UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
JUDICIAL WATCH, INC., )
)
Plaintiff, )
) Case No. 1:12-CV-00931 (EGS)
v. )
)
CONSUMER FINANCIAL )
PROTECTION BUREAU )
)
Defendant. )
________________________________)
MEMORANDUM OPINION
This Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et
seq., case is before the Court on cross motions for summary
judgment. At issue is the Consumer Financial Protection
Bureau’s (“CFPB” or the “Bureau”) response to plaintiff Judicial
Watch, Inc.’s requests for documents relating to the appointment
of Richard Cordray as director of the CFPB. Upon consideration
of the motions, the responses and replies thereto, the entire
record, and for the reasons explained below, defendant’s motion
will be GRANTED IN PART AND DENIED IN PART, and plaintiff’s
cross motion will be GRANTED IN PART AND DENIED IN PART.1
1
Plaintiff requests a hearing on its cross motion. After
reviewing the parties’ pleadings, the Court is satisfied that a
hearing is not necessary to resolve the pending motions.
Accordingly, the request is denied.
I. FACTUAL BACKGROUND
Plaintiff is a non-profit, educational foundation which
regularly requests access to the public records of government
entities and disseminates its findings to the public. Compl. ¶
3. On January 12, 2012, plaintiff submitted a FOIA request to
CFPB, seeking all records of communications between the CFPB and
various entities concerning President Obama’s visit to the CFPB
and his recess appointment of Richard Cordray as director of the
CFPB. Declaration of Brett Kitt (“Kitt Decl.”) Exh. A. The
January 12 request was assigned a FOIA tracking number. Id. ¶
3. On January 25, 2012, plaintiff submitted another FOIA
request to CFPB, seeking all records of communications
concerning Mr. Cordray’s appointment as director of the CFPB and
any documentation reflecting travel and lodging for Mr. Cordray,
his family, and any additional guests. Id. Exh. B. The January
25 request was also assigned a FOIA tracking number. Id. ¶ 4.
On January 27, 2012 and January 30, 2012, CFPB sent letters
to plaintiff formally acknowledging the receipt of the
requests. Id. Exhs. C, D. On March 30, 2012, CFPB issued an
interim response to plaintiff’s January 25 FOIA request,
explaining that the Bureau’s initial search for the requested
documents produced 269 pages, that the Bureau would partially
release 220 pages, and that the Bureau would claim FOIA
Exemptions 5 and 6 for the remaining 49 pages. Id. Exh. F.
2
With this response, CFPB partially released 220 pages of
responsive material. Id. In April 2012, there were additional
communications between the parties regarding the status of
CFPB’s determinations on the pending FOIA requests. Id. Exhs.
G, H. On June 7, 2012, CFPB informed plaintiff by telephone and
by e-mail that the Bureau intended to issue its determination
shortly. Id. Exh. I. On the same day, plaintiff brought this
action alleging that CFPB failed to comply with the relevant
timelines set forth in 5 U.S.C. § 552(a)(6)(A) with respect to
both of its requests. See generally Compl. On June 8, 2012,
CFPB issued its determination as to both of plaintiff’s FOIA
requests. Kidd Decl. Exhs. J, K. With this response, CFPB
partially released an additional 12 pages of responsive material
and withheld an additional 3 pages under FOIA Exemptions 5 and
6. Id. The response letters also informed plaintiff of the
right to administratively appeal the Bureau’s determination.
Id.
Subsequently, while this litigation was pending, the CFFB
conducted another search for records responsive to both FOIA
requests. Kidd Decl. Exh. L. On September 28, 2012 it released
a supplemental production to plaintiff consisting of 17 pages of
responsive records released in full and 8 pages released in
part. Id. Eight hundred eighty pages were withheld in full.
Id. While preparing its Vaughn index, the Bureau identified a
3
small amount of previously withheld material which it later
determined could be partially released. Id. Exh. N. It
released those records to plaintiff. Id.
