Judicial Watch, Inc. v. Department of Justice

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 22, 2004 Decided May 7, 2004

No. 03-5093

JUDICIAL WATCH, INC.,
APPELLANT

v.

DEPARTMENT OF JUSTICE,
APPELLEE

Consolidated with
No. 03-5094

Appeals from the United States District Court
for the District of Columbia
(No. 01cv00639)
(No. 01cv00720)

Paul J. Orfanedes argued the cause and filed the briefs for
appellant.

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

Michael E. Tankersley was on the brief for amicus curiae
George Lardner in support of appellant.
Mark B. Stern, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Peter D. Keisler, Assistant Attorney General, Roscoe C. How-
ard, Jr., U.S. Attorney, Gregory G. Katsas, Deputy Assistant
Attorney General, and Michael S. Raab, Attorney.
Before: HENDERSON, RANDOLPH and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.

Dissenting opinion filed by Circuit Judge RANDOLPH.
ROGERS, Circuit Judge: In In re Sealed Case, 121 F.3d 729
(D.C. Cir. 1997), the court, in considering a grand jury
subpoena for White House documents relating to an investi-
gation of the former Secretary of Agriculture, reviewed the
history of the executive privilege doctrine, and the nature and
principles underlying two privileges falling within that doc-
trine. We apply that analysis in deciding whether, under
Exemption 5 of the Freedom of Information Act (‘‘FOIA’’), 5
U.S.C. § 552(b)(5), the presidential communications privilege
extends into the Justice Department to internal pardon docu-
ments in the Office of the Pardon Attorney and the Office of
the Deputy Attorney General that were not ‘‘solicited and
received,’’ id. at 752, by the President or the Office of the
President.1 In refusing to release certain documents in re-
1 The Office of the President, as relevant to the issues in this
appeal, is distinct from the Executive Office of the President and is
a smaller unit comprised of such immediate advisers as the Chief of
Staff and the White House Counsel. See CONGRESSIONAL QUARTER-
LY, FEDERAL STAFF DIRECTORY vii (44th ed. 2004); NAT’L ARCHIVES &
RECORDS ADMIN., OFFICE OF THE FED. REGISTER, THE UNITED STATES
GOV’T MANUAL 88–89 (2003). 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. See Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980)
(quoting H.R. Conf. Rep. No. 93–1380, p. 15 (1974)). In referring to
the President’s immediate or key advisers in the Office of the
 3

sponse to Judicial Watch’s FOIA requests, the Deputy Attor-
ney General, to whom the Attorney General has delegated his
pardon duties, invoked the deliberative process privilege.
However, in moving for summary judgment, the Department
also relied on the presidential communications privilege. On
appeal, Judicial Watch contends that the district court erred
in extending the presidential communications privilege to
these internal Department documents. We agree, and ac-
cordingly we reverse, in part, the grant of summary judgment
to the Department and remand the case for the district court
to determine whether the Department’s internal documents
not ‘‘solicited and received’’ by the President or the Office of
the President are protected from disclosure under the deli-
berative process privilege. We affirm the grant of summary
judgment to the Department on the documents withheld
under FOIA Exemption 6, and on Judicial Watch’s request
for a blanket waiver of FOIA processing fees.

I.
In January and February 2001, Judicial Watch filed two
FOIA requests for documents from the Justice Department.
One request was to the Office of the Pardon Attorney, and
the other was to the Office of the Deputy Attorney General.
In each FOIA request, Judicial Watch sought release of
‘‘[a]ny and/or all [p]ardon [g]rants’’ by former President
Clinton in January 2001, and ‘‘[a]ny and/or all pardon applica-
tions considered’’ by former President Clinton.2 Judicial

President, we embrace the definitional analysis set forth in In re
Sealed Case, 121 F.3d at 749–50, 752.
2 Specifically, Judicial Watch requested, ‘‘all correspondence,
memoranda, documents, reports, records, statements, audits, lists of
names, applications, diskettes, letters, expense logs and receipts,
calendar or diary logs, facsimile logs, telephone records, call sheets,
tape recordings, video recordings, notes, examinations, opinions,
folders, files, books, manuals, pamphlets, forms, drawings, charts,
photographs, electronic mail, and other documents and things, that
refer or relate to the following in any way’’ to pardon grants and
applications considered by former President Clinton.
 4

Watch’s request for expedited processing under 28 C.F.R.
§ 16.5(d)(1)(iv), was denied, and the Department began re-
leasing documents in February 2001, including some without
prepayment of the FOIA processing fee. See 28 C.F.R.
§ 16.11(i)(2). Although it released thousands of pages of
documents, the Department withheld 4,341 pages pursuant to
FOIA Exemption 5, see 5 U.S.C. § 552(b)(5), and, to the
extent these pages contained personal information about liv-
ing individuals, pursuant to FOIA Exemption 6. Id.
§ 552(b)(6). The Department separately withheld another
524 pages under Exemption 6.
The withheld documents are described by the Department
in a Vaughn Index3, which organizes the records into 34
categories and specifies the particular privileges invoked for
each document, with the presidential communications privi-
lege and deliberative process privileges invoked either in full
or in part. The 4,341 documents withheld under both the
presidential communications and deliberative process privi-
leges, either in full or in part, can be grouped into several
broad categories. For instance, a number of withheld docu-
ments consist of letters and reports from the Deputy Attor-
ney General to the President, advising the President on
individual pardon petitions. See Vaughn Index 5, 19, 32. A
second group of withheld documents consist of communica-
tions between the Department and the White House Coun-
sel’s Office concerning pending pardon applications, and
communications between the White House Counsel and the
President discussing the Department’s recommendations.
See id. 3, 16, 18, 26. A third broad category of documents
are proposed recommendations for the Deputy Attorney
General’s consideration, which were authored by the Deputy
Attorney General’s staff or the Pardon Attorney. See id. 1,
10, 11, 13, 14, 27, 28. A fourth category consists of internal
communications and working documents among and between
the Deputy’s Office and the Pardon Attorney, such as memo-
randa from the Deputy’s staff to the Pardon Attorney in-
3 See Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. Cir. 1973).
The Vaughn index is appended to this opinion.
 5

quiring about specific pardon applications and requesting
that certain pardon recommendations be modified or resub-
mitted to the Deputy. See id. 2, 4, 7, 20, 21, 22, 25, 29, 30.
A fifth category consists of communications with and docu-
ments received from other agencies and departments in the
course of preparing the Deputy’s pardon recommendations
for the President, such as FBI memoranda on background
investigations. See id. 17, 23, 33. Other documents are
either miscellaneous lists or drafts or are difficult to categor-
ize because they appear to be internal departmental memo-
randa but actually incorporate specific recommendations the
Deputy had submitted for the President. See id. 6, 8, 9, 12,
15, 19, 24, 31. With the exception of category 34 — involv-
ing 524 documents, which the Department withheld under
Exemption 6, consisting of pardon petitions and letters to or
from pardon applicants and their counsel and supporters —
the Department posits that all of these documents fall under
the purview of the presidential communications privilege.
In March and April 2001, Judicial Watch sued the Depart-
ment to enforce the FOIA requests and to challenge the
denial of a blanket waiver of FOIA processing fees. The
district court consolidated the cases, and the Department
moved for summary judgment. The district court agreed
with the Department that all 4,341 pages were properly
withheld under the presidential communications privilege pur-
suant to Exemption 5. Rejecting Judicial Watch’s position
that the privilege does not apply to documents not involving
White House staff, the district court concluded that because
the materials had been produced for the ‘‘sole’’ function of
advising the President on a ‘‘quintessential and nondelegable
Presidential power,’’ the extension of the presidential commu-
nications privilege to internal Justice Department documents
was justified. The district court also agreed that the Depart-
ment had properly withheld 524 pages of documents, consist-
ing primarily of individual petitions for pardons, under Ex-
emption 6. Upon reconsideration, the court also granted the
Department’s motion for summary judgment on the fee waiv-
er request, finding that Judicial Watch had failed to show that
 6

the FOIA requests were likely to contribute significantly to
the public interest.
On appeal, Judicial Watch challenges the district court’s
rulings under Exemptions 5 and 6 and the denial of the
blanket waiver of FOIA fees. Our review of the grant of
summary judgment is de novo. See Assassination Archives
& Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57
(D.C. Cir. 2003); Johnson v. Executive Office for U.S. Attor-
neys, 310 F.3d 771, 774 (D.C. Cir. 2002); Nation Magazine v.
United States Customs Serv., 71 F.3d 885, 889 (D.C. Cir.
1995). We address Exemption 5 in Part II, Exemption 6 in
Part III, and the fee waiver in Part IV.

