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97d1e76d-0783-432e-8055-cc64462fec71 | . These descriptions are too vague for the Court to discern “the ‘function and significance of the documents in the agency’s decisionmaking process.’” Arthur Andersen, 679 F.2d at 258 (quoting Taxation with Representation Fund v. IRS, 646 F.2d 666, 678 (D.C. Cir. 1981)) | National_Security_Counselors_2013-08-15.txt |
8cac5594-adae-4efe-bb5f-c7aad23a3b9a | . Indeed, the CIA does not describe in any amount of detail how “the process by which the [CIA] comes to a final determination in response to FOIA requests” works and how these withheld pieces of information fit into that process. See Third Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
0fa3eb8b-6f95-4793-a1bc-1ec486c8e38b | . Taking “preliminary search results” as just one example: Are “preliminary search results” generated by a lower-level analyst and then transmitted to a higher-level analyst for approval to perform further searching? How does the agency use such “preliminary search results” in making decisions about responding to FOIA requests | National_Security_Counselors_2013-08-15.txt |
ad181fb0-21bb-4afd-b9ba-37cbe5c3b293 | ? Do “preliminary search results” contribute to decisions about the appropriate scope of a search, the burdens triggered by the search, or whether information is responsive or subject to withholding | National_Security_Counselors_2013-08-15.txt |
186a4a02-9204-4ea9-a4c2-636b07369bc3 | ? Finally, the overwhelming majority of the CIA’s Vaughn entries provide no information whatsoever regarding “the nature of the decisionmaking authority vested in the office or person issuing the disputed documents” or “the positions in the chain of command of the parties to the documents” withheld under the deliberative process privilege | National_Security_Counselors_2013-08-15.txt |
988b37cd-1add-4d16-b613-725f8196f49d | . See Arthur Andersen, 679 F.2d at 258 (internal quotation marks omitted); see also, e.g., Third Lutz Decl. Ex. K pt. 1, at 3, 12, 19, 106, 114; Third Lutz Decl. Ex. K pt. 3, at 1–19, 25–26, 30–31, 65–66. The CIA does provide this information about the two documents withheld in part under the deliberative-process 128 privilege in No. 11-444, see First Lutz Decl. Ex | National_Security_Counselors_2013-08-15.txt |
a4c13e4c-2efd-4e75-9bc9-9b372b0373ec | . DD at 17, 141, but the descriptions of the decisionmaking authority are generic, stating that the withheld information is a “recommendation from the [FOIA] analyst to his/her supervisor,” id. at 17, and a “recommendation from the analysts to senior reviewers,” id. at 141 | National_Security_Counselors_2013-08-15.txt |
1908567c-5365-4732-9d07-4a61fda39ef2 | . The CIA, however, does not describe the decisionmaking authority of the “supervisor” or “senior reviewers,” such as whether these personnel had the authority to approve withholding decisions, scope-of-search decisions, or other decisions “about how to process this [FOIA] request,” see id. at 17, 141 | National_Security_Counselors_2013-08-15.txt |
55387e9c-64af-4b8d-9ac9-145aa22130ea | . Without this information made explicit, the Court is unable to conclude that these communications were both deliberative and pre-decisional. In its Vaughn index in No | National_Security_Counselors_2013-08-15.txt |
15bc1681-781b-4741-8a3a-5811eaed10b3 | . 11-445, in the instances where the CIA provides some description of the identities of the parties to a document withheld under the deliberative process privilege, the descriptions do not disclose the decisionmaking authority vested in those individuals. See, e.g., Third Lutz Decl. Ex. K pt | National_Security_Counselors_2013-08-15.txt |
dfad5d8d-63d4-444f-bf2e-99c7d3d275cb | . 1, at 14 (withholding “1 page memorandum from Information Review Officer to IRO group regarding preliminary determinations in the processing of F-2010-00467”); id. at 63 (withholding “a 1 page e-mail between Information Review Officers regarding the processing of a FOIA request”); id. at 92 (withholding “1-page e- mail between CIA officers regarding the processing of a FOIA request”) | National_Security_Counselors_2013-08-15.txt |
1aa0473d-9f94-4972-867b-20e395045a24 | . Although the CIA’s descriptions suggest that these communications may be among peers about a FOIA request, the CIA does not say what decisionmaking authority is vested in Information Review Officers or the “IRO group,” such that the Court can discern whether these communications “reflect the give and take of the deliberative process.” See Pub. Citizen v. OMB, 598 F.3d 865, 876 (D.C. Cir | National_Security_Counselors_2013-08-15.txt |