On November 9, 2012, the Bureau moved for summary judgment,
claiming that plaintiff did not exhaust its administrative
remedies. Def.’s Mot for Summ. J. at 8-15. The Bureau also
argues that its search was adequate and that all of the material
it did not release was properly withheld. See generally Id. On
January 18, 2013, the plaintiff filed a cross motion for summary
judgment. Plaintiff does not challenge the adequacy of the
search, nor does it challenge “the majority of CFPB’s withheld
documents.” Pl.’s Combined Cross Mot. for Summ J./Opp’n to
Def.’s Mot. Summ. J. (“Pl.’s Combined Cross Mot./Opp’n”) at 1.
Plaintiff argues that it exhausted its administrative remedies,
and further argues that the Bureau improperly invoked Exemption
5 for several records. Id. at 2. The motions are now ripe for
the Court’s decision.
II. STANDARD OF REVIEW
A. Summary Judgment in a FOIA Case
Summary judgment is granted when there is no genuine issue
of material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of
Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining
4
whether a genuine issue of fact exists, the court must view all
facts in the light most favorable to the non-moving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). Under FOIA, all underlying facts and inferences are
analyzed in the light most favorable to the FOIA requester; as
such, only after an agency proves that it has fully discharged
its FOIA obligations is summary judgment appropriate. Moore v.
Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v.
U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)).
FOIA cases are typically and appropriately decided on motions
for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd.
of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130
(D.D.C. 2011) (citations omitted).
In reviewing a motion for summary judgment under the FOIA,
the court must conduct a de novo review of the record. See 5
U.S.C. § 552(a)(4)(B) (2012). The court may award summary
judgment solely on the basis of information provided by the
department or agency in affidavits or declarations that describe
“the documents and 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); see also Vaughn v.
5
Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415
U.S. 977 (1974). Agency affidavits or declarations must be
“relatively detailed and non-conclusory.” SafeCard Services v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such 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.” Id. (internal
citation and quotation omitted).
III. DISCUSSION
A. Exhaustion of Administrative Remedies
“Exhaustion of administrative remedies is generally
required before filing suit in federal court so that the agency
has an opportunity to exercise its discretion and expertise on
the matter and to make a factual record to support its
decision.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 61
(D.C. Cir. 1990) (citing McKart v. United States, 395 U.S. 185,
194 (1969)). In the FOIA context, this exhaustion requirement
is triggered when an agency issues a response to a FOIA request
within the relevant statutory timelines – within 20 working days
of receiving the FOIA request, or within 30 working days in
“unusual circumstances.” 5 U.S.C. § 552(a)(6)(A)(i),
(a)(6)(B)(i). To trigger the exhaustion requirement, the agency
must at least:
6
(i) [G]ather and review the documents; (ii) determine and
communicate the scope of the documents it intends to
produce and withhold, and the reasons for withholding any
documents; and (iii) inform the requester that it can
appeal whatever portion of the “determination” is adverse.
Citizens for Responsibility and Ethics in Washington (“CREW”) v.
FEC, 711 F.3d 180, 188 (D.C. Cir. 2013); see also 5 U.S.C.
§ 552(a)(6)(A)(i) (providing that the response must include the
agency’s “determination” on whether to comply with the request
and “the reasons therefor,” and notice of the requester’s right
to appeal any adverse determination). An agency response that
does not include all the necessary components may be deemed
insufficient to trigger the exhaustion requirement. See CREW,
711 F.3d at 188 (stating that more than “an initial statement
that the agency will generally comply with a FOIA request and
will produce non-exempt documents and claim exemptions in the
future” is required); Oglesby, 920 F.2d at 67 (finding that an
agency response that does not provide notice of FOIA requester’s
right to appeal was insufficient to trigger the exhaustion
requirement).
