United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. Nye U.S. District Court Judge.
before the Court are cross Motions for Summary Judgment filed
by the parties. Dkts. 8, 12. After holding oral argument, the
Court took the motions under advisement. Upon review, the
Court now issues the following decision DENYING Plaintiff
Advocates for the West's (“Advocates”) Motion
for Summary Judgment (Dkt. 8) and GRANTING Defendant United
States Department of Justice's (“DOJ”) Motion
for Summary Judgment (Dkt. 12).
present suit, Advocates allege that DOJ has violated-and
continues to violate-the Freedom of Information Act
(“FOIA”) by unlawfully withholding 12 legal
memoranda prepared by DOJ's Office of Legal Counsel
(“OLC”) regarding the President of the United
States' authority to alter national monuments under the
Antiquities Act of 1906.
about February 6, 2017, Advocates submitted a FOIA request to
DOJ in hopes of obtaining certain records related to this
topic. This original request was extremely broad. Through
negotiation with DOJ, Advocates agreed to narrow the scope of
its request on two occasions, and ultimately sought only
“responsive records located in OLC's database of
final legal advice” concerning certain national
monuments and the President's authority to enlarge,
shrink, or modify said monuments.
9, 2017, DOJ responded to Advocates by stating that it had
identified 38 responsive records. That same day, DOJ released
26 of the 38 records in full, but informed Advocates that it
would not be releasing the remaining 12 records pursuant to
FOIA “Exemption 5.”
requested more information, or justification, for withholding
the 12 documents. DOJ responded that ten of the records were
OLC “Form and Legality Memoranda” (“F&L
Memos”) and two of the records were “File
Memoranda Recording Oral Legal Advice (“File
Advocates filed an administrative appeal with DOJ on or about
July 17, 2017, arguing that OLC did not provide legally
sufficient descriptions of the withheld records, nor adequate
justification for its purported exemption to disclosure under
FOIA Exemption 5. DOJ denied the appeal.
October 12, 2017, Advocates filed the instant suit under FOIA
with a single cause of action: “Unlawful Invocation of
FOIA Exemption Five.” Advocates now move for summary
judgment on the basis that DOJ and/or OLC has no reasonable
justification for withholding the 12 records at issue and
that FOIA Exemption 5 does not apply. Advocates ask the Court
to rule in its favor and immediately order DOJ to turn over
the records. DOJ filed a cross-motion for summary judgment
alleging that it does have legally sufficient reasons for
withholding the records under three different privileges. DOJ
urges the Court to rule in its favor and allow the
withholdings to stand.
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). This Court's role at summary judgment is not
“to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Zetwick v. Cty. of Yolo, 850 F.3d 436,
441 (9th Cir. 2017) (citation omitted). In considering a
motion for summary judgment, this Court must “view
the facts in the non-moving party's favor.”
Id. To defeat a motion for summary judgment, the
respondent need only present evidence upon which “a
reasonable juror drawing all inferences in favor of the
respondent could return a verdict in [his or her]
favor.” Id. (citation omitted). Accordingly,
this Court must enter summary judgment if a party
“fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The respondent cannot simply rely on an
unsworn affidavit or the pleadings to defeat a motion for
summary judgment; rather the respondent must set forth the
“specific facts, ” supported by evidence, with
“reasonable particularity” that precludes summary
judgment. Far Out Prods., Inc. v. Oskar, 247 F.3d
986, 997 (9th Cir. 2001).
standard applicable to motions for summary judgment do not
generally change if the parties file cross motions. See,
e.g., Cady v. Hartford Life & Accidental
Ins., 930 F.Supp.2d 1216, 1223 (D. Idaho 2013). However,
the Court must evaluate each party's motion on its own
merits. Fair Housing Council of Riverside Cty., Inc. v.
Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).
Freedom of Information Act
requires federal agencies to make government records
available to citizens upon request, subject to certain
exemptions. See 5 U.S.C. § 552(a)(3)(A); §
552(b). “The basic purpose of FOIA is to ensure an
informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the
governors accountable to the governed.” NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)
(internal citation omitted).
FOIA is intended to promote government transparency, FOIA
exemptions are “intended to have meaningful reach and
application.” John Doe Agency v. John Doe
Corp., 493 U.S. 146, 152 (1989). To that end, Congress
has recognized that “public disclosure is not always in
the public interest, ” C.I.A. v. Sims, 471
U.S. 159, 167 (1985), as “legitimate governmental and
private interests could be harmed by release of certain types
of information, ” F.B.I. v. Abramson, 456 U.S.