0d5ebd59-f974-4bec-9095-0250d861df00 | . 129 2010).61 The CIA also does not specify the “the positions in the chain of command of” the generic “CIA officers” referred to in other withheld documents. See Arthur Andersen, 679 F.2d at 258 (internal quotation marks omitted). Accordingly, the Court denies summary judgment to the CIA with respect to the information that the agency withheld under the deliberative process privilege | National_Security_Counselors_2013-08-15.txt |
a959c2c9-5057-458c-8174-0bd97ee0067a | . If the CIA chooses to continue to withhold this information, the agency must submit a supplemental Vaughn index that adequately justifies that withholding. b) DIA, ODNI, and DOJ The submissions of the DIA, ODNI, and DOJ suffer from similar deficiencies. For starters, neither the ODNI nor the DOJ submitted a Vaughn index that describes the factual context of each withheld document | National_Security_Counselors_2013-08-15.txt |
ec2bc77d-d0c6-4523-a378-4d31f8eb753b | . The ODNI states in its declaration that “[i]nformation was withheld pursuant to FOIA Exemption 5 on 13 of the 34 pages released to the plaintiff,” Hackett Decl. , and the ODNI attaches redacted versions of these thirty-four pages to its declaration, see Hackett Decl. Exs. C–D, No. 11-445, ECF No. 29-8 | National_Security_Counselors_2013-08-15.txt |
fb981c96-e5ce-47c1-b55a-85dfd5687386 | . The ODNI’s declaration, however, does not identify which of the thirty-four pages contains information withheld under Exemption 5, and only nine of the thirty-four redacted pages explicitly indicate (b)(5) as a basis for withholding information | National_Security_Counselors_2013-08-15.txt |
c0b60826-769b-42d9-a79f-e673bfca43b7 | . The ODNI thus apparently leaves it to the Court to infer which portions of which of the thirty-four heavily redacted (and sometimes illegibly blurry) pages were withheld under Exemption 5 | National_Security_Counselors_2013-08-15.txt |
3f73bcb2-3d84-4f89-95de-e00eb9d41644 | . This sort of submission is utterly unhelpful to the Court in determining whether a FOIA exemption applies to particular portions of particular records, especially in the absence of a document-by-document Vaughn index that could explain the 61 This deficiency is exacerbated by the other deficiencies previously discussed, such as the lack of any information about the particular decision at issue | National_Security_Counselors_2013-08-15.txt |
4efc570b-1d13-43e8-a171-08854ea23162 | and the function and significance of these communications in that particular decisionmaking process | National_Security_Counselors_2013-08-15.txt |
eb9a3b8f-b8c4-48df-a5e9-6872abbaf3b3 | . 130 factual context of each withheld record.62 When a document-specific explanation is required, as it is when claiming the deliberative process privilege, see Coastal States, 617 F.2d at 867, the government needs to specify exactly which records (and portions of records) are exempt, as well as provide a document-specific explanation for why the material is exempt | National_Security_Counselors_2013-08-15.txt |
e3d08a46-e344-44f0-b833-b94ea4353ed7 | . Additionally, similar to the CIA, the ODNI provides only generic summaries of the documents withheld, stating that they “contain[] information that reflects the pre-decisional deliberations of ODNI employees on the proper handling of certain FOIA requests.” See Hackett Decl. | National_Security_Counselors_2013-08-15.txt |
7657dd54-2896-47f0-9ecb-07ef9a1b3ce2 | . In this regard, both the CIA and the ODNI consistently tack on conclusory labels like “internal,” “deliberative,” “candid,” and “pre-decisional,” see id.; Third Lutz Decl. ; Third Lutz Decl. Ex. KK passim, but such “buzz-word adjectives” are no substitute for “a meaningful description of the factual context surrounding a document.” See Muttitt v. Dep’t of State, No | National_Security_Counselors_2013-08-15.txt |
34263ad4-6fa3-4c33-8b36-c158b6481abe | . 10- 202, 2013 WL 781709, at *18 (D.D.C. Mar. 4, 2013). The same holds true for the DIA, which provides a generic description of withheld material in its declaration, see Second Williams Decl. (stating that documents “involve detailed deliberations between elements of DIA and outside agencies about the appropriate FOIA responses”), and boilerplate labels in its Vaughn entries, see, e.g | National_Security_Counselors_2013-08-15.txt |
89e88b43-97f8-4584-b32e-ec84e676bc40 | ., Second Williams Decl. Ex. A at 1 (withholding letter that “contains comments and recommendations, and its content speaks to the deliberative process”). Finally, the DOJ’s declaration is perhaps the most barebones of them all with regard to the deliberative process privilege, stating that the withheld documents “are deliberative because they . . | National_Security_Counselors_2013-08-15.txt |
