
and Budget concerning the Ukraine Security Assistance Initiative.” Compl., ECF No. 1, ¶ 7.
Plaintiff also requested from the DOD “[a]ll records reflecting any communication between
Defense Department acting comptroller Elaine McCusker or other officials within the
comptroller’s office and Secretary of Defense Mark Esper or Deputy Secretary of Defense David
1 Norquist concerning the Ukraine Security Assistance Initiative.” Id. And, on September 30, 2019,
Plaintiff requested from the OMB “[a]ll records reflecting any communication between officials
and employees of the Office of Management and Budget and the office of Defense Department
acting comptroller Elaine McCusker or other officials within the comptroller’s concerning the
Ukraine Security Assistance Initiative.” Id. at ¶ 12. Defendants’ search returned approximately
120 documents totaling approximately 211 pages. The Court granted Plaintiff’s motion for a
preliminary injunction, ordering Defendants to process all responsive documents and to produce
all non-exempt documents by December 20, 2019. See Nov. 25, 2019 Memorandum Opinion, ECF
No. 17, 2.
Ultimately, Defendants made two productions of 292 pages, with redactions. Defs.’
Statement of Material Facts as to which There is No Genuine Issue, ECF No. 22-1, ¶ 42. Following
the first production, Plaintiff filed a motion to enforce the preliminary injunction, arguing that
Defendants had violated the Court’s preliminary injunction by improperly withholding
information. ECF No. 19. The Court denied Plaintiff’s Motion, explaining that the preliminary
injunction applied only to the production of non-exempt information. ECF No. 20. The Court
recognized that the issue of disputed exemptions would have to be litigated at a different time.
That time has come.
As is relevant to the parties’ Motions, Defendants have withheld portions of documents
based on FOIA Exemptions 1, 3, 5, and 6. Plaintiffs have disputed many of those withholdings.
The Court does not intend to resolve those disputes through this Memorandum Opinion. Instead,
the Court has determined that it needs to view certain documents in camera in order to make a de
novo determination on certain claims of exemption under FOIA Exemption 5.
2 Some background on Exemption 5 provides context for why in camera review is warranted
in this case. Exemption 5 applies to “inter-agency or intra-agency memorandums or letters that
would not be available by law to a party other than an agency in litigation with the agency.”
5 U.S.C. § 552(b)(5). “To qualify [for this exemption], a document must thus satisfy two
conditions: its source must be a Government agency, and it must fall within the ambit of a privilege
against discovery under judicial standards that would govern litigation against the agency that
holds it.” Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).
Over the years, it has been construed as protecting “those documents, and only those documents,
normally privileged in the civil discovery context.” Nat’l Labor Relations Bd. v. Sears, Roebuck
& Co., 421 U.S. 132, 149 (1975). As is relevant to this case, available privileges include the
attorney client privilege, the deliberative process privilege, and the presidential communications
privilege. Judicial Watch, Inc. v. U.S. Dep’t of Defense (Judicial Watch II), 913 F.3d 1106, 1109
(D.C. Cir. 2019). The Court has determined that in camera review is required for documents
withheld under each of these privileges.
“FOIA provides district courts the option to conduct in camera review, but ‘it by no means
compels the exercise of that option.’” Larson v. Dep’t of State, 565 F.3d 857, 869 (D.C. Cir. 2009)
(internal citations omitted) (quoting Juarez v. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008)).
In camera review is appropriate when such review is necessary for a district court “to make a
responsible de novo determination on the claims of exemption.” Juarez, 518 F.3d at 60 (internal
quotation marks omitted). “When the agency meets its burden by means of affidavits, in camera
review is neither necessary nor appropriate.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608
F.2d 1381, 1387 (D.C. Cir. 1979). But “affidavits will not suffice if the agency’s claims are
conclusory, merely reciting statutory standards, or if they are too vague or sweeping.” Id.
3 “[D]istrict courts possess broad discretion regarding whether to conduct in camera review.”