Where the agency fails to issue a determination sufficient
to trigger the exhaustion requirement within the statutory
timelines, the FOIA requester is deemed to have exhausted
administrative remedies. 5 U.S.C. § 552(a)(6)(C)(i). However,
if the agency cures its failure to timely respond before the
requester files suit, the constructive exhaustion provision does
7
not apply and the requester must first administratively appeal
any adverse determination. Oglesby, 920 F.2d at 63-64. Thus,
to determine whether plaintiff must satisfy the exhaustion
requirement in the instant case, it is necessary to determine
whether CFPB has issued its determination within the relevant
time period, or at least before plaintiff filed suit.
Plaintiff, in its Notice of Supplemental Authority, cites
to the D.C. Circuit’s decision in CREW to support its argument
that CFPB’s acknowledgement letters on January 27 and January
30, and CFPB’s interim response letter on March 20 cannot
trigger the administrative exhaustion requirement because the
Bureau failed to notify plaintiff of the right to appeal. Pl.’s
Notice of Supp. Auth. at 2. CFPB does not attempt to refute
plaintiff’s arguments. The Court agrees with plaintiff that
CFPB’s letters issued prior to the initiation of this case are
insufficient to trigger the exhaustion requirement for this
reason. CFPB only provided plaintiff with the notice of the
right to appeal in its June 8 letter. However, because this
letter was issued after plaintiff initiated this lawsuit, it
cannot be used to cure CFPB’s failure to timely respond to FOIA
requests. Thus, the Court finds that CFPB failed to issue its
determination within the statutory time period or before
plaintiff brought this action, and that plaintiff has therefore
constructively exhausted its administrative remedies.
8
B. Exemption 5
Exemption 5 permits an agency to withhold documents such as
“inter-agency or intra-agency memorandums or letters which would
not be available by law to a party . . . in litigation with the
agency.” 5 U.S.C. § 552(b)(5). Judicial Watch challenges
CFPB’s withholding of certain records based on the deliberative
process, attorney-client, attorney work product, and the
presidential communications privileges.
The deliberative process privilege “rests on the obvious
realization that officials will not communicate candidly among
themselves if each remark is a potential item of discovery and
front page news, and its object is to enhance the quality of
agency decisions by protecting open and frank discussion among
those who make them within the government.” DOI v. Klamath
Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001) (citations
omitted). To qualify for withholding under the deliberative
process privilege, the withheld material must be both
predecisional and deliberative. “A document is predecisional if
it was prepared in order to assist an agency decisionmaker in
arriving at his decision, rather than to support a decision
already made. Material is deliberative if it reflects the give-
and-take of the consultative process.” Petroleum Info Corp. v.
Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992)
(citations and quotation marks omitted).
9
The attorney client privilege is meant “to assure that a
client’s confidences to his or her attorney will be protected,
and therefore encourage clients to be as open and honest as
possible with attorneys.” Coastal States Gas Corp. v. Dep’t of
Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). The privilege “is
not limited to communications made in the context of litigation
or even a specific dispute, but extends to all situations in
which an attorney’s counsel is sought on a legal matter.” Id.
The attorney work product privilege, by contrast, is “limited to
documents prepared in contemplation of litigation.” Id. at 864.
While obviously related, the privileges have different goals:
“the attorney client privilege exists to protect confidential
communications,” while the work product privilege “promote[s]
the adversary system by safeguarding the fruits of an attorney's
trial preparations.” United States v. AT&T Co., 642 F.2d 1285,
1299 (D.C. Cir. 1980).
The purpose of the presidential communications privilege is
to “guarantee the candor of presidential advisers and to provide
‘[a] President and those who assist him . . . [with] freedom to
explore alternatives in the process of shaping policies and
making decisions and to do so in a way many would be unwilling
to express except privately.” In re Sealed Case, 121 F.3d 729,
743 (D.C. Cir. 1997) (quoting U.S. v. Nixon, 418 U.S. 683, 708
(1974)). “This privilege extends to communications authored or
10
received in response to a solicitation by members of a
presidential adviser’s staff, since in many instances advisers
must rely on their staff to investigate and issue and formulate
the advice to be given to the President.” ACLU v. DOJ, Case No.