II.
This FOIA case calls upon the court to strike a balance
between the twin values of transparency and accountability of
the executive branch on the one hand, and on the other hand,
protection of the confidentiality of Presidential decision-
making and the President’s ability to obtain candid, informed
advice. In striking this balance, the court must determine
the contours of the presidential communications privilege with
respect to the President’s pardon power under Article II,
Section 2, of the Constitution in light of the organization of
the executive branch with regard to pardon applications,
investigations, and recommendations. One view, advocated
by the Department, is that protection of the institution of the
Presidency requires that the presidential communications
privilege apply to all documents authored by any executive
branch agency employee that are generated in the course of
preparing pardon recommendations for the President. The
district court adopted this functional approach, finding that
the presidential communications privilege applied to the re-
quested documents because the Pardon Attorney’s ‘‘sole’’
responsibility was to advise the President on pardon applica-
tions. Under this approach, the Pardon Attorney is, in effect,
a White House adviser, rendering the presidential communi-
cations privilege applicable to all pardon-related documents
 7

notwithstanding the location and staff function of the Pardon
Attorney in the Justice Department.
Another view, espoused by Judicial Watch, is that, in
harmony with the FOIA’s purpose, the principles underlying
the presidential communications privilege limit its reach to
documents and other communications ‘‘solicited and received’’
by the Office of the President, and thus do not extend to
agency documents that are not submitted for Presidential
consideration. Under this view, which we endorse, internal
agency documents that are not ‘‘solicited and received’’ by the
President or his Office are instead protected against disclo-
sure, if at all, by the deliberative process privilege. We begin
our analysis with the FOIA statute and then turn to the
presidential communications privilege and the organization of
the pardon process in the executive branch.
The FOIA directs that ‘‘each agency, upon any request for
records TTT, shall make the records promptly available to any
person’’ for ‘‘public inspection and copying,’’ unless the rec-
ords fall within one of the exclusive statutory exemptions.
See 5 U.S.C. §§ 552(a)(2) & (a)(3)(A). There is, however, 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. See supra note 1. The FOIA amended the public
disclosure section of the Administrative Procedure Act, 5
U.S.C. § 1002, which had been viewed, for a variety of
reasons, as ‘‘falling short’’ of the disclosure goals of the
statute. EPA v. Mink, 410 U.S. 73, 79 (1973). The Supreme
Court has long recognized that Congress’ intent in enacting
FOIA was to implement ‘‘a general philosophy of full agency
disclosure.’’ United States Dep’t of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 754
(1989)(quoting Dep’t of the Air Force v. Rose, 425 U.S. 352,
360–61 (1976)). The Supreme Court has explained that,
Without question, the Act is broadly conceived. It seeks
to permit access to official information long shielded
unnecessarily from public view and attempts to create a
 8

judicially enforceable public right to secure such informa-
tion from possibly unwilling official hands.
Mink, 410 U.S. at 80. In weighing opposing interests, Con-
gress has instructed that ‘‘[s]uccess lies in providing a worka-
ble formula that encompasses, balances, and protects all
interests, yet places emphasis on the fullest responsible dis-
closure.’’ S. Rep. No. 813, p. 3, quoted in Mink, 410 U.S. at
80. Accordingly, FOIA’s exemptions are to be narrowly
construed. See United States Dep’t of Justice v. Tax Ana-
lysts, 492 U.S. 136, 151 (1989); Rose, 425 U.S. at 361. See
also 5 U.S.C. § 552(d); Bristol-Myers Co. v. FTC, 424 F.2d
935, 938 (D.C. Cir. 1970), cert. denied, 400 U.S. 824 (1970).
FOIA Exemption 5 allows the government to withhold
‘‘inter-agency or intra-agency memorandums or letters which
would not be available by law to a party TTT in litigation with
the agency.’’ 5 U.S.C. § 552(b)(5). This language has been
interpreted as protecting against disclosure those documents
normally privileged in the civil discovery context. See Mink,
410 U.S. at 91. This includes documents protected under the
executive privilege doctrine. See NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 149 n.16 & 150 (1975). As described in In
re Sealed Case, 121 F.3d at 737, the deliberative process
privilege under Exemption 5 protects ‘‘confidential intra-
agency advisory opinions’’ and ‘‘materials reflecting delibera-
tive or policy-making processes.’’ Mink, 410 U.S. at 86, 89
(citations omitted). It rests on the policy of protecting the
‘‘decision making processes of government agencies,’’ Sears
Roebuck, 421 U.S. at 150 (citations omitted), with the ‘‘ulti-
mate purpose [being] to prevent injury to the quality of
agency decisions.’’ Id. at 151. Materials that are ‘‘predeci-
sional’’ and ‘‘deliberative’’ are protected, while those that
‘‘simply state or explain a decision the government has al-
ready made or protect material that is purely factual’’ are not.
In re Sealed Case, 121 F.3d at 737. The deliberative process
privilege, however, is qualified and can be overcome by a
sufficient showing of need. See id.
Exemption 5 also has been construed to incorporate the
presidential communications privilege. See Sears Roebuck,
 9

421 U.S. at 149 n.16 & 150. In United States v. Nixon, 418
U.S. 683, 708 (1974) (‘‘Nixon I’’), which involved a grand jury
subpoena for tape recordings of President Nixon’s conversa-
tions in the Oval Office, the Supreme Court instructed that
there is ‘‘a presumptive privilege for Presidential communica-
tions,’’ which is ‘‘fundamental to the operation of Government
and inextricably rooted in the separation of powers under the
Constitution.’’ Later, in Nixon v. Adm’r of Gen. Servs., 433
U.S. 425, 449 (1977) (‘‘Nixon II’’), in addressing the Presi-
dent’s challenge to a statute providing for screening by
government archivists of his papers and recorded conversa-
tions, the Supreme Court emphasized Nixon I’s holding that
‘‘the privilege is limited to communications ‘in performance of
(a President’s) responsibilities,’ ‘of his office,’ and made ‘in the
process of shaping policies and making decisions.’ ’’ (citations
omitted). As analyzed by this court in In re Sealed Case, 121
F.3d at 744, ‘‘[t]he President can invoke the privilege when
asked to produce documents or other materials that reflect
presidential decisionmaking and deliberations and that the
President believes should remain confidential.’’ Unlike the
deliberative process privilege, which is a general privilege
that applies to all executive branch officials, the presidential
communications privilege is specific to the President and
‘‘applies to documents in their entirety, and covers final and
post-decisional materials as well as pre-deliberative ones.’’
Id. at 745. The presidential communications privilege thus is
a broader privilege that provides greater protection against
disclosure, although it too can be overcome by a sufficient
showing of need. See id. at 746.
Although Judicial Watch contends that the presidential
communications privilege was not properly invoked, see In re
Sealed Case, 121 F.3d at 744–45 n.16; Center on Corp.
Responsibility, Inc. v. Shultz, 368 F. Supp. 863, 872–73
(D.D.C. 1973); United States v. Burr, 25 F. Cas. 187, 192
(C.C.Va. 1807)(No. 14,694), the court need not address the
issue because Judicial Watch has waived this challenge by
failing to raise it in the district court. See Singleton v. Wulff,
428 U.S. 106, 120 (1976); Amax Land Co. v. Quarterman, 181
F.3d 1356, 1369 (D.C. Cir. 1999). See also Soucie v. David,
 10

