UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) PROJECT ON ) GOVERNMENT OVERSIGHT, ) ) Plaintiff, ) ) v. ) Civil Action No. 20-1415 (ABJ) ) U.S. DEPARTMENT ) OF JUSTICE, ) ) Defendant. ) ____________________________________)
MEMORANDUM OPINION
Plaintiff Project on Government Oversight (“POGO”) brought this action on May 28, 2020
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., seeking to compel
defendant, the United States Department of Justice Office of Legal Counsel (“OLC”), to release
certain records. See Compl. [Dkt. # 1] ¶ 7. Defendant has filed a motion for summary judgment,
and plaintiff filed a combined opposition to defendant’s motion and cross-motion for summary
judgment. See Def.’s Mot. for Summ. J. [Dkt. # 54] (“Def.’s Mot.”); Def.’s Mem. in Supp. of
Mot. [Dkt. # 54-1] (“Def.’s Mem.”); Pl.’s Opp. to Def’s. Mot. and Cross-Mot. for Summ. J. [Dkt.
# 56] (“Pl.’s Cross-Mot.”); Pl.’s Mem. in Supp. of Pl.’s Cross-Mot. [Dkt. # 56-1] (“Pl.’s Mem.”).
The defendant’s motion is supported by a declaration explaining the justification for the agency’s
invocation of FOIA Exemptions 5 and 6. See Decl. of Trisha Anderson [Dkt. # 54-4] (“Anderson
Decl.”). Defendant opposes plaintiff’s cross-motion, and both motions are fully briefed. See
Def.’s Reply Mem. in Supp. of Def.’s Mot. and Opp. to Pl.’s Cross-Mot. [Dkt. # 64] (“Def.’s
Reply”); Pl.’s Reply in Supp. of Pl.’s Cross-Mot. [Dkt. # 67] (“Pl.’s Cross-Reply”). Because the Court concludes, based on its consideration of the entire record, that the
agency’s invocation of FOIA Exemption 5 was proper, defendant’s motion for summary judgment
will be GRANTED, and plaintiff’s cross-motion for summary judgment will be DENIED.
BACKGROUND
Plaintiff submitted a FOIA request to the OLC on October 1, 2018, requesting a “list of all
[OLC] opinions from January 1, 1998 through the present.” Def.’s Statement of Undisputed
Material Facts [Dkt. # 54-2] (“Def.’s SOF”) ¶ 10; Pl.’s Resp. to Def.’s SOF [Dkt. # 56-3] (“Pl.’s
Resp. SOF”) ¶ 10; see Ex. A to Compl. [Dkt. # 1-5] (“FOIA Request”). On April 8, 2019, the
OLC conducted a search and processed the records. Def.’s SOF ¶ 16; Pl.’s Resp. SOF ¶ 16. On
April 18, 2019, the OLC responded to the request, informing plaintiff that its search had identified
twenty-two responsive records. See Ex. J to Compl. [Dkt. # 1-14]. Defendant sent the records to
plaintiff with some material redacted pursuant to FOIA Exemption 5, 5 U.S.C. § 552(b)(5), and
FOIA Exemption 6, 5 U.S.C. § 552(b)(6). See Ex. J to Compl. [Dkt. # 1-14]. On May 9, 2019,
plaintiff filed an administrative appeal, and the matter was remanded to OLC for a further search.
See Ex. N to Compl. [Dkt. # 1-18].
On May 28, 2020, plaintiff filed the complaint in this matter, see Compl., and on August
12, 2021, the OLC provided plaintiff with additional records with redactions pursuant to
Exemptions 5 and 6. See Ex. D to Anderson Decl. [Dkt. # 54-4]. Following “lengthy litigation in
this matter on the other, now-resolved FOIA requests at issue,” OLC agreed to re-review its initial
response, see Anderson Decl. ¶ 13, and on April 28, 2023, it provided a supplemental response,
stating that some material remained redacted pursuant to Exemptions 5 and 6. Def.’s SOF ¶¶ 11–
12, citing Anderson Decl. ¶ 13; Pl.’s Resp. SOF ¶¶ 11, 12; see Ex. E to Anderson Decl. [Dkt. # 54-
2 4] (“Supp. Resp.”). Plaintiff challenges only the redactions in this supplemental response. See
Def.’s SOF ¶ 13; Pl.’s Statement of Undisputed Material Facts [Dkt. # 56-3] (“Pl.’s SOF”) ¶ 5.