10-123, 2011 U.S. Dist. LEXIS 156267, *30 (D.D.C. Feb. 14, 2011)
(citing In re Sealed Case, 121 F.3d at 752).
1. Deliberative Process Privilege
Judicial Watch challenges the CFPB’s withholding of two
records for which the Bureau cites only the deliberative process
privilege as grounds for the withholding. The Court addresses
each in turn.
a. Briefing Materials
Plaintiff challenges the CFPB’s withholding of two emails
within a chain dated December 6, 2011, which discuss draft
briefing materials for the Deputy Secretary of the Treasury.
Pl.’s Combined Cross Mot./Opp’n at 10-11; Def.’s Vaughn Index at
78-79, Bates 1149-1172. Plaintiff argues that the attachment to
those two emails is labeled “final.dox,” which indicates that
the document is a final document, not a draft, and is therefore
not predecisional. Id. at 11. The CFPB responds that “even
final versions of briefing materials are predecisional and
subject to the deliberative process agency actions or propose
talking points for agency officials to incorporate into their
presentations or question-and-answer-sessions.” Def.’s Opp’n to
11
Cross Motion/Reply in Support of Summ. J. Mot. at 9-10 (“Def.’s
Combined Opp’n/Reply”). The CFPB points out that the full name
of the attachment is “CFPB - TFG QA – fall 2011 – final.dox.”
Id. at 11; Vaughn Index at 78-79. Defendant explains that TFG
stands for then Treasury Secretary Timothy Geithner and QA
stands for question and answer regarding the CFPB. Id. The
document therefore “reflect[s] potential or suggested responses
to a range of questions that Treasury may receive regarding the
Bureau, which may or may not reflect [Treasury’s] ultimate
public statement or position.” Id.
The Court finds the Bureau has carried its burden to prove
the applicability of its claimed exemption. Internal
communications regarding how to respond to media and
Congressional inquiries have repeatedly been held to be
protected under the deliberative process privilege. Judicial
Watch, Inc. v. U.S. Dep’t of the Treasury, 796 F. Supp. 2d 13,
31 (D.D.C. 2011); Judicial Watch, Inc. v. U.S. Dep’t of Homeland
Sec., 736 F. Supp. 2d 202, 208 (D.D.C. 2010); Judicial Watch,
Inc. v. U.S. Dep’t of Commerce, 337 F. Supp. 2d 146, 174 (D.D.C.
2004). The CFPB’s declaration and Vaughn index indicate that
the withheld documents contain talking points and briefing
materials, including recommendations for how to answer questions
about the CFPB, that were prepared by Bureau employees for the
consideration of decision makers at Treasury. Judicial Watch’s
12
selective quoting of name of the attachment listed in the Vaughn
index does not convince the Court otherwise.
b. Email Between White House Official and CFPB
The second document challenged by plaintiff is an email
from Nicole Isaac, a White House staffer, to CFPB employee Lisa
Konwinski. Vaughn Index at 12 (Bates 390-91). It is titled
“HJC February 15th on Cordray,” and the Bureau claims it is
subject to the deliberative process privilege because it
constitutes “a request of the White House for advice regarding a
Congressional hearing and [to] discuss suggestions for
responding to that request.” Id. Judicial Watch argues that it
is not subject to the privilege because under FOIA, the
deliberative process privilege is limited to “inter-agency or
intra-agency” records, 5 U.S.C. § 552(b)(5), and “[g]enerally,
the White House staff is not considered to be an agency for
purposes of FOIA.” Pl.’s Combined Cross Mot./Opp’n at 9-10.
The Bureau concedes that the White House is not an agency for
the purposes of FOIA, but argues that Exemption 5 nevertheless
applies to communications between agencies and the White House
that would otherwise be privileged in civil discovery. Def.’s
Combined Opp’n/Reply at 13-14.