a266891c-97f4-49de-87c4-18a8569e9d6b | . aid [Executive Branch officials’] deliberations about whether to take certain actions in performing their duties 62 For example, the ODNI claims Exemption 5 to withhold information from an e-mail with the subject line “Re: FOIA requests—Do these belong to CIA or ODNI?” See Hackett Decl. Ex. D at 3, No. 11-445, ECF No. 29-8 | National_Security_Counselors_2013-08-15.txt |
29322cec-e1e1-4f8c-bbbb-b8040a00f298 | . It is not clear whether ODNI is claiming the attorney-client privilege, the deliberative process privilege, or both with respect to this communication. Almost the entire text of the e-mail is redacted, other than the subject line and the salutation to the recipient, and the Court has no document-specific context to determine whether any privilege applies to this communication | National_Security_Counselors_2013-08-15.txt |
0ba9387c-e4fa-4fcf-812a-7d90fe2b77d0 | . 131 or prerogatives” and “are pre-decisional because they were prepared for the consideration of those Executive Branch officials before they had decided whether to take such actions.” Colborn Decl. . This kind of conclusory and circular description of withheld documents is woefully insufficient to meet the FOIA summary judgment standard | National_Security_Counselors_2013-08-15.txt |
59a565d8-4572-4a39-bfa4-486805a86f2d | . Accordingly, these deficiencies in the submissions of the CIA, ODNI, DIA, and DOJ regarding their invocation of the deliberative-process privilege make it impossible for the Court to grant these agencies summary judgment on that issue | National_Security_Counselors_2013-08-15.txt |
8f30fd52-021e-43d5-ace0-3c077d77c04e | . Accordingly, the Court concludes “‘not that the documents are not exempt as a matter of law, but that the agenc[ies] ha[ve] failed to supply’ in [their] Vaughn submissions ‘the minimal information necessary to make a determination’ concerning applicability of the deliberative process privilege.” EFF, 826 F. Supp. 2d at 173 (quoting Coastal States, 617 F.2d at 861) | National_Security_Counselors_2013-08-15.txt |
970a7ce2-2a7b-4594-9658-b784ac557707 | . To the extent that the CIA, ODNI, DIA, or DOJ withhold any documents, in whole or in part, under Exemption 5 solely on the basis of the deliberative-process privilege, the Court denies summary judgment to those agencies with respect to the withholding of those documents, or portions of documents, pursuant to Exemption 5.63 2 | National_Security_Counselors_2013-08-15.txt |
73d50690-bcf7-4e3a-b7e7-fd81c4c1d05f | . Attorney-Client Privilege The CIA, DIA, ODNI, and DOJ also invoke the attorney-client privilege to withhold certain information under Exemption 5. “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) | National_Security_Counselors_2013-08-15.txt |
5ae67a6a-d04b-4ff3-a476-46288d67d3a1 | . “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Id | National_Security_Counselors_2013-08-15.txt |
88d93213-1643-467b-abb6-09f3ce55ef33 | . “[T]he privilege applies only if the person 63 The DOJ clearly relies on both the deliberative process privilege and the attorney-client privilege, in the alternative, as to all sixteen disputed OLC opinions that were withheld under Exemption 5. See Colborn Decl. ¶–15 | National_Security_Counselors_2013-08-15.txt |
20547dad-a39f-494f-8060-ea63df32fa88 | . 132 to whom the communication was made is ‘a member of the bar of a court’ who ‘in connection with the communication is acting as a lawyer’ and the communication was made ‘for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.’” In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998) (quoting In re Sealed Case, 737 F | National_Security_Counselors_2013-08-15.txt |
4fd917cd-a56c-4dff-8aa2-77222a26d5ed | .2d 94, 98–99 (D.C. Cir. 1984)). The Supreme Court has also clearly recognized that “the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.” Upjohn, 449 U.S. at 390 | National_Security_Counselors_2013-08-15.txt |
e451032f-534a-4d63-935c-5612ba98bc90 | . “In the governmental context, the ‘client’ may be the agency and the attorney may be an agency lawyer.” Tax Analysts, 117 F.3d at 618. a) CIA Beginning with the CIA’s submissions, the CIA states in its declaration submitted in No | National_Security_Counselors_2013-08-15.txt |
ba35e77f-8403-453c-969a-88894671492c | . 11-445 that “[s]ome of the records for which information has been withheld pursuant to Exemption (b)(5) contain confidential communications between CIA staff and attorneys within the CIA’s Office of General Counsel about the processing of certain FOIA requests.” Third Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
d5c675ee-d7b4-4f2f-a5b2-5e3f8dd84732 | . The CIA also states in this declaration that “[t]hese communications relate to matters for which the attorneys provided legal advice, and were prepared with the joint expectation that they would be held in confidence.” Id. In its declaration submitted in No. 11-444, the CIA declarant provides an almost identical statement. See First Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