The records at issue consist of twenty-two lists that were created by an OLC staff assistant
as tables of contents for binders that OLC attorneys use for “hard-copy access to the recent work
of the Office.” Def.’s SOF ¶ 14, citing Anderson Decl. ¶ 16; Pl.’s Resp. SOF ¶ 14. Each list
covers one calendar year from 1998 to 2019. Def.’s SOF ¶ 15, citing Anderson Decl. ¶ 16; Pl.’s
Resp. SOF ¶ 15. The lists “were prepared for internal reference by a staff assistant and were not
intended to serve as a comprehensive or accurate index of all the Office opinions on questions of
law.” Def.’s SOF ¶ 17, citing Anderson Decl. ¶ 17 and Supp. Resp. at 1; Pl.’s Resp. SOF ¶ 17.
With a few “minor exceptions,” each list includes entries identifying documents generated by OLC
during the relevant year, and each entry identifies “the recipient of the document, a title or brief
description of the document, the date of the document, and one or more names of the Office
attorneys.” Def.’s SOF ¶¶ 21–22, citing Anderson Decl. ¶ 18; Pl.’s Resp. SOF ¶¶ 21–22.
The OLC invoked FOIA Exemptions 5 and 6 for all of the redacted portions, but plaintiff
only challenges the redactions pursuant to Exemption 5. Def.’s SOF ¶¶ 12–13, 24, citing Anderson
Decl. ¶¶ 13–14, 21; Pl.’s Resp. SOF ¶¶ 12–13, 24. 1 Defendant claims that all of the redacted
portions from the records fall under Exemption 5’s deliberative process and attorney-client
privileges. Def.’s SOF ¶ 24, citing Anderson Decl. ¶ 21; Pl.’s Resp. SOF ¶ 24. Additionally, the
OLC redacted three entries pursuant to Exemption 5’s work-product doctrine and the presidential
communications privilege. Def.’s SOF ¶¶ 33–34, citing Anderson Decl. ¶¶ 21, 25–26; Pl.’s Resp.
1 Within the twenty-two lists, plaintiff challenges only the twenty-three redactions made pursuant to Exemption 5. Anderson Decl. ¶¶ 11, 19; Pl.’s SOF ¶ 5.
3 SOF ¶¶ 33–34. 2 The redactions cover “only the name of the recipient and the title or brief
description of the relevant entries.” Def.’s SOF ¶ 25, citing Anderson Decl. ¶ 22; Pl.’s Resp. SOF
¶ 25. Defendant states that these redactions “serve to protect the identity of a client and the subject
matter of the advice sought and provided.” Def.’s SOF ¶ 26, citing Anderson Decl. ¶ 22.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary
judgment, the non-moving party must “designate specific facts showing that there is a genuine
issue for trial.” Id. at 324 (internal quotation marks omitted).
The mere existence of a factual dispute is insufficient to preclude summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a
reasonable factfinder could find for the non-moving party; a fact is “material” only if it is capable
of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241
(D.C. Cir. 1987). In assessing a party’s motion, the Court must “view the facts and draw
reasonable inferences ‘in the light most favorable to the party opposing the summary judgment
2 The OLC invoked the work-product doctrine with respect to one entry identified as “2010, No. 7” and invoked the presidential communications privilege with respect to two entries identified as “2010, No. 16” and “2018, No. 4.” Def.’s SOF ¶¶ 33–34, citing Anderson Decl. ¶¶ 21, 25–26; Pl.’s Resp. SOF ¶¶ 33–34.
4 motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).
When the Court is presented with cross-motions for summary judgment, it analyzes the
underlying facts and inferences in each party’s motion in the light most favorable to the non-
moving party. See Anderson, 477 U.S. at 247.
FOIA cases are typically and appropriately decided on motions for summary judgment.
See Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In FOIA cases,
the agency bears the ultimate burden of proof. See U.S. Dep’t of Just. v. Tax Analysts,
492 U.S. 136, 142 n.3 (1989). The Court may award summary judgment based solely on
information provided in an agency’s affidavits or declarations that identify “the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981). These affidavits or declarations are accorded “a presumption of good faith,
which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of
other documents.’” SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991),
quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981).