448 F.2d 1067, 1071 (D.C. Cir. 1971). Unlike in In re Sealed
Case, 121 F.3d at 744–45 n.16, where the affidavit of the
White House Counsel stated that he was specifically author-
ized by the President to invoke the presidential communica-
tions privilege, the White House Counsel’s declaration here
includes no such statement and there is no other indication
that the President has invoked the privilege. However, the
issue of whether a President must personally invoke the
privilege remains an open question, see In re Sealed Case, 121
F.3d at 744–45 n.16, and the court need not decide it now. Cf.
United States v. Reynolds, 345 U.S. 1, 7–8 (1953).
When the Supreme Court first acknowledged a separate
privilege for presidential communications in Nixon I, 418 U.S.
at 705, it was in the context of President Nixon’s invocation of
the privilege to protect his personal conversations with his
chief White House advisers in the Oval Office. Although the
Court in Nixon I and II outlined the nature of the privilege in
terms of its ‘‘constitutional underpinnings,’’ see Nixon I, 418
U.S. at 705–06, twenty years passed before, in In re Sealed
Case, a court attempted to define the scope of the privilege
more precisely. In In re Sealed Case, 121 F.3d at 746–47, the
court was called upon to extend the privilege beyond commu-
nications directly involving and documents actually viewed by
the President, to the communications and documents of the
President’s immediate White House advisers and their staffs.
In the instant case, the Department seeks a further extension
of the presidential communications privilege to officials within
the Justice Department whose sole function, according to the
Department, is to advise and assist the President in the
performance of his non-delegable pardoning duty. We de-
cline to sanction such an extension of the presidential commu-
nications privilege to all agency documents prepared in the
course of developing the Deputy Attorney General’s pardon
recommendations for the President. Instead, consistent with
the teachings of Nixon I and II and In re Sealed Case, we
hold that the presidential communications privilege applies
only to those pardon documents ‘‘solicited and received’’ by
the President or his immediate White House advisers who
have ‘‘broad and significant responsibility for investigating
 11

and formulating the advice to be given the President.’’ Id. at
752.
This limitation, conveniently summarized by In re Sealed
Case’s phrase ‘‘solicited and received,’’ is necessitated by the
principles underlying the presidential communications privi-
lege, and a recognition of the dangers of expanding it too far.
At core, the presidential communications privilege is rooted in
the President’s ‘‘need for confidentiality in the communica-
tions of his office,’’ Nixon I, 418 U.S. at 712–13, in order to
effectively and faithfully carry out his Article II duties and
‘‘to protect ‘the effectiveness of the executive decision-making
process.’ ’’ In re Sealed Case, 121 F.3d at 742 (quoting Nixon
v. Sirica, 487 F.2d 700, 717 (D.C. Cir. 1973)). The privilege
extends to the President’s immediate advisers because of the
need to protect ‘‘candid, objective, and even blunt or harsh
opinions,’’ for, as the Supreme Court has recognized, ‘‘[a]
President and those who assist him must be free 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.’’ Nixon I, 418 U.S. at 708. Howev-
er, in In re Sealed Case, the court recognized that, in
determining whether ‘‘restricting the presidential communica-
tions privilege to communications that directly involve the
President will ‘impede the President’s ability to perform his
constitutional duty,’ ’’ 121 F.3d at 751 (quoting Morrison v.
Olson, 487 U.S. 654, 691 (1988)), there is, in effect, a hierar-
chy of presidential advisers such that the demands of the
privilege become more attenuated the further away the advis-
ers are from the President operationally. See id. at 752.
Thus, as we demonstrate below, because pardon documents
obtained from other agencies by Justice Department staff
undergo various stages of intermediate review before pardon
recommendations are submitted for consideration by the
President and his immediate White House advisers, with
some documents never making their way to the Office of the
President, the same confidentiality and candor concerns call-
ing for application of the presidential communications privi-
lege in Nixon I and II and In re Sealed Case do not apply as
forcefully here.
 12

Although In re Sealed Case was not a FOIA case, it too
involved a non-delegable duty of the President under Article
II, Section 2 of the Constitution: the appointment and remov-
al power for heads of Executive Departments and members
of his Cabinet. The White House Counsel had conducted an
investigation of alleged conflicts of interest of the Secretary
of Agriculture and, on the basis of that investigation, had
released a report to the public. A grand jury issued a
subpoena duces tecum seeking all documents on the former
Secretary possessed by the White House and any other
documents ‘‘relating in any way to’’ the White House Coun-
sel’s report. Id. at 734–35. When the White House withheld
many of the documents under the deliberative process and
presidential communications privileges, the Office of Indepen-
dent Counsel moved to compel production. The district
court, upon conducting in camera review of the documents,
ruled that the White House had properly invoked the presi-
dential communications and deliberative process privileges.
Id. at 735–36. On appeal, this court held that although all the
documents sought were protected by the presidential commu-
nications privilege, the Independent Counsel had demonstrat-
ed a sufficient showing of need to obtain some of the informa-
tion in the documents, and remanded the case to the district
court to determine what information should be released. Id.
at 757.
Consistent with the principles underlying the presidential
communications privilege, the court in In re Sealed Case
espoused a ‘‘limited extension’’ of the privilege ‘‘down the
chain of command’’ beyond the President to his immediate
White House advisers only, holding that ‘‘communications
made by [such] presidential advisers in the course of prepar-
ing advice for the President come under the presidential
communications privilege, even when these communications
are not made directly to the President.’’ Id. at 749–50, 752.
Emphasizing ‘‘the need for confidentiality to ensure that
presidential decisionmaking is of the highest caliber, informed
by honest advice and full knowledge,’’ id. at 750, the court
also held that ‘‘the privilege must apply both to communica-
tions which these advisers solicited and received from others
 13

as well as those they authored themselves.’’ Id. at 752
(emphasis added). However, the court emphasized the limit-
ed nature of its holding, cautioning against the dangers of
‘‘expanding to a large swath of the executive branch a privi-
lege that is bottomed on a recognition of the unique role of
the President.’’ Id. The court instructed that ‘‘[n]ot every
person who plays a role in the development of presidential
advice, no matter how remote and removed from the Presi-
dent, can qualify for the privilege. In particular, the privilege
should not extend to staff outside the White House in execu-
tive branch agencies.’’ Id.
While the Department attempts to discount the court’s
instruction as mere dictum, it is unavoidably relevant for the
purposes of defining the contours of the presidential commu-
nications privilege. In undertaking the task of conducting a
more comprehensive analysis of the presidential communica-
tions privilege than had been done by the Supreme Court in
Nixon I and II or any other court since then, the In re Sealed
Case court’s statement limiting the scope of the privilege to
key White House advisers in the Office of the President and
their staff cannot easily be divorced from the issues and
concerns underlying its holding. Those issues and concerns
are equally applicable here. The court in In re Sealed Case
recognized the need to ensure that the President would
receive full and frank advice with regard to his non-delegable
appointment and removal power, but was also wary of under-
mining countervailing considerations such as openness in
government. See id. at 749. Hence, the court determined
that while ‘‘communications authored or solicited and re-
ceived’’ by immediate White House advisers in the Office of
the President and their staff could qualify under the privilege,
communications of staff outside the White House in executive
branch agencies that were not solicited and received by such
White House advisers could not. See id. at 752. The court
explained that only communications at the level of the imme-
diate White House adviser’s staff ‘‘are close enough to the
President to be revelatory of his deliberations or to pose a
risk to the candor of his advisers.’’ Id. There is no indica-
tion in Nixon I or II or other Supreme Court jurisprudence
 14

that the boundaries set by In re Sealed Case were inappropri-
ate. Rather, until In re Sealed Case, the privilege had been
tied specifically to direct communications of the President
with his immediate White House advisers. See Nixon I, 418
U.S. at 708; Nixon II, 433 U.S. at 448–49. The reluctance of
the In re Sealed Case court to extend the presidential com-
munications privilege beyond the limits of its requirements
applies no less here.
Consequently, we proceed on the basis that ‘‘the presiden-
tial communications privilege should be construed as narrowly
as is consistent with ensuring that the confidentiality of the
President’s decisionmaking process is adequately protected.’’
In re Sealed Case, 121 F.3d at 752. Further extension of the
privilege to internal Justice Department documents that nev-
er make their way to the Office of the President on the basis
that the documents were created for the sole purpose of
advising the President on a non-delegable duty is unprece-
dented and unwarranted. The only documents at issue in In
re Sealed Case were documents created within the White
House or received by key White House advisers or their staff.
The majority of the withheld documents were authored by
two associate White House Counsel, the White House Coun-
sel and Deputy Counsel, and the President’s Chief of Staff or
Press Secretary. See id. at 757. Because these advisers
were immediate White House staff in the Office of the
President with significant responsibility for advising the Pres-
ident, the court held that these documents were protected by
the privilege. See id. at 758. The few documents authored
by a legal extern in the White House Counsel’s Office and the
few that had no author were also held by the court to be
protected by the privilege because they ‘‘were clearly created
at the request of the two associate White House Counsel with
broad and significant responsibility’’ for the White House
Counsel’s investigation of the Secretary of Agriculture, and
because the documents were received by these advisers. Id.
The Department now would have the court extend the
presidential communications privilege to communications of
persons in the Justice Department who are at least twice
removed from the President, among and between the Offices
 15