dba68b79-2a8a-42a1-b15c-1918f3e13339 | . Turning to the CIA’s Vaughn indices, the index provided in No. 11-445 contains the repeated statement that the document in question “contains advice from legal counsel.” See Third Lutz Decl. Ex. K pt. 3, at 151, 153; Third Lutz Decl. Ex. K pt. 4, at 1–4, 8, 25, 143; Third Lutz Decl. Ex. K pt. 5 at 10, 13, 26–28, 36–39, 42. The Vaughn index provided by the CIA in No | National_Security_Counselors_2013-08-15.txt |
422849d5-a8c9-49c6-a06a-8eadfb1d8636 | . 11-444 parrots the same language contained in the CIA’s declarations, stating for each withheld document that it “contains confidential communications between a CIA attorney and CIA officers relating to a 133 matter for which the officers sought legal advice.” See First Lutz Decl. Ex. DD at 54, 66, 102, 121 | National_Security_Counselors_2013-08-15.txt |
1005cf0d-98d3-4187-8789-80b28afad700 | .64 The statements in the CIA’s submissions are largely insufficient for the Court to conclude that the documents in question were sent “for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.” In re Grand Jury, 475 F.3d 1299, 1304 (D.C. Cir. 2007) (internal quotation marks omitted) | National_Security_Counselors_2013-08-15.txt |
b80bd800-eb00-466c-8583-8a9917317c63 | . Specifically, there are three deficiencies in the CIA’s submissions that prevent the Court from granting summary judgment regarding the majority of the CIA’s invocations of the attorney-client privilege. First, in both Nos. 11-445 and 11-444, the repeated and carefully circumscribed statement that communications “relate to matters for which attorneys provide legal advice,” see, e.g | National_Security_Counselors_2013-08-15.txt |
3eb43f86-3e14-40d8-916a-2f669b2e7355 | ., First Lutz Decl. ; Third Lutz Decl. , does not necessarily support the conclusion that such communications are privileged | National_Security_Counselors_2013-08-15.txt |
ae1e8186-6cb7-41a3-afb4-7090b890648e | . For example, if an attorney provided legal advice about a certain matter at a given point in time, and a staff member separately communicated about that matter at a later point in time, that latter communication is not privileged simply because it is “relate[d] to” the matter for which advice was previously given | National_Security_Counselors_2013-08-15.txt |
89dceea2-d313-4a14-afb8-a7dfa2ee4c4b | . Rather, to be privileged, the later communication must be made for the primary purpose of seeking legal advice on that matter. The language of the CIA’s declaration addresses only the general subject of the communications in question, but this description is too imprecise to establish the primary purpose of the communications | National_Security_Counselors_2013-08-15.txt |
caff3375-dac6-4c1f-8780-477baf144381 | . As a result, the Court cannot grant summary judgment to the 64 The CIA’s Vaughn index in No. 11-445 also states, without any elaboration, that three documents “contain[] . . . attorney-client privileged information.” See Third Lutz Decl. Ex. K pt. 4, at 64, 67, 70. Each of these three documents were only withheld in part | National_Security_Counselors_2013-08-15.txt |
e0f6db7b-4bfc-4723-90c2-196664c49d8b | . Additionally, the same Vaughn index describes eight other documents as withheld in full under Exemptions 3 and/or 5 because they purportedly contain “attorney work product,” see Third Lutz Decl. Ex. K pt. 3, at 122, 128, 132–33, 137, 142, 147, 149, but the CIA does not assert the attorney work- product doctrine in its declaration or in its briefing | National_Security_Counselors_2013-08-15.txt |
c1e52c02-f67a-4a41-9a4c-05e4698552aa | . Therefore, the Court construes these passing references in the CIA’s Vaughn index to be assertions of the attorney-client privilege, rather than the attorney work-product doctrine. To the extent they are attempts to invoke the attorney work-product doctrine, they are insufficient because the CIA provides no justification for invoking that doctrine in these eight documents | National_Security_Counselors_2013-08-15.txt |
70abd1d5-67bc-4acc-a430-d08729884a6a | . 134 CIA regarding communications that merely “relate to matters for which the attorneys provided legal advice.” The CIA must provide more information about these communications to establish that they were sent or received for the primary purpose of seeking or providing legal advice. Second, the CIA’s declarations in Nos | National_Security_Counselors_2013-08-15.txt |
2f995e11-45ff-4c89-af37-d9f4a76c8965 | . 11-444 and 11-445 state that the information withheld under the attorney-client privilege “was prepared with the joint expectation of the attorneys and CIA staff that they would be held in confidence.” First Lutz Decl. ; see also Third Lutz Decl. . “The government,” however, “must demonstrate confidentiality in fact, whatever its subjective intentions may have been.” Am. Immigration Council v. U | National_Security_Counselors_2013-08-15.txt |