When considering a motion for summary judgment under FOIA, the Court must conduct a
de novo review of the record. See 5 U.S.C. § 552(a)(4)(B).
ANALYSIS
FOIA requires government agencies to release records upon request in order to “ensure an
informed citizenry, vital to the functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &
5 Rubber Co., 437 U.S. 214, 242 (1978). The statute provides that: “each agency, upon any request
for records which (i) reasonably describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly available to any person,”
5 U.S.C. § 552(a)(3)(A), unless the records fall within one of nine narrowly construed exemptions.
See 5 U.S.C. § 552(b); FBI v. Abramson, 456 U.S. 615, 630 (1982). This framework “represents
a balance struck by Congress between the public’s right to know and the government’s legitimate
interest in keeping certain information confidential.” Ctr. for Nat’l Sec. Stud. v. U.S. Dep’t of
Just., 331 F.3d 918, 925 (D.C. Cir. 2003). When an agency withholds documents or parts of
documents, it must explain what it is withholding and the statutory exemptions that apply. See
Vaughn v. Rosen, 484 F.2d 820, 825–28 (D.C. Cir. 1973).
When summary judgment turns upon the applicability of an exemption, the Court must
“ascertain whether the agency has sustained its burden of demonstrating that the documents
requested . . . are exempt[ed] from disclosure.” Assassination Archives & Research Ctr. v. CIA,
334 F.3d 55, 57 (D.C. Cir. 2003) (citations and international quotation marks omitted). Moreover,
pursuant to a 2016 amendment to the FOIA statute, an agency may withhold information pursuant
to an exemption only if it “reasonably foresees that disclosure would harm an interest protected
by” that exemption. 5 U.S.C. § 552(a)(8)(A)(i)(I). This “reasonable foreseeability of harm”
standard requires the withholding agency to provide “context or insight into the specific decision-
making processes or deliberations at issue, and how they in particular would be harmed by
disclosure” of the contested records. Jud. Watch, Inc. v. U.S. Dep’t of Just., No. CV 17-0832
(CKK), 2019 WL 4644029, at *5 (D.D.C. Sept. 24, 2019).
6 I. The withholding of documents was justified under FOIA Exemption 5.
Defendant withheld several responsive entries in this case pursuant to FOIA Exemption 5,
which bars disclosure of “inter-agency or intra-agency memorandums or letters which 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). A document may be properly withheld under Exemption 5 if it satisfies “two
conditions: its source must be a [g]overnment 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.” U.S. Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8
(2001); see also Formaldehyde Inst. v. U.S. Dep’t of Health & Hum. Servs., 889 F.2d 1118, 1121
(D.C. Cir. 1989), quoting Tax’n With Representation Fund v. IRS, 646 F.2d 666, 676 (D.C. Cir.
1981) (Exemption 5 encompasses “the protections traditionally afforded certain documents
pursuant to evidentiary privileges in the civil discovery context,” including “the executive
‘deliberative process privilege.’”).
Here, the agency invoked the attorney-client privilege, the deliberative process privilege,
the attorney work-product privilege, and the presidential communications privilege. Def.’s Mem.
at 4. All have been found to be incorporated in Exemption 5. Loving v. U.S. Dep’t of Def.,
550 F.3d 32, 37 (D.C. Cir. 2008).
A. The Attorney-Client Privilege
Although Exemption 5 “does not itself create a government attorney-client privilege,” the
privilege
has a proper role to play in exemption five cases. . . . In order to ensure that a client receives the best possible legal advice, based on a full and frank discussion with his attorney, the attorney-client privilege assures him that confidential communications to his attorney will not be disclosed without his consent. [There is] no reason why this same protection should not be
7 extended to an agency’s communications with its attorneys under exemption five.
In re Lindsey, 158 F.3d 1263, 1269 (D.C. Cir. 1998), quoting Mead Data Cent., Inc. v. U.S. Dep’t
of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977).