of the Pardon Attorney and the Deputy Attorney General, as
well as other agencies, that were never received by immediate
White House advisers in the Office of the President. Un-
doubtedly a bright-line rule mandating application of the
privilege to all departmental or agency communications relat-
ed to the preparation of the Deputy Attorney General’s
pardon recommendations for the President would be easier to
apply than a rule under which pardon communications not
‘‘solicited and received’’ by the Office of the President must
be individually examined under the deliberative process privi-
lege. But such a bright-line rule is inconsistent with the
nature and principles of the presidential communications priv-
ilege, as well as the goal of best serving the public interest.
See In re Sealed Case, 121 F.3d at 751–52. Communications
never received by the President or his Office are unlikely to
‘‘be revelatory of his deliberations.’’ Id. at 752. Nor is there
reason to fear that the Deputy Attorney General’s candor or
the quality of the Deputy’s pardon recommendations would be
sacrificed if the presidential communications privilege did not
apply to internal agency documents. See id. Any pardon
documents, reports, or recommendations that the Deputy
Attorney General submits to the Office of the President, and
any direct communications the Deputy or the Pardon Attor-
ney may have with the White House Counsel or other imme-
diate presidential advisers will remain protected. The In re
Sealed Case court’s concern for providing ‘‘sufficient elbow
room for [presidential] advisers to obtain information from all
knowledgeable sources,’’ id., will also not be undermined. It
is only those documents and recommendations of Department
staff that are not submitted by the Deputy Attorney General
for the President and are not otherwise received by the Office
of the President, that do not fall under the presidential
communications privilege. Although the potential for chilling
the candor of the staffs of the Pardon Attorney or the Deputy
Attorney General is greater than if everything produced in
relation to pardon recommendations were covered under the
privilege, because the deliberations of these staff are not close
enough to the President to be revelatory of his deliberations
and will in any event remain protected pursuant to the
 16

deliberative process privilege, the justification for expanding
the presidential privilege that far disappears. See id.
Moreover, the President’s discretion and autonomy in
granting pardons, see United States v. Klein, 80 U.S. (13
Wall.) 128, 147 (1871), which may be based on the Deputy
Attorney General’s recommendations, the advice of his key
White House advisers, or such other sources as he may seek
out, counsel against further expansion of the privilege. It
would be implausible, however, to conclude that documents
that neither the President nor his key advisers receive from
the Deputy Attorney General are part of the President’s
personal decision-making process such that their exclusion
from the scope of the privilege would impair the quality of his
deliberations. For instance, the court can hardly conclude
that examining documents such as an ‘‘[e]-mail within the
Department of Justice, among officials in [the Office of the
Deputy Attorney General] and [the Office of the Pardon
Attorney] transmitting information on particular pardons, and
requesting information, such as warrants and background
investigations,’’ see Vaughn Index category No. 7, under the
deliberative process privilege rather than the presidential
communications privilege, would jeopardize the President’s
confidentiality and decision-making process. Extending the
presidential communications privilege to cover such internal
Department documents would be both contrary to executive
privilege precedent and considerably undermine the purposes
of FOIA to foster openness and accountability in government.
Indeed, a bright-line rule expanding the privilege could have
the effect of inviting use of the presidential privilege to shield
communications on which the President has no intention of
relying in exercising his pardon duties, for the sole purpose of
raising the burden for those who seek their disclosure. Such
an approach would distort the rationale adopted by the
Supreme Court in Nixon I and II and the principled analysis
of this court in In re Sealed Case.
However, the Department contends that the Pardon Attor-
ney is, in effect, a ‘‘member[ ] of an immediate White House
adviser’s staff who ha[s] broad and significant responsibility
for investigating and formulating the advice to be given the
 17

President.’’ In re Sealed Case, 121 F.3d at 752. Under this
view, because the Pardon Attorney’s sole purpose is to advise
the Deputy Attorney General, and ultimately, the President
on pardon applications, and the Pardon Attorney either au-
thored or compiled the documents sought, the documents are
protected by the presidential communications privilege. But
the Department’s view ignores the separate responsibilities of
the Deputy Attorney General and the Pardon Attorney as
well as the Pardon Attorney’s history of invoking the deliber-
ative process privilege to protect the confidentiality of the
Department’s internal pardon process.
The court has long recognized that the organization of
governmental functions is of significance for the purposes of
FOIA. In Ryan v. Dep’t of Justice, 617 F.2d 781, 789 (D.C.
Cir. 1980), the court observed that,
In many different areas the President has a choice
between using his staff to perform a function and using
an agency to perform it. While not always substantively
significant, these choices are often unavoidably signifi-
cant for FOIA purposes, because the Act defines agen-
cies as subject to disclosure and presidential staff as
exempt.
The court considered the President’s decisions about the
location of advisers as reflective of his understanding of the
access that the public could potentially have to government
documents under FOIA. See id. at 789. Although the issue
in Ryan involved the meaning of ‘‘agency records’’ under
FOIA, namely, whether questionnaire responses of United
States Senators sent to the Attorney General regarding their
procedures for selecting and recommending potential judicial
nominees were ‘‘agency records,’’ the court’s analysis is none-
theless instructive. Just as the power to grant pardons is a
quintessential and non-delegable Presidential duty, so too is
the Article II, Section 2 power to select and appoint federal
judges. There, as here, the President had delegated to the
Attorney General the responsibility of evaluating potential
nominees, receiving recommendations, and recommending
candidates to the President. In performing this duty, the
 18

Attorney General solicited questionnaire responses from Sen-
ators on their procedures for recommending potential nomi-
nees, id. at 784, much as the Deputy Attorney General,
through the Pardon Attorney, solicits responses from agen-
cies on pardon applicants. While an inquiry into whether
documents are ‘‘agency records’’ under FOIA is different
from an inquiry into whether documents come within a FOIA
exemption, each inquiry ultimately involves shielding govern-
ment documents from public scrutiny — in these cases, on the
basis that the documents were produced for the purpose of
advising the President on a nondelegable Presidential duty.
The court in Ryan rejected a functional approach. It
reasoned that although the documents were received for the
purpose of advising the President on a nominating role that
was exclusively his, id. at 786, adopting a functional approach
to ‘‘defin[e] ‘agency records’ by the purpose for which they
exist, would cut back severely on the FOIA’s reach as inter-
preted by courts since its inception.’’ Id. at 788. The court
observed that judicial nominations were ‘‘by no means unique
as an instance where normal agency functions involve some
element of giving advice to the President.’’ Id. at 787. For
instance, the Office of Legal Counsel in the Justice Depart-
ment exists to assist the Attorney General in advising the
President on major legal issues, a large portion of the Secre-
tary of State’s functions is to advise the President in the
conduct of foreign affairs, id. at 787–88, and the Central
Intelligence Agency and the National Security Agency pro-
duce documents for the function of advising the President in
his ‘‘solely presidential role of Commander-in-Chief.’’ Id. at
788. That reasoning is equally applicable here. Extension of
the presidential communications privilege beyond the limits of
In re Sealed Case to all documents prepared or received by
the Pardon Attorney or his Office simply because they are
produced for the sole function of assisting the Deputy Attor-
ney General in presenting pardon recommendations for the
President would have far-reaching implications for the entire
executive branch that would seriously impede the operation
and scope of FOIA.
 19

However, rather than focusing on whether the internal
Department documents are ‘‘agency records,’’ as in Ryan, we
proceed on the basis that the Office of the Pardon Attorney,
as an office within the Justice Department, is an agency
subject to FOIA. See Crooker v. Office of Pardon Attorney,
614 F.2d 825, 827 (2d Cir. 1980). It is the respective roles of
the Deputy Attorney General and the Pardon Attorney in
making pardon recommendations for the President that are
significant for our analysis. The Department’s assertion that
the Pardon Attorney and his staff can be likened to ‘‘immedi-
ate White House adviser’s staff,’’ In re Sealed Case, 121 F.3d
at 752, or as an extended arm of the White House Counsel’s
Office, such that all documents authored or solicited and
received by the Pardon Attorney fall under the protection of
the presidential communications privilege, is untenable in
light of the review and intermediate decision-making by the
Deputy Attorney General. The declarations and attachments
filed by the Department in the district court reveal that the
Attorney General has delegated his advisory duties on par-
dons to the Deputy Attorney General, and within the Depart-
ment, the Pardon Attorney assists the Deputy Attorney
General in performing this duty, as well as ‘‘such other duties
as may be assigned,’’ see 28 C.F.R. § 0.35(b), by the Attorney
General or the Deputy Attorney General.4 Thus, the Pardon
Attorney receives, on behalf of the President, applications for
pardons for federal criminal offenses, and in accordance with
instructions from the Deputy Attorney General’s Office, con-
ducts an investigation, calling upon other agencies such as the
Internal Revenue Service, the Federal Bureau of Investiga-
tion, the U.S. Probation Office and U.S. Attorney in the
District where the applicant was convicted. See 28 C.F.R.
§ 1.6(a). Staff in the Office of the Deputy review the Pardon
Attorney’s proposed recommendations and investigatory re-
port, and upon any necessary further investigation, prepare a
report for the Deputy Attorney General. Ultimately, the
4 Although the current rules refer to the ‘‘Associate Attorney
General,’’ see 28 C.F.R. §§ 0.35(b), 0.36 (2003), the declarations,
which were filed in 2002, refer to the delegation of the Attorney
General’s pardon duties to the Deputy Attorney General.
 20