Larson, 565 F.3d at 870. In this case, making a responsible de novo determination of many of
Defendants’ FOIA Exemption 5 claims requires in camera review of the withheld information
because Defendants have failed to “provide specific information sufficient to place the documents
within the exemption category.” ACLU v. Dep’t of Def., 628 F.3d 612, 626 (D.C. Cir. 2011)
(internal quotation marks omitted).
Here, in addition to agency affidavits providing more general information, Defendants have
submitted a Vaughn index providing an explanation of the withheld information for each document
with redactions. ECF No. 22-3. In their Opposition, Defendants argue that in camera review is not
necessary because Defendants’ “declarations and Vaughn Index provide sufficiently detailed
information about each document to place the withheld information within the claimed exemption
category.” Defs.’ Opp’n, ECF No. 26, 30.
The Court disagrees. Agency affidavits and a Vaughn index are sufficient to justify
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CENTER FOR PUBLIC INTEGRITY, Plaintiff, v. Civil Action No. 19-3265 (CKK) U.S. DEPARTMENT OF DEFENSE, Defendant.
MEMORANDUM OPINON (August 6, 2020)
This case involves a Freedom of Information Act (“FOIA”) request submitted by Plaintiff
the Center for Public Integrity to Defendants the United States Department of Defense (“DOD”)
and the Office of Management and Budget (“OMB”). Pending before the Court are Defendants’
Motion for Summary Judgment (“Defs,’ Mot.”), ECF No. 22, and Plaintiff’s Cross-Motion for
Summary Judgment (“Pl.’s Mot.”), ECF No. 23. For the reasons below, the Court finds that in
camera review of certain documents relating to Plaintiff’s FOIA request and withheld under FOIA
Exemption 5 is necessary to make a responsible de novo determination on the claims of exemption.
As the Court recounted in its November 25, 2019 Memorandum Opinion, Plaintiff
submitted two FOIA requests. See Nov. 25, 2019 Memorandum Opinion, ECF No. 17. On
September 25, 2019, Plaintiff requested from the DOD “[a]ll records reflecting any
communication between Defense Department acting comptroller Elaine McCusker or other
officials within the comptroller’s office and employees or officials of the Office of Management
and Budget concerning the Ukraine Security Assistance Initiative.” Compl., ECF No. 1, ¶ 7.
Plaintiff also requested from the DOD “[a]ll records reflecting any communication between
Defense Department acting comptroller Elaine McCusker or other officials within the
comptroller’s office and Secretary of Defense Mark Esper or Deputy Secretary of Defense David
1 Norquist concerning the Ukraine Security Assistance Initiative.” Id. And, on September 30, 2019,
Plaintiff requested from the OMB “[a]ll records reflecting any communication between officials
and employees of the Office of Management and Budget and the office of Defense Department
acting comptroller Elaine McCusker or other officials within the comptroller’s concerning the
Ukraine Security Assistance Initiative.” Id. at ¶ 12. Defendants’ search returned approximately
120 documents totaling approximately 211 pages. The Court granted Plaintiff’s motion for a
preliminary injunction, ordering Defendants to process all responsive documents and to produce
all non-exempt documents by December 20, 2019. See Nov. 25, 2019 Memorandum Opinion, ECF
No. 17, 2.
Ultimately, Defendants made two productions of 292 pages, with redactions. Defs.’
Statement of Material Facts as to which There is No Genuine Issue, ECF No. 22-1, ¶ 42. Following
the first production, Plaintiff filed a motion to enforce the preliminary injunction, arguing that
Defendants had violated the Court’s preliminary injunction by improperly withholding
information. ECF No. 19. The Court denied Plaintiff’s Motion, explaining that the preliminary
injunction applied only to the production of non-exempt information. ECF No. 20. The Court
recognized that the issue of disputed exemptions would have to be litigated at a different time.
That time has come.