The attorney-client privilege protects confidential communications from clients to their
attorneys made for the purpose of securing legal advice or services, and it “is not limited to
communications made in the context of litigation or even a specific dispute.” Coastal States Gas
Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). The privilege also protects
communications from attorneys to their clients that “rest on confidential information obtained
from the client.” Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997), quoting In re Sealed
Case, 737 F.2d 94, 99 (D.C. Cir. 1984). In the FOIA context, the agency is often the “client,” and
agency lawyers are the “attorneys” for purposes of the attorney-client privilege. See In re Lindsey,
158 F.3d at 1269, citing Coastal States, 617 F.2d at 863.
The DOJ’s declarant explains that “[t]he principal function of OLC is to assist the Attorney
General in his role as legal adviser to the President of the United States and to departments of
agencies of the Executive Branch.” Anderson Decl. ¶ 2. The OLC “provides advice and prepares
opinions addressing a wide range of legal questions involving the operations of the Executive
Branch,” and its legal advice and analysis “inform[s] the decisionmaking of executive branch
officials.” Anderson Decl. ¶ 2.
The documents involved here are lists of OLC opinions, and defendant has invoked the
attorney-client privilege with respect to a small percentage of the opinions on the list, redacting
“only the name of the recipient and the title or brief description of the relevant entries.” Def.’s
SOF ¶¶ 24–25; Pl.’s Resp. SOF ¶¶ 24–25. The redactions amount to less than 4% of the 589
8 entries, in lists covering a period of twenty-one years. Anderson Decl. ¶ 27. According to the
agency’s declarant, the opinions discussed in the entries “were authored by OLC attorneys and
provided to OLC’s clients throughout the Executive Branch” who sought confidential legal advice.
Anderson Decl. ¶ 23. The titles that have been redacted are “more than just general subjects,” but
rather, they “identify the legal questions presented, often with specific reference to particular
statutory provisions and subparts,” and some of the descriptions “disclose the potential decisions
under consideration by the client agency.” Anderson Decl. ¶ 22. Disclosure of the information
contained in the redacted titles would therefore reveal a “particular client’s confidential request
for legal advice on a particular matter at a particular time” when paired with the identity of the
client and the already-disclosed dates. Anderson Decl. ¶ 23.
Given that the titles of certain documents on the lists, in conjunction with dates and client
names, would reveal the subject matter of requests for advice, the Court finds that the redacted
portions of the list fall within the scope of the attorney-client privilege. In the absence of any
contrary evidence or showing of bad faith, the Court is bound to accept the agency’s declaration,
which explains why disclosure of the redacted information would reveal the Executive Branch’s
confidential requests for legal advice and disrupt the relationship of trust that is critical for the
attorney-client relationship. The OLC “has been the most significant centralized source of legal
advice within the Executive Branch.” Citizens for Resp. & Ethics in Washington v. U.S. Dep’t of
Just., 846 F.3d 1235, 1238 (D.C. Cir. 2017) (citation omitted). Even though plaintiff has not
requested the OLC opinions themselves, the sworn declaration makes clear that disclosure of the
few redacted titles, recipients, and dates together would reveal “a particular client’s confidential
request for legal advice on a particular matter at a particular time,” which fits squarely within the
9 attorney-client privilege. 3 Anderson Decl. ¶ 23; see also Pub. Citizen, Inc. v. U.S. Dep’t of Educ.,
388 F. Supp. 3d 29, 46 (D.D.C. 2019) (finding that subject line of email chain was properly
withheld under FOIA Exemption 5 and the attorney-client privilege “[b]ecause disclosure of the
subject line would reveal [the agency’s] motivation for seeking legal counsel and specifics about
the nature of the legal services rendered”); see also Cause of Action Inst. v. U.S. Dep’t of Just.,
330 F. Supp. 3d 336, 350 (D.D.C. 2018) (explaining that “correspondence” and other documents
that grow out of the attorney-client relationship are protected if they “reveal the motive of the
client in seeking representation”) (quotations and citations omitted). Because protecting the
confidentiality of OLC’s legal advice “ensure[s] that the President, his advisers, and other
Executive Branch officials continue to request and rely on frank legal advice from OLC and other
government attorneys on sensitive matters,” Anderson Decl. ¶ 28, the attorney-client privilege
applies just as it would to any other attorney-client relationship and justifies the withholding of the
information at issue. 4
3 Plaintiff cites Vaughn, 484 F.2d at 826, and argues that defendant must provide a “detailed justification” for each withholding, which here, would “include the subject matter of the document at issue.” Pl.’s Mem. at 11. Defendant maintains that revealing the titles would reveal the subject matter of the sensitive memoranda, and that the need to “assur[e] that allegations of exempt status are adequately justified” does not require agencies to disclose “factual descriptions that if made public would compromise the secret nature of the information . . . .” Vaughn, 484 F.2d at 826; Anderson Decl. ¶ 23. The Court agrees with the defendant that disclosing the subject matter would compromise the confidentiality of the legal advice sought.