The Court agrees with plaintiff that the Bureau has not
demonstrated this document should be withheld under Exemption 5.
13
The FOIA directs that “each agency, upon any request for records
. . ., shall make the records promptly available to any person”
for “public inspection and copying,” unless the records fall
within one of the exclusive statutory exemptions. See 5 U.S.C.
§§ 552(a)(2) & (a)(3)(A). The protections of FOIA, however, do
not apply to all employees working in the White House.
“Although the Executive Office of the President is an agency
subject to the FOIA, see 5 U.S.C. § 552(f)(1), the Office of the
President is not.” Judicial Watch Inc. v DOJ, 365 F.3d 1108,
1109, n.1 (D.C. Cir. 2004) (citations omitted).
The cases cited by the Bureau do not support its claim that
the deliberative process privilege is available to employees in
the Office of the President in FOIA litigation. The first case
CFPB cites, CREW v. Dep’t of Homeland Security, Case 06-173,
2008 U.S. Dist. LEXIS 57442 (D.D.C. July 22, 2008) concerns
Exemption 5’s presidential communications privilege, not its
deliberative process privilege. Unlike the deliberative process
privilege, “there is [available in FOIA litigation] . . . a
built-in presidential communications privilege for records in
the possession of, or created by, immediate White House
advisers, who are not considered an agency for the purposes of
FOIA.” Judicial Watch, 365 F.2d at 1112. The other case cited
by Defendant, Judicial Watch, Inc. v. Dep’t of Energy, 412 F.3d
125 (D.C. Cir. 2005), is likewise not helpful to the Bureau
14
because it involved a committee within the Executive Office of
the President, which is subject to the FOIA and can therefore
assert the deliberative process privilege. Id., see also In re:
Cheney, 406 F.3d 723, 725 (D.C. Cir. 2005).
Accordingly, because FOIA’s deliberative process privilege
applies to certain employees working in the White House but not
to all, the application of the privilege hinges on what capacity
in the White House Ms. Isaac worked, and for what office. The
Bureau’s declaration and Vaughn index do not provide this
information. Thus the Court cannot conclude that the
deliberative process privilege is properly invoked, and will
therefore deny the Bureau’s motion for summary judgment with
respect to the records in Bates Range 390-391. CFPB must either
disclose the record withheld or, in the alternative, indicate in
sufficient detail why withholding is proper.
2. Attorney Client and Attorney Work Product Privilege:
Communications with Department of Justice
Plaintiff challenges the Bureau’s withholding of four
communications between employees at the Bureau and attorneys at
the Department of Justice.2 See Pl.’s Combined Cross Mot./Opp’n
2
Plaintiff also challenged the withholding of an email exchange
between the CFPB and the Treasury pursuant to the attorney
client and work product privileges. Pl.’s Combined Cross
Mot./Opp’n at 11-12, Vaughn Index at 77-78 (Bates 1135-48). The
Bureau subsequently released the document to the plaintiff.
Def.’s Combined Opp’n/Reply at 12, n.5. Accordingly, it is no
longer a subject of dispute between the parties.
15
at 12. These communications took place on January 12, 19 and
27, 2012. Id.; see also Vaughn Index at 9 (Bates 339-382), 16
(Bates 423), 28 (Bates 578-79), 30 (Bates 658), 31 (Bates 666-
69). Plaintiff argues that the Bureau has not demonstrated the
attorney client privilege applies because it has not
specifically established the lawyer client relationship. Id.
Plaintiff also argues the CFPB has not met its burden to show
the work product doctrine applies because it has not shown the
DOJ lawyers were working “in the capacity of [the CFPB’s]
attorney[s] . . . for any specific litigation.” Id. at 12.