Deputy Attorney General submits, on behalf of the Attorney
General, his recommendations for the President on the par-
don applications that the Deputy has determined should be
considered by the President. See id. § 1.6(c).
The Pardon Attorney, therefore, does not, as a matter of
his working relationships, directly advise the President on
pardon recommendations or serve as immediate staff to the
White House Counsel or other key White House advisers in
the Office of the President. In practice, the Deputy Attorney
General acts as an intermediate controlling official who exer-
cises independent judgment on which pardon applications and
what recommendations to submit for the President’s consider-
ation. Cf. Ryan, 617 F.2d at 786. These internal working
relationships are part of the ‘‘regular business’’ of the Depart-
ment. See id. at 787. The fact that the Deputy Attorney
General’s recommendations for the President are transmitted
to the Office of the White House Counsel through the Pardon
Attorney does not minimize the significance for FOIA pur-
poses of the Department’s intermediary role in preparing
pardon recommendations for the President. This role con-
trasts with that of the key White House advisers in the Office
of the President who directly advise the President as was
discussed in In re Sealed Case, 121 F.3d at 752. The White
House Counsel, in the Office of the President, who enjoys
close proximity to the President, is one such key adviser; the
Pardon Attorney, in the Justice Department, who is at least
twice removed from the President, is not.
Nor can the Deputy Attorney General or Attorney General
be equated with the close presidential advisers discussed in
In re Sealed Case. Since the creation of the Department in
1870, the Attorney General has not only served as an adviser
to the President, but also as the administrator of the Depart-
ment. See Ryan, 617 F.2d at 787. Recognizing the problem
of ‘‘dual-hat’’ advisers who perform other functions in addition
to advising the President, see Armstrong v. Executive Office
of the President, 90 F.3d 553, 558 (D.C. Cir. 1996), the court
in Ryan noted that the Attorney General, as head of the
Justice Department, could not be treated as a non-agency
exempt from the FOIA when he was engaged in his presiden-
 21

tial advisory functions. Ryan, 617 F.2d at 788. In In re
Sealed Case, the court’s reference to ‘‘ ‘dual hat’ presidential
advisers,’’ was limited to those ‘‘immediate White House
adviser’s staff’’ who ‘‘exercise substantial independent author-
ity or perform other functions in addition to advising the
President,’’ 121 F.3d at 752, and for these individuals, the
presidential communications privilege could apply if the gov-
ernment bore its burden of proving that their communications
occurred in the course of advising the President. See id. But,
the court in Ryan rejected the notion that the Attorney
General should be treated as ‘‘the President’s immediate
personal staff,’’ or as a unit within the Executive Office of the
President ‘‘whose sole function is to advise the President.’’
Id. at 788. Cf. Soucie, 448 F.2d at 1075. Extension of the
presidential communications privilege to the Attorney Gener-
al’s delegatee, the Deputy Attorney General, and his staff, on
down to the Pardon Attorney and his staff, with the attendant
implication for expansion to other Cabinet officers and their
staffs, would, as the court pointed out in In re Sealed Case,
‘‘pose a significant risk of expanding to a large swath of the
executive branch a privilege that is bottomed on a recognition
of the unique role of the President.’’ Id.
Instead, consistent with the Department’s historical posi-
tion and the underlying public interest, its internal documents
that are not ‘‘solicited and received’’ by the President or the
Office of the President should be evaluated under the deliber-
ative process privilege. Heretofore, in complying with FOIA
requests, the Pardon Attorney has withheld documents that
he or she considered privileged under the deliberative process
privilege, not the presidential communications privilege. For
instance, in Binion v. United States Dep’t of Justice, 695 F.2d
1189, 1191 (9th Cir. 1983), when an applicant for a Presiden-
tial pardon sought disclosure under FOIA of all records
dealing with his prior pardon applications, the Pardon Attor-
ney relied only on Exemption 5’s deliberative process privi-
lege, Exemption 7’s privilege for law enforcement records,
and the Privacy Act’s ‘‘general exemption’’ for rap sheets and
other criminal reports, to justify withholding the documents.
See also Crooker, 614 F.2d at 828. Indeed, the declaration of
 22

Deputy Attorney General Larry D. Thompson states that
‘‘the documents withheld in this litigation TTT are properly
subject to the deliberative process privilege,’’ evidencing an
expectation that working documents, produced in the course
of developing the Deputy Attorney General’s recommenda-
tions for the President, would be evaluated only under the
deliberative process privilege, not the presidential communi-
cations privilege. The ultimate goal of protecting the confi-
dentiality of the President’s decision-making and his 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. Inasmuch as disclosure of
factual information may reveal the nature and substance of
the issues before the President, factual information is protect-
ed against disclosure under the deliberative process privilege
‘‘if it is inextricably intertwined with policy-making process-
es.’’ Soucie, 448 F.2d at 1077–78.
Consequently, to define the scope of the presidential com-
munications privilege functionally by focusing on the ‘‘sole’’
responsibility of the Pardon Attorney to advise the President
on his pardon duty, ignores the internal working relationships
of the Pardon Attorney within the Justice Department and
the fact that it is the Deputy Attorney General who makes
the final decision on the pardon recommendations to be
submitted for the President’s consideration. While a func-
tional approach has the virtue of simplicity, it comes at too
high a price: Any document that in any way pertains to
pardons would be covered by the presidential communications
privilege regardless of whether it is submitted with the
Deputy Attorney General’s pardon recommendations for the
President. To hold that all work performed in connection
with a standing request by the President for the Attorney
General’s pardon recommendations falls under the presiden-
tial communications privilege entails fundamental conceptual
difficulties. First, such an interpretation would sweep within
the reach of the presidential privilege much of the functions
of the executive branch, namely, to advise the President in
the performance of his Article II duties. Courts have long
been hesitant to extend the presidential communications priv-
 23

ilege so far, for ours is a democratic form of government
where the public’s right to know how its government is
conducting its business has long been an enduring and cher-
ished value. See In re Sealed Case, 121 F.3d at 749 (quoting
Letter from James Madison to W.T. Barry (Aug. 4, 1822), in
9 WRITINGS OF JAMES MADISON 103 (Gaillard Hunt, ed. 1910)).
See also Mink, 410 U.S. at 105 (Douglas, J., dissenting)
(quoting Henry Steels Commager, The New York Review of
Books, Oct. 5, 1972, p. 7). As we cautioned in In re Sealed
Case, the courts must be ‘‘ever mindful of the dangers [of]
cloaking governmental operations in secrecy.’’ 121 F.3d at
762. Second, extending the presidential communications priv-
ilege to working documents produced in the course of advis-
ing the President on his pardon power would be inconsistent
with the Department’s historical approach of invoking the
deliberative process privilege rather than the presidential
communications privilege to protect its internal documents
and deliberations from public disclosure. The Department
has not argued, much less proffered any evidence, that the
President’s decision-making process on pardons has been
compromised in any manner as a result of the Department’s
prior reliance on the deliberative process privilege.
Our dissenting colleague reaches a different conclusion,
namely, that any and all documents originated for the sole
purpose of advising the President on a ‘‘quintessential and
nondelegable’’ power must be protected by the presidential
communications privilege, irrespective of whether they are
received by the President or any of his close White House
advisers. Dissenting Op. at 1. The dissent points to the In
re Sealed Case court’s statement that the privilege protects
‘‘pre-decisional’’ documents produced in the course of advising
the President, not just those documents that physically enter
the Oval Office. 121 F.3d at 750. See Dissenting Op. at 2.
However, application of this statement to the pardon docu-
ments at issue is problematic for several reasons. The In re
Sealed Case court extended the presidential communications
privilege beyond communications actually seen by the Presi-
dent to the working papers of the President’s immediate
White House advisers in the Office of the President, not
 24