As is relevant to the parties’ Motions, Defendants have withheld portions of documents
based on FOIA Exemptions 1, 3, 5, and 6. Plaintiffs have disputed many of those withholdings.
The Court does not intend to resolve those disputes through this Memorandum Opinion. Instead,
the Court has determined that it needs to view certain documents in camera in order to make a de
novo determination on certain claims of exemption under FOIA Exemption 5.
2 Some background on Exemption 5 provides context for why in camera review is warranted
in this case. Exemption 5 applies to “inter-agency or intra-agency memorandums or letters that
would not be available by law to a party other than an agency in litigation with the agency.”
5 U.S.C. § 552(b)(5). “To qualify [for this exemption], a document must thus satisfy two
conditions: its source must be a Government agency, and it must fall within the ambit of a privilege
against discovery under judicial standards that would govern litigation against the agency that
holds it.” Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).
Over the years, it has been construed as protecting “those documents, and only those documents,
normally privileged in the civil discovery context.” Nat’l Labor Relations Bd. v. Sears, Roebuck
& Co., 421 U.S. 132, 149 (1975). As is relevant to this case, available privileges include the
attorney client privilege, the deliberative process privilege, and the presidential communications
privilege. Judicial Watch, Inc. v. U.S. Dep’t of Defense (Judicial Watch II), 913 F.3d 1106, 1109
(D.C. Cir. 2019). The Court has determined that in camera review is required for documents
withheld under each of these privileges.
“FOIA provides district courts the option to conduct in camera review, but ‘it by no means
compels the exercise of that option.’” Larson v. Dep’t of State, 565 F.3d 857, 869 (D.C. Cir. 2009)
(internal citations omitted) (quoting Juarez v. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008)).
In camera review is appropriate when such review is necessary for a district court “to make a
responsible de novo determination on the claims of exemption.” Juarez, 518 F.3d at 60 (internal
quotation marks omitted). “When the agency meets its burden by means of affidavits, in camera
review is neither necessary nor appropriate.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608
F.2d 1381, 1387 (D.C. Cir. 1979). But “affidavits will not suffice if the agency’s claims are
conclusory, merely reciting statutory standards, or if they are too vague or sweeping.” Id.
3 “[D]istrict courts possess broad discretion regarding whether to conduct in camera review.”
Larson, 565 F.3d at 870. In this case, making a responsible de novo determination of many of
Defendants’ FOIA Exemption 5 claims requires in camera review of the withheld information
because Defendants have failed to “provide specific information sufficient to place the documents
within the exemption category.” ACLU v. Dep’t of Def., 628 F.3d 612, 626 (D.C. Cir. 2011)
(internal quotation marks omitted).
Here, in addition to agency affidavits providing more general information, Defendants have
submitted a Vaughn index providing an explanation of the withheld information for each document
with redactions. ECF No. 22-3. In their Opposition, Defendants argue that in camera review is not
necessary because Defendants’ “declarations and Vaughn Index provide sufficiently detailed
information about each document to place the withheld information within the claimed exemption
category.” Defs.’ Opp’n, ECF No. 26, 30.
The Court disagrees. Agency affidavits and a Vaughn index are sufficient to justify
summary judgment when they show, with reasonable specificity, why the redactions fall within
the FOIA Exemption. “The affidavits will not suffice if the agency's claims are conclusory, merely
reciting statutory standards, or if they are too vague or sweeping.” Hall v. CIA, 881 F. Supp. 2d
38, 74 (D.D.C. 2012) (quoting Hayden v. Nat'l Sec. Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979),
cert. denied, 446 U.S. 937 (1980)). Here, many of the Vaughn index entries are insufficiently
specific. And, the agency affidavits fail to provide additional specificity for many of the
documents.
The Court will not provide a full description of each document with an inadequate Vaughn
index notation for which in camera review is required. Instead, the Court shall provide a sampling
of entries which are emblematic of the more widespread insufficiencies.