CFPB responds that all of these emails concern anticipated
litigation challenging President Obama’s January 4, 2012 recess
appointment of Director Cordray. Def.’s Mot. at 21-32; Kitt
Decl. ¶ 26-27 (explaining that Department of Justice attorneys
are authorized to represent the Bureau in litigation, and that
the communications occurred “for the purpose of defending the
CFPB in litigation challenging the recess appointment of the
Director.”). The government argues that litigation over
Director Cordray’s recess appointment was reasonably foreseeable
in light of immediate litigation challenging other Presidential
recess appointments made on the same day as Director Cordray’s.
Def.’s Mot. at 2-3, 23-34; Def.’s Combined Opp’n/Reply at 12-13.
In assessing whether the proponent has carried its burden
to show a document is protected as work-product, the relevant
16
inquiry is “whether, in light of the nature of the document and
the factual situation in the particular case, the document can
fairly be said to have been prepared . . . because of the
prospect of litigation.” EEOC v. Lutheran Soc. Servs., 186 F.3d
959, 968 (D.C. Cir. 1999). Although an agency need not have a
specific claim in mind when preparing the documents, there must
exist some articulable claim that is likely to lead to
litigation in order to qualify the documents as attorney work-
product. Coastal States Gas Corp., 617 F.2d at 865; Am.
Immigration Council v. Dep’t of Homeland Security, 905 F. Supp.
2d 206, 221 (D.D.C. 2012) (work product encompasses documents
prepared for litigation that is “foreseeable,” if not
necessarily imminent; “documents that . . . advise the agency of
the types of legal challenges likely to be mounted to a proposed
program, potential defenses available to the agency, and the
likely outcome,” are covered).
In this case, the CFPB’s affidavit and Vaughn index
consistently demonstrate that the documents were prepared in
reasonable anticipation of litigation challenging the
appointment of Director Cordray. It is a matter of public
record that the legality of the appointment was immediately
questioned by some members of Congress, and the recess
appointments of three members of the National Labor Relations
Board made on the same day as Director Cordray’s were the
17
subject of litigation in this court within two weeks thereafter.
Def.’s Mot. at 3. The emails at issue here were written within
one to four weeks following the recess appointment; they involve
the Justice Department attorneys authorized to represent the
Bureau in litigation; and they are described in the Vaughn index
as containing advice and analysis regarding potential legal
challenges to the appointment. Kitt Decl. ¶¶ 25-27, Vaughn
Index at 9 (Bates 339-382), 16 (Bates 423), 28 (Bates 578-79),
30 (Bates 658), 31 (Bates 666-69). Accordingly, the records
fall within the attorney work product privilege. As a result,
the court does not reach the question whether they are also
protected by the attorney-client privilege.3
3. Presidential Communications Privilege
Finally, Judicial Watch challenges the Bureau’s
withholding, under the presidential communications privilege, of
two email exchanges between White House counsel and CFPB
employees.4 Pl.’s Combined Cross Mot./Opp’n at 14-16; see also
3
The CFPB asserts an additional basis for withholding one of the
emails in a chain dated January 12, 2012, identified at Bates
666-669; and the January 19, 2012 email, identified at Bates
423, claiming they are exempt under the deliberative process
privilege. See Vaughn Index at 16, 31-32. Notably, Plaintiff
does not challenge the withholding under the deliberative
process privilege.
4
The Bureau asserts other bases for withholding the documents as
well, see Vaughn index at 4 (Bates 281-82); 49 (Bates 834);
however, because the court finds they are properly withheld
under the presidential communications privilege, the court does
not reach these additional asserted bases for withholding.
18
Vaughn Index at 4 (Bates 281-82); 49 (Bates 384). Plaintiff
claims that the presidential communications privilege “does not
protect the communications between the President or his advisors
and the staff of Federal agencies; it protects confidential
communications between the President’s advisors, or between the
President and his advisors.” Pl.’s Combined Cross Mot./Opp’n at
16. This is not the law of this Circuit. In In re Sealed Case,
121 F.3d 729, the circuit considered the question “How far down
the line does the presidential communications privilege go?”