52f9eb3e-4802-47f0-8384-0fcdf8790094 | .S. Dep’t of Homeland Sec., No. 12-856, 2013 WL 3186061, at *18 (D.D.C. June 24, 2013) (citing In re Sealed Case, 737 F.2d at 100). The “subjective intentions” of confidentiality put forth by the CIA are therefore insufficient to establish “confidentiality in fact.” Id. The third and final deficiency manifests only in the CIA’s submissions in No. 11-445 | National_Security_Counselors_2013-08-15.txt |
d49ff915-0bb5-46b7-9541-02d023027699 | . Twenty-three of the thirty-two documents withheld from release by the CIA under the attorney- client privilege in No. 11-445 were withheld in their entirety.65 See Third Lutz Decl. Ex. K pt. 1, at 3; Third Lutz Decl. Ex. K pt. 3, at 122, 128, 132–33, 137, 142, 147, 149, 151–53; Third Lutz Decl. Ex. K pt. 4, at 1–4, 8, 25, 143; Third Lutz Decl. Ex. K pt. 5, at 26–28, 42 | National_Security_Counselors_2013-08-15.txt |
4485be2d-2886-4631-bad9-63af12c6b8ae | . Although the CIA’s Vaughn index states that these twenty-three records “contain[] legal advice,” that fact does not necessarily support the wholesale withholding of such documents. Some portions of these documents may be protected by the attorney-client privilege, but the CIA’s explanation does not support the withholding of entire documents | National_Security_Counselors_2013-08-15.txt |
d7c5a6e9-0101-402a-a94c-5eef5b1c9c6c | . What is more, for the twenty-three documents that were withheld in full in No | National_Security_Counselors_2013-08-15.txt |
21bc095d-7747-4863-9267-9b841599df91 | . 11-445, the CIA’s submissions do not specify whether Exemption 5 65 The twenty-three documents withheld by the CIA in full under the attorney-client privilege are identified in the CIA’s Vaughn index by the following Bates numbers: C01255579, C05360946, C05360952, C05360956, C05362492, C05363265, C05363815, C05365820, C05366449, C05366894, C05366895, C05366902, C-5371430, C05371431, C05371432, | National_Security_Counselors_2013-08-15.txt |
87b48202-78b7-4bd1-b100-57654fbe6ebf | C05371433, C05375987, C05403192, C05549840, C05486085, C05498760, C05498761, and C05548237 | National_Security_Counselors_2013-08-15.txt |
d678f820-edf0-4e7d-9e85-c4fdc32644ec | . 135 is claimed as to entire documents or only portions of documents | National_Security_Counselors_2013-08-15.txt |
8e87fa57-eb54-4aec-bc6e-fcd5dc746a73 | . Particularly in light of the Court’s holding above regarding the scope of the CIA Act and the fact that the CIA also cited the CIA Act to withhold each of these twenty-three documents, the CIA must explain whether it is asserting the attorney-client privilege as to all or only a portion of the twenty-three documents in which that privilege is asserted | National_Security_Counselors_2013-08-15.txt |
8511c518-2a1e-41d2-ad0d-d628784d1a3c | . Further, if the CIA is only asserting the privilege as to certain portions of a given record, the CIA must provide an explanation for why the privilege applies to each portion that is withheld. The three deficiencies described above preclude summary judgment to the CIA as to the invocation of the attorney-client privilege to withhold twenty-three documents in full in No | National_Security_Counselors_2013-08-15.txt |
68aacf3d-7b46-44d9-9082-e6b5713bc43a | . 11- 445 as well as to withhold four documents in No. 11-444.66 The Court thus will not grant summary judgment to the CIA with respect to these twenty-seven documents. As a result, the Court denies summary judgment to CIA regarding its Exemption 5 withholdings in No. 11-444 and 11-445, with the exception of the nine documents that were withheld in part under the attorney-client privilege in No | National_Security_Counselors_2013-08-15.txt |
83741fa5-8f51-4e9b-b3c7-67a0def33825 | . 11-445.67 As to those nine documents, the Court concludes that the CIA has provided a sufficiently logical and plausible explanation as to why the attorney- client privilege applies, and therefore summary judgment is appropriate. See ACLU/DOD, 628 F.3d at 619. Accordingly, the Court will deny summary judgment to the CIA with regard to Count Seventeen in No. 11-444 and Counts One and Seven in No | National_Security_Counselors_2013-08-15.txt |
5bba4048-0eb5-46bc-8571-319a0ab0eb48 | . 11-445, insofar as the CIA moved for summary judgment on those counts with respect to its Exemption 5 withholding decisions. Additionally, the Court will grant in part and deny in part summary judgment to the CIA with 66 These four documents are identified in the CIA’s Vaughn index by the following Bates numbers: C01489077, C05289038, C05430872 and C01335771 | National_Security_Counselors_2013-08-15.txt |