4 To begin, information in document 11 was redacted under FOIA Exemption 5’s
deliberative process privilege. The Vaughn index states only that the document is an “Email from
DOD to OMB about the proposed footnote regarding the Ukraine apportionment.” ECF No. 22-3.
The agency affidavits do not provide more specific information about this document. With this
limited information, the Court is not able to determine if the withheld information is deliberative
and rightfully withheld under the privilege. Similarly, document 13 was withheld under FOIA
Exemption 5’s deliberative process and presidential communications privileges. The Vaughn
index describes the document as “Email exchanges between DoD and OMB regarding possible
continuation of the apportionment footnote and the potential impacts of such a pause, including
references to communications involving the President or his immediate advisors.” ECF No. 22-3.
The agency affidavits do not provide more specific information about this document. And, with
the generalities provided in the Vaughn index, the Court is unable to determine if the withheld
information is deliberative as required by the deliberative process privilege or how the information
was used by the President and his advisers for purposes of the presidential communications
privilege. As another example, document 24 was withheld under FOIA Exemption 5’s deliberative
process and attorney client privileges. The Vaughn index describes this document as an “Email
from OMB to DoD regarding USAI funding implications to aid OMB in its apportionment
analysis, including legal implications and advice of counsel.” ECF No. 22-3. Without additional
specifics provided in agency affidavits, the Court is again unable to determine if the withheld
information is truly deliberative or if the information is truly legal advice, as opposed to political
or strategic advice, for purposes of the attorney client privilege. This problem is exacerbated by
the fact that the Vaughn index does not identify the sender or the recipient of the information,
further preventing the Court from being able to confirm that the withheld information is legal
5 advice from agency or related counsel. Finally, document 100 was withheld under the deliberative
process privilege. The document is one of many “weekly summar[ies]” “provided by the Acting
Comptroller to the Deputy SECDEF giving an overview of funding and related issues for military
programs in progress, including information on items unrelated to USAI.” Id. The agency affidavit
provides some additional information about this and other withheld weekly summaries, stating that
they are deliberative because “focusing [the Deputy Secretary of Defense’s] attention is itself
advice and making recommendations on what should be prioritized.” ECF No. 22-3, ¶ 20.
However, given that the Vaughn index describes the document as an “overview,” this general
statement fails to provide sufficient specificity as to each withheld weekly summary sufficient for
the Court to conclude that the withheld information is deliberative as opposed to factual.
The Court has thus provided an overview of the deficiencies in Defendants’ Vaughn index
and agency affidavits as they relate to withholdings under FOIA Exemption 5’s deliberative
process privilege, attorney client privilege, and presidential communications privilege. While not
every document withheld under FOIA Exemption 5 suffers from these deficiencies, a significant
number do. As such, the Court finds it necessary to conduct an in camera review of specified
documents in order to make a responsible de novo determination of the claims of exemption. For
each of the listed documents, the Court needs to see only the information withheld under
Exemption 5. Information withheld within those documents under other exemptions may remain
redacted. The Court shall conduct an in camera review of the following documents: 8, 9, 11, 12,
13, 14, 15, 20, 21, 22, 23, 24, 25, 28, 30, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 51, 52, 53, 54, 56,
60, 63, 64, 66, 67, 68, 69, 71, 72, 73, 74, 75, 76, 77, 78, 82, 83, 86, 92, 94, 95, 96, 97, 98, 99, 100,
101, 102, 103, 104, 105, 106, 107, 111.
6 Prior to releasing this Memorandum Opinion, the Court contacted Defendants to determine
the most appropriate way to view the requested documents given the restrictions of COVID-19.
Defendants indicated that they will coordinate with the Court to arrange a date and time to deliver
by hand the documents to be reviewed in camera. Following the release of this Memorandum
Opinion and the accompanying Order, the Court shall contact Defendants to arrange a date and
time for the delivery of the materials.
An appropriate Order accompanies this Memorandum Opinion.
/s/ COLLEEN KOLLAR-KOTELLY United States District Judge