simply because the documents were ‘‘originated for the sole
purpose of advising the President,’’ Dissenting Op. at 1, but
because there was reason to believe, given the decisionmaking
process at issue, that the President’s confidentiality and
access to candid advice might otherwise suffer. That concern
is far more attenuated for working documents of an agency
that were never submitted to the Office of the President.
The dissent’s point seems to be that with regard to nondele-
gable presidential duties, no matter how many steps a com-
munication is removed from the President, if it is protected
only by the deliberative process privilege and not by the
presidential communications privilege, it risks exposing the
‘‘issues before the President,’’ thus compromising his interest
in confidentiality. Dissenting Op. at 7. But this approach
fails to acknowledge both ‘‘the general rule, underscored by
the Supreme Court in Nixon [I], that privileges should be
narrowly construed,’’ In re Sealed Case, 121 F.3d at 749, and
the significance of the hierarchy of presidential advisers
underlying the analysis in In re Sealed Case, 121 F.3d at 752.
Whereas the In re Sealed Case court recognized that the
need for the presidential communications privilege becomes
more attenuated the further away the advisers are from the
President, the dissent fails to acknowledge that the ‘‘organiza-
tional chart’’ affects the extent to which the contents of the
President’s communications can be inferred from pre-
decisional communications.
The reality is that working papers of an immediate White
House adviser in the Office of the President will be far more
revelatory of advice given to the President than internal
Department documents such as emails within the Department
‘‘transmitting information on particular pardons, and request-
ing information, such as warrants and background investiga-
tions.’’ See Vaughn Index category No. 7. The less one can
learn from these twice- and thrice-removed communications
about ‘‘the evolution of advisers’ positions and as to the
different policy options considered along the way,’’ Dissenting
Op. at 2, the less need is there to protect them under the
presidential communications privilege. Although the court
acknowledged in In re Sealed Case that the deliberative
 25

process privilege would be inadequate to protect the Presi-
dent’s confidentiality and the candor of his immediate White
House advisers, 121 F.3d at 750, the court nevertheless
concluded that the presidential communications privilege
should not extend outside of the White House into executive
branch agencies. See id. at 752. For, to the extent those
concerns remain with regard to internal agency communica-
tions, the deliberative process privilege protects confidential
intra- and inter-agency communications consisting of recom-
mendations or opinions that are advisory or deliberative in
nature as well as communications revelatory of the Presi-
dent’s decisionmaking process. See Soucie, 48 F.2d at 1077–
78. See also Mink, 410 U.S. at 86, 89. The dissent’s further
argument that the President could have organized the pardon
process to bring more pre-decisional communications within
the scope of the presidential communications privilege, see
Dissenting Op. at 5; cf. Ass’n. of Am. Physicians & Sur-
geons, Inc. v. Clinton, 997 F.3d 898, 910 (D.C. Cir. 1993), is
irrelevant. The President has not done so, and the organiza-
tional structure of presidential decisionmaking matters in
determining the scope of the presidential communications
privilege because it speaks to the strength of the President’s
confidentiality interests in a particular communication. In
the FOIA context, moreover, the court has long recognized
that the way in which the President organizes and delegates
his official duties is significant. See Ryan, 617 F.2d at 789.
Finally, the dissent’s qualification that the protection of the
presidential communications privilege would attach only if the
advice is on a ‘‘quintessential and nondelegable Presidential
power,’’ Dissenting Op. at 1, draws an arbitrary line, for it
provides no reason to conclude that presidential decisions that
could have been delegated, but were not, are entitled to less
candid or confidential advice than those that could not have
been delegated at all.
Accordingly, we hold that the presidential communications
privilege applies to pardon documents ‘‘solicited and received’’
by the President or his immediate advisers in the Office of
the President, and that the deliberative process privilege
applies to internal agency documents that never make their
 26

way to the Office of the President. This approach heeds the
teachings of Nixon I and II and In re Sealed Case, and
strikes an appropriate balance between the President’s need
for confidentiality and frank advice and the obligations of
open government. As is demonstrated by the Department’s
historical reliance on the deliberative process privilege, the
public interest in protecting the President’s decision-making
process is preserved without extending the presidential com-
munications privilege to internal Department documents that
do not accompany the Deputy Attorney General’s pardon
recommendations for the President and are not otherwise
solicited and received by the Office of the President. Al-
though the Supreme Court has pointed out that the ‘‘expecta-
tion of the confidentiality of executive communications [ ] has
always been limited and subject to erosion over time after an
administration leaves office,’’ Nixon II, 433 U.S. at 451, the
Department does not suggest that a lesser interest in confi-
dentiality is called for because the requested documents are
those of a former Administration.
As noted, the Vaughn index indicates that certain docu-
ments requested by Judicial Watch are not covered by the
presidential communications privilege. Internal documents
between the Office of the Pardon Attorney and the Deputy
Attorney General’s staff or communications within the Depu-
ty Attorney General’s office, that were not sent to the Office
of the President, appear to be more appropriately examined
under the deliberative process privilege. See, e.g., Vaughn
Index category Nos. 1, 2, 4, 10, 11, 13, 14, 19, 20, 21, 22, 25,
27–30. We therefore reverse that part of the grant of
summary judgment extending the presidential communica-
tions privilege to the Department’s internal documents. With
regard to other categories of documents, however, it is diffi-
cult to determine whether or not all or some of the documents
were forwarded to the Office of the President. See, e.g.,
Vaughn index Category 12 (letters among the Office of the
Pardon Attorney, United States Attorney’s Offices, and the
White House). On remand, the district court should review
those documents and determine whether they fall within the
presidential communications privilege. For those documents
 27

not protected by the presidential communications privilege,
the district court should determine whether they were prop-
erly withheld under FOIA Exemption 5’s deliberative process
privilege or under FOIA Exemption 6, giving due consider-
ation to Judicial Watch’s claim that the balance of interests
weighs in favor of releasing the records and to the agency’s
obligation, pursuant to 5 U.S.C. § 552(b), to disclose all
reasonably segregable, nonexempt portions of the documents.

III.
FOIA Exemption 6 allows the government to withhold
documents about individuals in ‘‘personnel and medical and
similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.’’ 5 U.S.C.
§ 552(b)(6). Its primary purpose is to ‘‘protect individuals
from the injury and embarrassment that can result from the
unnecessary disclosure of personal information.’’ United
States Dep’t of State v. Washington Post Co., 456 U.S. 595,
599 (1982). The reference to ‘‘similar files’’ has been inter-
preted broadly to include those ‘‘detailed Government records
on an individual which can be identified as applying to that
individual.’’ Id. at 602 (quoting H.R. Rep. No. 1497, U.S.
Code Cong. & Admin. News 1966, p. 2428). The Supreme
Court has long rejected a ‘‘cramped notion of personal priva-
cy.’’ United States Dep’t of Justice v. Reporters Comm. For
Freedom of the Press, 489 U.S. 749, 763 (1989).
The district court ruled that the release of non-public,
personal information regarding the pardon applicants, their
families, and the crimes they committed, could reasonably be
interpreted as invasions of personal privacy, and that there
was no indication that the disclosure of such information
would contribute significantly to the public’s understanding of
the government’s activities. See Judicial Watch, Inc. v.
United States Dep’t of Justice, 259 F. Supp. 2d 86, 91–92
(D.D.C. 2003). On appeal, Judicial Watch contends that
Exemption 6 is inapplicable, first, because pardon applications
do not concern personal information about prisoners but
rather, the basis upon which their clemency was granted, and
 28

second, because convicted felons are not entitled to the same
privacy rights as other citizens. These contentions are with-
out merit.
In Reporters Comm., the Supreme Court held that the
disclosure of contents of FBI rap sheets constituted an un-
warranted invasion of personal privacy, and thus were exempt
from disclosure. Although the case involved FOIA Exemp-
tion 7(c) rather than Exemption 6, the Court’s reasoning is
instructive. This court has deemed the privacy inquiry of
Exemptions 6 and 7(c) to be essentially the same, see Reed v.
NLRB, 927 F.2d 1249, 1251 (D.C. Cir. 1991); Nat’l Ass’n of
Retired Fed. Employees v. Horner, 879 F.2d 873, 874 D.C.
Cir. 1989), although the Supreme Court has recently con-
strued Exemption 7(c) to be broader. See Nat’l Archives &
Records Admin. v. Favish, 124 S. Ct. 1570, at 1577 (2004). In
Reporters Comm., the Supreme Court described privacy as
an ‘‘individual interest in avoiding disclosure of personal
mattersTTTT [encompassing] the individual’s control of infor-
mation concerning his or her person.’’ 489 U.S. at 762–63.
The Court stated that although much of the content of FBI
rap sheets were a matter of public record, id. at 753, the
limited availability of an actual rap sheet to the public re-
flected a recognition of the privacy interests of criminals, for
there was a distinction, in the court’s view, of ‘‘scattered
disclosure of the bits of information contained in a rap sheet
and revelation of the rap sheet as a whole.’’ Id. at 764.
Thus, the Court not only recognized that criminals have
privacy interests, but also that the availability of the public
information contained in rap sheets, when compiled as one
document, implicated privacy interests.
The documents withheld by the Department under Exemp-
tion 6 consist primarily of individual petitions for pardons,
including non-public personal information about the appli-
cants and their lives before and after their convictions and
personal information about third parties. The pardon appli-
cation calls for a broad range of detailed and highly personal
information about a pardon applicant. In addition to the
usual identifying information such as name, home address,
social security number, citizenship, and physical characteris-
 29