54b5b124-8f5b-450d-93db-3434bcc3baae | . 67 These documents have the following Bates numbers in the CIA’s Vaughn index: C05520575, C05520577, C05520579, C05461394, C05464372, C05520566, C05520567, C05520571 and C05520573. 136 regard to Counts Two and Three in No. 11-445 | National_Security_Counselors_2013-08-15.txt |
28046e39-c2a9-4506-9103-df6acf1467c0 | . The Court will grant summary judgment on these two counts with respect to the information redacted from nine documents under the attorney-client privilege,68 and will deny summary judgment regarding Exemption 5 withholdings as to all other documents at issue in Counts Two and Three in No. 11-445 | National_Security_Counselors_2013-08-15.txt |
059f8dee-825f-45c9-b490-535bca814f7b | . b) DIA and ODNI As with the deliberative-process privilege, the submissions of the DIA and ODNI regarding the invocation of the attorney-client privilege mirror many of the same deficiencies contained in the CIA’s submissions | National_Security_Counselors_2013-08-15.txt |
d0df859d-bed0-4e30-83d5-154507d9deb3 | . Beginning with the DIA, that agency’s Vaughn index repeats the exact same boilerplate language in each entry—often using identical boilerplate phrases twice in the same entry. See, e.g, Second Williams Decl. Ex. A at 1–4 | National_Security_Counselors_2013-08-15.txt |
d3b1800f-db9d-458b-9b7a-7e103393cbf9 | . Also, curiously, the DIA’s Vaughn index does not reference the attorney-client privilege or any element of that privilege, but instead only references the attorney work-product doctrine. See, e.g., id. (stating that documents were “withheld . . . as . . . attorney work product” because they were “prepared in anticipation or in response to civil litigation”) | National_Security_Counselors_2013-08-15.txt |
760ebee6-0644-4861-baa7-82287138244a | .69 Thus, although the DIA’s declaration references the attorney-client privilege in passing, see First Williams Decl. , and the defendants’ briefing states that the DIA withheld documents under the attorney-client privilege, see Defs.’ First 445 Mem. at 25; Defs.’ First 445 Reply at 15–16, the DIA does not attempt to establish the applicability of the attorney-client privilege in its Vaughn index | National_Security_Counselors_2013-08-15.txt |
e69cb77f-c3b6-4f6d-911e-590a12c7ca12 | . Nothing in the DIA’s submissions establish that any of the withheld communications were made “for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance 68 See supra note 67. 69 The Supreme Court established the work-product doctrine in Hickman v. Taylor, 329 U.S | National_Security_Counselors_2013-08-15.txt |
de194171-5246-4fc2-a2d0-622b90b21dbc | . 495, 510 (1947), in which the Court recognized that “it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel | National_Security_Counselors_2013-08-15.txt |
53c681bd-6199-473f-af33-a752b9b4edc8 | .” Therefore, any attempt to obtain the work product of any attorney, such as “interviews, statements, memoranda, correspondence, briefs, mental impressions,[or] personal beliefs,” simply “fall[s] outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims.” Id. at 510–11 | National_Security_Counselors_2013-08-15.txt |
1853f395-b573-44a5-b327-cec1a77ecc8f | . Generally, the work product of an attorney is unavailable in civil litigation if it was “prepared in anticipation of litigation.” See FED. R. CIV. P. 26(b)(3). 137 in some legal proceeding.” In re Grand Jury, 475 F.3d at 1304 (internal quotation marks omitted) | National_Security_Counselors_2013-08-15.txt |
8c5d5dae-beef-40ec-9913-6c8f45761779 | . Hence, the Court denies summary judgment to the DIA regarding its Exemption 5 withholding decisions insofar as they were based upon the attorney-client privilege. The Court will discuss the DIA’s apparent invocation of the attorney work-product doctrine below. See infra Part III.J.3 | National_Security_Counselors_2013-08-15.txt |
478193ad-2869-4bbf-be82-fee2f7a0f2c6 | . As to the ODNI, as discussed above, that agency did not submit a document-by- document Vaughn index, and therefore the Court can only reference the generally applicable statements contained in the agency’s declaration to determine whether the attorney-client privilege properly applies to any of its Exemption 5 withholding decisions | National_Security_Counselors_2013-08-15.txt |
574a5997-3ae5-4143-a642-4b31cabbb80f | . The ODNI’s declarant avers that the documents withheld under the attorney-client privilege and Exemption 5 “contain confidential communications between ODNI staff and an attorney in the ODNI’s Office of General Counsel.” Hackett Decl. | National_Security_Counselors_2013-08-15.txt |