Id. at 746, and concluded it does not stop at communications
between his immediate advisers.
Given the need to provide sufficient elbow room for
advisers to obtain information from all knowledgeable
sources, the privilege must apply both to communications
which these advisers solicited and received from others as
well as those they authored themselves. The privilege must
also extend to communications authored or received in
response to a solicitation by members of a presidential
adviser's staff, since in many instances advisers must rely
on their staff to investigate an issue and formulate the
advice to be given to the President.
Id. at 752 (emphasis added).5 In this case, it is undisputed
that the withheld communications were either to or from
5
The Circuit goes on to state that the privilege should not
extend to staff in agencies outside the White House who may be
providing advice on a matter which may ultimately become one for
presidential decisionmaking. Id. However, read within context
of the entire passage, it is clear that this refers to agency
communications which do not involve the president’s advisers at
all, but rather are only between and among agency personnel.
Id.; see also Judicial Watch Inc. v. DOJ, 365 F.3d at 1114-15,
19
“important, senior members of the President’s staff,” Pl.’s
Reply at 3, who were involved in advising the President on his
appointment powers generally and Director Cordray’s appointment
specifically. Decl. of Edward N. Siskel ¶¶ 6 a, b. It is
further undisputed that the withheld communications related to
the President’s appointment of Director Cordray, and they
occurred before and immediately after the appointment. Vaughn
Index at 4 (Bates 281-82); 49 (Bates 834). Communications
generated in the course of advising the President in the
exercise of his appointment and removal power are clearly
protected by the presidential communications privilege. The
appointment and removal power are “a quintessential and non-
delegable Presidential power. . . . the President himself must
directly exercise the presidential power of appointment or
removal. As a result, in this case there is assurance that even
if the President were not a party to the communications over
which the government is asserting presidential privilege, these
communications nonetheless are intimately connected to his
presidential decisionmaking.” In re Sealed Case, 121 F.3d at
752-53. The Court therefore concludes that summary judgment
1121 (declining to extend presidential communications privilege
to documents prepared and circulated only within the Justice
Department, and explaining that in these circumstances, “the
ultimate goal of protecting the President’s . . . access to
candid advice is achieved under the deliberative process
privilege for those working documents that never make their way
to the Office of the President.”).
20
should be granted to the Bureau with respect to the withholding
of these documents.
C. Segregability
Under FOIA, “[i]f a document contains exempt information,
the agency must still release any reasonably segregable portion
after deletion of the nondisclosable portions.” Oglesby v. U.S.
Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). Though
not specifically raised by Judicial Watch, the Court has an
“affirmative duty to consider the segregability issue sua
sponte.” Trans-Pacific Policing Agreement v. U.S. Customs
Serv., 177 F.3d 1022, 28 (D.C. Cir. 1999). The reviewing court
may rely on the description of the withheld records set forth in
the Vaughn index and the agency’s declaration that it released
all segregable information. Loving v. U.S. Dep’t of Def., 550
F.3d 32, 41 (D.C. Cir. 2008). In this case, particularly in the
absence of any contrary argument by Judicial Watch, the Court
finds that the Bureau’s Vaughn index and declaration satisfy its
segregabilty burden. Kitt Decl. ¶¶ 17-18; see also Vaughn
index.
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary
judgment is GRANTED IN PART AND DENIED IN PART. The motion is
DENIED with respect to the Defendant’s claim that plaintiff
failed to exhaust, and is further DENIED with respect to the
21
Defendant’s decision to withhold the email from Nicole Isaac to
Lisa Konwinski. Vaughn Index 12 (Bates 390-91). In all other
respects, Defendant’s motion is GRANTED. Plaintiff’s cross
motion for summary judgment is GRANTED with respect to
exhaustion and the Isaac/Konwinski email; in all other respects,
Plaintiff’s motion is DENIED. An appropriate order accompanies
this memorandum opinion.
SIGNED: Emmet G. Sullivan
United States District Judge
September 30, 2013
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