tics, the form asks the applicant to provide a detailed account
of his or her criminal history, substance abuse, occupational
licensing history, and such personal biographical matters as
family history, marital status, and the names, birth dates,
custody, and location of the applicant’s children. Information
must also be provided on residences, employment history,
military record, financial status, and medical history. Appli-
cants generally also include a description of their lives since
conviction, their mental and physical well-being, and emotion-
al pleas for pardons, including letters from friends, family
members, employers, and attorneys.
These documents easily fall under the purview of an indi-
vidual’s ‘‘interest in avoiding disclosure of personal matters,’’
and controlling ‘‘information concerning his or her person.’’
Reporters Comm., 489 U.S. at 762–63. The disclosure of the
documents Judicial Watch requests would implicate far more
serious privacy interests than those at stake in Reporters
Comm. Even though some of this information has previously
been disclosed to the public, under the reasoning of Reporters
Comm., the information is nevertheless entitled to protection.
See id. at 764. Judicial Watch’s reliance on such cases as
United States v. Amen, 831 F.2d 373 (2nd Cir. 1987), for the
proposition that pardon applicants do not have the same
privacy interests as law-abiding citizens, is misplaced. Amen
involved a Fourth Amendment claim where the Second Cir-
cuit held that prison inmates have no reasonable expectation
of privacy — i.e., they are subject to strip searches, random
cell searches, and monitoring of their telephone conversa-
tions. 831 F.2d at 379–80 (citations omitted). It does not
follow that pardon applicants, who are not necessarily still in
custody, do not have a privacy interest in documents contain-
ing sensitive personal information. See also Smith v. Fair-
man, 678 F.2d 52, 54 (7th Cir. 1982). Furthermore, these
types of personal records are unlikely to shed light on the
Department’s conduct in the pardoning process. See Report-
ers’ Comm., 489 U.S. at 773. The operative inquiry in
determining whether disclosure of a document implicating
privacy issues is warranted is the nature of the requested
document itself, not the purpose for which the document is
 30

being requested. See id. at 772. Accordingly, we affirm the
grant of summary judgment for documents withheld pursuant
to Exemption 6, for the district court correctly ruled that
their disclosure would constitute ‘‘a clearly unwarranted inva-
sion of personal privacy,’’ 5 U.S.C. § 552(b)(6), that outweighs
any public interest that Judicial Watch may claim in their
disclosure.

IV.
Under FOIA, the Department is permitted to charge a
reasonable fee for searching, copying, and reviewing its files.
See 5 U.S.C. § 552(a)(4)(A)(ii). Fees are to be reduced or
waived if disclosure of the requested information is ‘‘in the
public interest because it is likely to contribute significantly
to public understanding of the operations or activities of
government and is not primarily in the commercial interest of
the requester.’’ Id. § 552(a)(4)(A)(iii). For a request to be in
the ‘‘public interest,’’ four criteria must be satisfied: (1) the
request must concern the operations or activities of govern-
ment; (2) the disclosure must be ‘‘likely to contribute’’ to an
understanding of government operations or activities; (3)
disclosure must contribute to an understanding of the subject
by the public at large; and (4) disclosure must be likely to
contribute significantly to such public understanding. See 28
C.F.R. § 16.11(k)(2). The Department’s regulations also pro-
vide that, ‘‘The disclosure of information that already is in the
public domain, in either a duplicative or a substantially identi-
cal form, would not be as likely to contribute to such [public]
understanding where nothing new would be added to the
public’s understanding.’’ Id. § 16.11(k)(2)(ii). The burden of
satisfying the public interest standard is on the requestor.
See Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988).
However, proof of the ability to disseminate the released
information to a broad cross-section of the public is not
required. See Carney v. United States Dep’t of Justice, 19
F.3d 807, 814 (2d Cir. 1994).
In response to Judicial Watch’s requests for a blanket
waiver of FOIA processing fees under 5 U.S.C.
 31

§ 552(a)(4)(A)(iii), the Department, in moving for summary
judgment, argued that Judicial Watch was seeking informa-
tion that was already in the public domain and thus not likely
to contribute significantly to the public’s understanding of the
pardon process. After initially denying the Department’s
motion on the ground that Judicial Watch did not have access
to any of the documents and could not determine whether
they were publicly available, the court, upon reconsideration,
granted summary judgment to the Department based upon
its subsequent release of more than 15 percent of the total
pages of the non-exempt documents and a supplemental
Department affidavit averring that additional non-exempt
pardon documents were also in the public domain. On ap-
peal, Judicial Watch contends that it has met all four of the
Department’s criteria for qualifying for a fee waiver, see 28
C.F.R. § 16.11(k)(2)(i-iv), but has been placed in a ‘‘catch–22’’
situation by being asked to identify the documents that would
most likely contribute to the public’s understanding of the
pardon process before it has access to any of the documents.
Despite receipt of thousands of pages of requested docu-
ments, Judicial Watch has made no showing that these docu-
ments were not publicly available. Absent some indication of
why it was not reasonable for the district court to have relied
on the documents already released by the Department and its
supplemental declaration as to the remaining non-exempt
documents, there is no basis to conclude that Judicial Watch
is entitled to a blanket waiver of FOIA processing fees. See
Larson, 843 F.2d at 1483. Under Department regulations,
when the costs of an anticipated duplication is determined to
be in excess of $250, the Department may ‘‘require the
requester to make an advance payment of an amount up to
the amount of the entire anticipated fee’’ prior to producing
any of the documents to the requester. See 28 C.F.R.
§ 16.11(i)(2). Further, if advance payment or a good faith
commitment to pay the anticipated duplication fees is not
provided, the regulations provide that ‘‘the request shall not
be considered received and further work will not be done on
it until the required payment is received.’’ Id. § 16.11(i)(4).
 32

Hence, the Department properly refused to process further
documents without payment of the required fees.
At the same time, Judicial Watch cannot be expected to
show that the unreleased documents are not, in fact, publicly
available. The Department acknowledges as much on appeal.
While continuing to maintain that Judicial Watch is not
entitled to a blanket fee waiver, the Department states in its
brief that some documents sought by Judicial Watch may
qualify for a waiver of fees, and that the Pardon Attorney will
grant fee waivers for those particular documents. See Appel-
lee’s Brief at 43. In light of this acknowledgment, Judicial
Watch has obtained the only relief to which it is entitled
under the regulations. See 5 U.S.C. § 552(a)(4)(A)(iii); 28
C.F.R § 16.11(k)(2)(i-iv).
Accordingly, we reverse, in part, the grant of summary
judgment to the Department based on application of the
presidential communications privilege to the internal docu-
ments of the Department withheld pursuant to Exemption 5,
and otherwise affirm the grant of summary judgment to the
Department on documents withheld pursuant to Exemption 6
and Judicial Watch’s request for a blanket waiver of the
FOIA processing fees.
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 1