afae99a8-5a22-4884-8e45-aefdea3d7961 | . According to the ODNI’s declarant, “[t]he staff of the [ODNI’s Information Data and Management Group] routinely relies on OGC for legal advice on a wide variety of FOIA matters,” and in the withheld communications, “IDMG’s FOIA staff provides OGC with relevant information in order for OGC to evaluate and provide legal advice.” Id | National_Security_Counselors_2013-08-15.txt |
4a015da6-2141-43cb-bf10-01023ca1254f | . The ODNI’s declarant further states that “[t]he information and advice was prepared with the joint expectation of the attorneys and IDMG staff that they would be held in confidence.” Id. As discussed above, “[t]he government must demonstrate confidentiality in fact, whatever its subjective intentions may have been.” Am | National_Security_Counselors_2013-08-15.txt |
5f94130b-2048-421a-80d9-9dcb0e8d87cf | . Immigration Council, 2013 WL 3186061, at *18 (citing In re Sealed Case, 737 F.2d at 100). The Court thus cannot grant summary judgment on the grounds that ODNI personnel “expect[ed]” their communications to be held in confidence. Accordingly, the Court denies summary judgment to the ODNI on Count Six in No. 11-445 regarding its Exemption 5 withholding decisions | National_Security_Counselors_2013-08-15.txt |
82084263-0f34-45d0-820e-87283b54ab6c | . 138 c) DOJ Finally, as to the DOJ, the plaintiff does not seriously contend that the attorney-client privilege is inapplicable to the sixteen OLC opinions withheld under Exemption 5 | National_Security_Counselors_2013-08-15.txt |
4cfc1a9d-2eb8-47b3-a2a4-4da454827ddf | . Indeed, the Court concludes that the attorney-client privilege does apply to the sixteen OLC opinions because they “embody legal advice that was provided in confidence at the request of and to Executive Branch officials.” Colborn Decl. . The DOJ’s declarant explains that the OLC’s “principal function” is to provide legal advice to the President and Executive agencies, id | National_Security_Counselors_2013-08-15.txt |
7585ed6b-1a67-4c4f-a8ca-f6fbd4a19aaf | . , and “[a]lthough OLC publishes some opinions and makes discretionary releases of others, OLC legal advice is generally kept confidential,” id. | National_Security_Counselors_2013-08-15.txt |
693a687f-802e-4bf3-bc34-d5572658f763 | . It is clear from the DOJ’s declaration that the primary purpose of these opinions was to convey legal advice to the Executive branch, and therefore so long as the communications were confidential, the attorney-client privilege applies to protect them from FOIA disclosure | National_Security_Counselors_2013-08-15.txt |
5edf42fc-b149-4b9a-a857-e284a631980e | . The plaintiff contends, however, that the DOJ should be foreclosed from invoking the attorney-client privilege as to at least five of the sixteen OLC opinions withheld under that privilege because the plaintiff says that these five opinions have been officially disclosed in the public domain.70 See Pl.’s First 445 Opp’n at 32–33 | National_Security_Counselors_2013-08-15.txt |
0758ba36-0101-4963-b82a-310d5406a5a3 | . Similar to the plaintiff’s argument above as to the CIA’s Exemption 1 withholdings, see supra Part III.F.1, the plaintiff contends that “[t]his evidence casts significant doubt on the good faith of OLC, and the Court should order DOJ to immediately confirm that none of the information in any of these withheld opinions has been previously officially disclosed.” Pl | National_Security_Counselors_2013-08-15.txt |
0963ca40-b9d9-4552-a9fa-6fce78393026 | .’s First 445 Opp’n at 33 (emphasis in original) | National_Security_Counselors_2013-08-15.txt |
b05e50e9-544e-4305-8c28-39e684bd7f80 | . As the Court discussed above, however, it is a requester’s burden to “point to specific information in the 70 It is unclear from the plaintiff’s argument whether it contends that the attorney-client privilege does not apply because the advice in question was not confidential, or whether the plaintiff relies solely on a theory of official acknowledgement, see Fitzgibbon, 911 F | National_Security_Counselors_2013-08-15.txt |
8489983f-4f92-4d02-881b-79fdeef5f2f8 | .2d at 765 (“[W]hen information has been ‘officially acknowledged,’ its disclosure may be compelled even over an agency’s otherwise valid exemption claim.”). The Court will proceed to address both potential bases for denying summary judgment. 139 public domain” that is “identical to that being withheld.” Davis, 968 F.2d at 1280 | National_Security_Counselors_2013-08-15.txt |
a3f9a088-7922-47b0-8906-1cd5bcbd97ed | . To secure summary judgment, an agency is not required to demonstrate that it performed an exhaustive search of publicly available records. See id. at 1279. Hence, the fact that certain withheld information exists in the public domain does not suggest bad faith on the part of an agency because an agency is not obligated to “prov[e] the negative—that information has not been revealed.” See id | National_Security_Counselors_2013-08-15.txt |