4 Given the Court’s finding that all of the redacted information falls well within the attorney- client privilege, it need not address the arguments that some of the redacted information is also covered by the deliberative process, attorney work product, or presidential communications privileges, although the D.C. Circuit has held that the presidential communications privilege protects not only communications directly involving and documents actually viewed by the President, but also “documents ‘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, 550 F.3d at 37 (alterations in original), quoting Judicial Watch, Inc., v. U.S. Dep’t of Justice, 365 F.3d 1108, 1114 (D.C. Cir. 2004).
10 II. Segregability
“Before approving the application of a FOIA exemption, the district court must make
specific findings of segregability regarding the documents to be withheld.” Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (collecting cases). An agency must release
“[a]ny reasonably segregable portion of a record,” 5 U.S.C. § 552(b), unless the non-exempt
portions are “inextricably intertwined with exempt portions” of the record. Mead Data Cent., Inc.,
566 F.2d at 260; Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002). “In
order to demonstrate that all reasonably segregable material has been released, the agency must
provide a ‘detailed justification’ for its non-segregability,” although “the agency is not required to
provide so much detail that the exempt material would effectively be disclosed.” Johnson, 310
F.3d at 776, citing Mead Data Cent., Inc., 566 F.2d at 261.
Just as with the exemption analysis, “[a]gencies are entitled to a presumption that they
complied with the obligation to disclose reasonably segregable material,” Sussman, 494 F.3d at
1117, citing Boyd v. Crim. Div. of U.S. Dep’t of Just., 475 F.3d 381, 391 (D.C. Cir. 2007), and “[a]
court may rely on government affidavits that show with reasonable specificity why documents
withheld pursuant to a valid exemption cannot be further segregated.” Juarez v. U.S. Dep’t of
Just., 518 F.3d 54, 61 (D.C. Cir. 2008), citing Armstrong v. Exec. Off. of the President, 97 F.3d
575, 578 (D.C. Cir. 1996). A district court must make an express finding on segregability. Juarez,
518 F.3d at 60, citing Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007).
The Department’s declarant avers that she “personally reviewed line-by-line the redacted
information at issue to determine whether any further withheld portion or portions could be
released without divulging information protected by one or more of the applicable FOIA
exemptions and determined that the redacted portions do not contain reasonably segregable,
11 nonexempt information.” Anderson Decl. ¶ 32. The declaration further states that the redacted
material has not been publicly adopted, incorporated by reference by any policymaker, disclosed
publicly, or otherwise referred to in the public for any waiver of the privileges to apply. See
Anderson Decl. ¶¶ 33–34. Plaintiff does not address segregability in any of its memoranda, but
mentions it once in response to defendant’s statement of material facts: it denies defendant’s
statement that “[t]he redacted information does not contain reasonably segregable, nonexempt
information,” stating that this is “a legal issue in dispute.” Def.’s SOF ¶ 43; Pl.’s Resp. SOF ¶ 43.
Considering all of the segregation determinations in combination with defendant’s
declaration, the Court is satisfied that the agency has met its segregability requirement. See Juarez,
518 F.3d at 61 (finding a “page-by-page” review and averments in a declaration that each piece of
information withheld could not be reasonably segregated to be sufficient for defendant to meet
segregability requirement); see also Johnson, 310 F.3d at 776 (holding that agency fulfilled its
obligation to show why a document could not be further segregated based on declarant’s statement
that she personally conducted a line-by-line review of each document withheld to make the
segregability determination). The Court will therefore grant defendant’s motion for summary
judgment on the issue of segregability .
CONCLUSION
For all of these reasons, the Court will GRANT defendant’s motion for summary judgment
[Dkt. # 54] and DENY plaintiff’s cross-motion for summary judgment [Dkt. # 56]. A separate
order will issue.
12 AMY BERMAN JACKSON United States District Judge
DATE: September 20, 2024