RANDOLPH, Circuit Judge, dissenting: In my view, docu-
ments originated for the sole purpose of advising the Presi-
dent on his pardon power are protected by the presidential
communications privilege. The President alone has the
‘‘Power to grant Reprieves and Pardons for Offenses against
the United States,’’ U.S. CONST. art. II, § 2, cl. 1; he cannot
delegate this authority. See THE FEDERALIST NO. 74 (Alexan-
der Hamilton). In exercising his nondelegable power to
pardon, the President has historically requested and received
recommendations from the Office of Pardon Attorney, as
reviewed by the Deputy Attorney General. The Pardon
Attorney produces documents and other information in deter-
mining what advice to give to the President. As in In re
Sealed Case, this information is ‘‘generated in the course of
advising the President in the exercise of TTT a quintessential
and nondelegable Presidential power.’’ 121 F.3d 729, 752
(D.C. Cir. 1997). It follows that the information and docu-
ments, as well as the final recommendation, are privileged.
‘‘A President and those who assist him must be free 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.’’ United States v.
Nixon, 418 U.S. 683, 708 (1974); see Nixon v. Administrator
of Gen. Servs., 433 U.S. 425, 447 n.10 (1977).
The majority agrees that the presidential communications
privilege protects the Pardon Attorney’s final recommenda-
tions sent to the President. But it holds the privilege inappli-
cable to the drafts of those recommendations, or to any other
documents the Pardon Attorney or his supervisor, the Deputy
Attorney General, produce in formulating advice to the Presi-
dent on ‘‘Reprieves and Pardons.’’ U.S. CONST. art. II, § 2, cl.
1. In re Sealed Case gave good reasons for holding the
opposite: ‘‘In the vast majority of cases, few if any of the
documents advisers generate in the course of their own
preparation for rendering advice to the President, other than
documents embodying their final recommendations, will ever
enter the Oval Office. Yet these pre-decisional documents
are usually highly revealing as to the evolution of advisers’
positions and as to the different policy options considered
along the way. If these materials are not protected by the
presidential privilege, the President’s access to candid and
 2

informed advice could well be significantly circumscribed.’’
121 F.3d at 750.
The majority has two grounds, repeated in many different
ways, for departing from this precedent. The first relies on
an organizational chart, the second on a slippery slope.
The Office of Pardon Attorney is in the Department of
Justice rather than at 1600 Pennsylvania Avenue. Hence the
Pardon Attorney is not in ‘‘close proximity’’ to the Oval Office
(maj. op. at 20); he is ‘‘not close enough to the President’’ (id.
at 15); he is ‘‘at least twice removed from the President’’
because his recommendations are reviewed by the Deputy
Attorney General (id. at 14, 20); he is too far away from the
President (id. at 11). I think none of this matters. The
talk – actually dicta – in In re Sealed Case about operational
proximity to the President, 121 F.3d at 752, was directed at
ensuring that documents were generated for the purpose of
advising the President.1 There is no need to worry about
that here. Despite hints to the contrary in the majority
opinion, the uncontested fact in this case is that all of the
Pardon Attorney’s duties and responsibilities are aimed at
formulating advice for the President about pardons. As to
documents involving the Deputy Attorney General, there is
no contention that he was doing anything else than participat-
ing in the Pardon Attorney’s preparation of recommendations
to the President. In these circumstances, ‘‘there is assurance
that even if the President were not a party to the communica-
tions over which the government is asserting presidential
privilege, these communications nonetheless are intimately
1 The majority opinion also relies on Ryan v. Dep’t of Justice, 617
F.2d 781 (D.C. Cir. 1980). Ryan has nothing to do with the issue in
this case. The issue in Ryan was whether a particular entity was
an ‘‘agency’’ within the meaning of the Freedom of Information Act.
Everyone agrees the Office of Pardon Attorney is an agency. The
question here is whether the presidential communications privilege
protects the materials the Office of Pardon Attorney and the
Deputy Attorney General generate for the purpose of advising the
President, a question on which Ryan had nothing to say.
 3

connected to his presidential decisionmaking.’’ In re Sealed
Case, 121 F.3d at 753.2
Nonetheless the majority treats as decisive the dicta in In
re Sealed Case stating that the privilege applies only to
information ‘‘solicited and received’’3 by the President or his
close advisers and their staff, 121 F.3d at 752. It is bad
enough ‘‘to dissect the sentences of the United States Reports
as though they were the United States Code.’’ St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993); see Aka v.
Washington Hosp. Ctr., 156 F.3d 1284, 1291 (D.C. Cir. 1998)
(en banc). It is far worse to treat dicta in one of our opinions
as if it were some sort of statute. Besides, the extraneous
statement in In re Sealed Case itself rested on the following
dicta in Association of American Physicians & Surgeons,
Inc. v. Clinton, 997 F.2d 898, 910 (D.C. Cir. 1993) (AAPS):
‘‘We believe it is the Task Force’s operational proximity to
the President, and not its exact function at any given mo-
2 The full quotation is:
In this case the documents in question were generated in
the course of advising the President in the exercise of his
appointment and removal power, a quintessential and non-
delegable Presidential power. In many instances, presi-
dential powers and responsibilities, for example the duty to
take care that the laws are faithfully executed, can be
exercised or performed without the President’s direct in-
volvement, pursuant to a presidential delegation of power
or statutory framework. But 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 communica-
tions 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 (citation and parenthetical
omitted).
3 There is no dispute that the White House ‘‘solicits’’ advice from
the Pardon Attorney and Deputy Attorney General. Pardon re-
quests are addressed directly to the President, who then submits
the applications to the Pardon Attorney.
 4

ment, that implicates executive powersTTTT The President’s
confidentiality interest is strong regardless of the particular
role the Task Force is playing on any given day.’’ The court
in AAPS was not referring to members of the immediate
White House staff. The ‘‘Task Force’’ was established by the
President to advise him on health care legislation. 997 F.2d
at 901. The majority opinion comes up with nothing to
distinguish such a group, drawn from throughout the Execu-
tive Branch, from the Office of the Pardon Attorney. If the
President set up an executive branch task force each time he
received a pardon application and asked the members to
advise him whether to grant or deny the pardon, there is no
doubt that the work of each such task force would be covered
by the privilege. It can make no difference that the Presi-
dent, instead, relies on a permanent office to perform the
same function.
The majority’s other reason for not holding the privilege
applicable to the Pardon Attorney is of the slippery slope
variety: if the privilege applied this ‘‘would have far-reaching
implications for the entire executive branch that would seri-
ously impede the operation and scope of FOIA’’ (maj. op. at
18); it ‘‘would sweep within the reach of the presidential
privilege much of the functions of the executive branch’’ (id.
at 22); it would result in ‘‘ ‘expanding to a large swath of the
executive branch a privilege that is bottomed on a recognition
of the unique role of the President.’ ’’ Id. at 21, quoting In re
Sealed Case, 121 F.3d at 752.
The slope is slippery, the majority argues, because there is
no non-arbitrary line between this case and other FOIA cases
throughout the Executive Branch. The argument is invalid.
The dividing line is clear, it is unmistakable and it is princi-
pled. It is a line In re Sealed Case itself recognized in
distinguishing advice about ‘‘a quintessential and nondelega-
ble Presidential power,’’ which is subject to the privilege,
from ‘‘information regarding governmental operations that do
not call ultimately for direct decisionmaking by the Presi-
dent,’’ which is not. 121 F.3d at 752. The vast majority of
executive branch documents – those relating either to dele-
gated responsibilities or having purposes other than advising
 5

the President on a nondelegable duty – would therefore not
be swept in if the privilege were applied here.
In response to this dissent, the majority opinion tells us:
‘‘The reality is that working papers of an immediate White
House adviser in the Office of the President will be far more
revelatory of advice given to the President than internal
Department [of Justice] documentsTTTT’’ Maj. op. at 24. I
do not know where the majority gets this idea. The record
does not support it. It is impossible for me to understand
how one can say that the Pardon Attorney’s drafts of his final
recommendation to the President will reveal less about advice
to the President than the internal musings of those in the
President’s immediate vicinity. In short, the Pardon Attor-
ney’s proximity to the President is not the key. It is the
function the Pardon Attorney performs that should have
controlled.
The majority takes comfort in the fact that some of the
Pardon Attorney’s documents it has artificially excluded from
the presidential privilege ‘‘will in any event remain protected
pursuant to the deliberative process privilege,’’ thus making
the ‘‘justification’’ for applying the presidential communica-
tions privilege ‘‘disappear[ ].’’ Maj. op. at 16. This too is an
unwarranted departure from the essential reasoning of In re
Sealed Case. ‘‘The protection offered by the more general
deliberative process privilege will often be inadequate to
ensure that presidential advisers provide knowledgeable and
candid advice, primarily because the deliberative process
privilege does not extend to purely factual material.’’ 121
F.3d at 750. More than that, ‘‘[e]xposure of the factual
portions of presidential advisers’ communications also repre-
sents a substantial threat to the confidentiality of the Presi-
dent’s own deliberations. Knowledge of factual information
gathered by presidential advisers can quickly reveal the
nature and substance of the issues before the PresidentTTTT’’
Id. In response the majority has nothing to say.
I therefore dissent.