faaeb0fc-0dfd-4565-a6c5-69188805057b | . For these reasons, the Court concludes that the public availability of certain records withheld by the DOJ is not evidence of bad faith on the part of that agency. The Court will proceed to discuss whether the plaintiff has met its burden to “point to specific information in the public domain” that is “identical to that being withheld.” Id. at 1280 | National_Security_Counselors_2013-08-15.txt |
49f366a8-dadb-4f5e-b3ed-ca0fb99bfaea | . The plaintiff contends that five of the withheld OLC opinions have been officially disclosed in the public domain. See Pl.’s First 445 Opp’n at 31–32. The plaintiff is only able to produce evidence that one of these sixteen opinions (Document 11, see Colborn Decl. Ex. G, No. 11-445, ECF No. 29-11) has been actually and officially disclosed in the public domain | National_Security_Counselors_2013-08-15.txt |
24b2b5de-8879-4090-a56d-c9d50676691e | . That opinion is apparently contained in the National Archives in an unredacted form, see id. at 32, and the defendants “assume NSC is no longer challenging the withholding of” this opinion, Defs.’ First 445 Reply at 21 n.6 | National_Security_Counselors_2013-08-15.txt |
1a03ffb5-b9cc-4c53-9e48-b119a5ffccbe | .71 The rest of the publicly available information cited by the plaintiff is comprised of references to or summaries of four other OLC opinions that were withheld by the DOJ in this case. See Pl.’s First 445 Opp’n at 32–33 | National_Security_Counselors_2013-08-15.txt |
4f8e36b0-342f-45be-a34f-5fc1670b8adf | . As to the second of the OLC opinions (Document 3), the plaintiff cites meeting minutes from the Interagency Classification Review Committee (“ICRC”), which “record[] in great detail the summary [of an OLC opinion] . . . as well as a 71 The plaintiff does not clarify whether it continues to challenge the withholding of Document 3 | National_Security_Counselors_2013-08-15.txt |
9c1855fd-edd1-4b62-ae7c-c5e8b3c42bb2 | . Since the plaintiff does not address this issue in its sur-reply brief in No. 11-445, and because the plaintiff does not ask the Court to direct the DOJ to produce Document 3 to the plaintiff, the plaintiff does not appear to continue to challenge the DOJ’s decision to withhold Document 3. 140 recorded decision to implement the opinion.” Id. at 32 | National_Security_Counselors_2013-08-15.txt |
156654e2-1073-4c0d-ab4b-006c5167ff45 | . These meeting minutes, which the plaintiff attaches as an exhibit to its summary judgment opposition, do contain a summary of a summary of Document 3, provided by then-OLC attorney Antonin Scalia at an ICRC meeting. See Pl.’s First 445 Opp’n Ex. K at 3–4, No. 11-445, ECF No. 33-11 | National_Security_Counselors_2013-08-15.txt |
25c9c8f6-7ae8-4e6e-b8ac-a7034612efa4 | . These meeting minutes appear to convey the thrust of the legal advice provided by the OLC in Document 3, stating, for example, that “with respect to the second question, it was the [DOJ’s] opinion that the CIA’s response to Mr. Slocombe was inadequate.” Id. at 4. The D.C | National_Security_Counselors_2013-08-15.txt |
697be0c9-30e2-4b04-adfe-1ac64a49aa76 | . Circuit’s decisions on official acknowledgement under the FOIA require a requester to establish that “the information requested [is] as specific as the information previously released” and that “the information . . . match[es] the information previously disclosed.” See, e.g., Wolf, 473 F.3d at 378 (quoting Fitzgibbon, 911 F.2d at 765) | National_Security_Counselors_2013-08-15.txt |
10681c5a-aeef-46d4-bd48-135604ab2d8b | . Additionally, “voluntary disclosure of privileged material subject to the attorney-client privilege to unnecessary third parties in the attorney-client privilege context ‘waives the privilege, not only as to the specific communication disclosed but often as to all other communications relating to the same subject matter.’” In re Sealed Case, 121 F.3d 729, 741 (D.C. Cir. 1997) | National_Security_Counselors_2013-08-15.txt |
7b3780d1-3c68-4829-8601-212c46f52a3b | . With regard to Document 3, although the information disclosed in the public record about that opinion appears to reveal at least some of the legal opinion’s conclusions, the plaintiff is unable to establish that “the information requested [is] as specific as the information previously released.” See Wolf, 473 F.3d at 378 | National_Security_Counselors_2013-08-15.txt |
e80492f3-4525-4359-9567-a08bcdce975d | . This is because “the information requested” was the OLC opinion itself, and not just a summary of certain conclusions contained in the opinion. Nevertheless, the public disclosure of at least a portion of the contents of Document 3 waives the attorney-client privilege as to that portion of the opinion, see In re Sealed Case, 121 F | National_Security_Counselors_2013-08-15.txt |
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