615, 621 (1982). Accordingly, Congress has sought to reach a
“workable balance” between the public's right
to know and the government's need to protect confidential
information. Manna v. U.S. Dep't of Justice, 51
F.3d 1158, 1163 (3d Cir. 1995) (quoting John Doe
Agency, 493 U.S. at 152).
agency resisting public disclosure has “the burden of
proving the applicability of an exception.” Minier
v. Central Intelligence Agency, 88 F.3d 796, 800 (9th
Cir. 1996) (citing 5 U.S.C. § 552(a)(4)(B)).
contains nine statutory exemptions to full disclosure, which
“must be narrowly construed.” Milner v.
Dep't of the Navy, 562 U.S. 562, 565 (2011). The
only one relevant in this case is Exemption 5, which permits
agencies to withhold “inter-agency or intra-agency
memorandums or letters which would not be available by law to
a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5).
order for an agency to properly withhold a document under
Exemption 5, “a document must . . . satisfy two
conditions: its source must be a Government agency, and it
must fall within the ambit of a privilege against discovery
under judicial standards that would govern litigation against
the agency that holds it.” Dep't of Interior v.
Klamath Water Users Protective Ass'n, 532 U.S. 1, 8
(2001). The exemption applies to generally recognized common
law privileges against disclosure, such as the
attorney-client, deliberative process, and presidential
communication privileges. Id.; see also Carter
v. Dep't of Commerce, 307 F.3d 1084, 1088 (9th Cir.
judgment is the procedural vehicle by which most FOIA actions
are resolved. See Assembly of State of Cal. v. U.S.
Dep't of Commerce, 968 F.2d 916, 919 (9th Cir.
cases, “[t]he agency may meet its burden by submitting
a detailed affidavit showing that the information
‘logically falls within one of the claimed
exemptions.'” Minier, 88 F.3d at 800. An
agency may also meet its burden by producing a
Vaughn index. Reliant Energy Power
Generation, Inc. v. F.E.R.C., 520 F.Supp.2d 194, 200
(D.D.C. 2007). A Vaughn index, with accompanying
declaration, ordinarily “identifies each document
withheld, the statutory exemption claimed, and an explanation
of how disclosure would damage the interest protected.”
Schiffer v. F.B.I., 78 F.3d 1405, 1408 (9th Cir.
1996). The “purpose of the index is to afford the FOIA
requester a meaningful opportunity to contest, and the
district court an adequate opportunity to review, the
soundness of the withholding.” Fiduccia v. U.S.
Dep't of Justice, 185 F.3d 1035, 1042 (9th Cir.
1999) (internal quotation marks omitted).
outlines that under FOIA Exemption 5 it is claiming three
privileges for its refusal to release each of the 12 records
at issue. Those privileges are the presidential
communications privilege, the deliberative process privilege,
and the attorney-client privilege. The Court will address
each privilege in turn. Following that discussion, the Court
will analyze two theories proffered by Advocates that the
documents lost their privileged status (assuming arguendo it
existed in the first place) because of actions taking by DOJ,
OLC, the President, and/or other senior advisors. As a
threshold matter, however, the Court must discuss the
sufficiency of DOJ's Vaughn index.
DOJ did not originally supply Advocates with a
Vaughn index, it has done so now. Dkt. 18-1, at
4-7. While a
Vaughn index is not required by statute-or any other
mechanism-an agency claiming an exemption cannot carry its
burden by just relying on conclusory or generalized
assertions of privilege and a Vaughn index has
become the accepted “privilege log” in FOIA
cases. See Coastal States Gas Corp. v. Dep't of
Energy, 617 F.2d 854 (D.C. Cir. 1980); Nat'l
Parks & Conservation Ass'n v. Kleppe, 547 F.2d
673 (D.C. Cir. 1976); Mead Data Cent., Inc. v. U.S.
Dep't of Air Force, 566 F.2d 242 (D.C. Cir.
1977); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973). In its Vaughn index, DOJ outlines the records
it seeks to withhold from disclosure and why. Records 1 and
10 are both File Memoranda. These are essentially memoranda
that memorialize legal advice DOJ orally gave to the White
House Counsel's Office and the Council on Environmental
Quality. Colborn Decl., Dkt. 12-3, ¶14. The
remaining ten records are F&L Memos. OLC drafts F&L
Memos to advise the President regarding-as the name
indicates-the form of a proposed presidential proclamation
and its legality. Id. at ¶ 15. In other words,
these F&L Memos include legal advice.
Court will not include the whole index here, but it is
helpful to see how DOJ structured its index, so the Court
provides the first two index entries for illustrative
purposes. As shown below, DOJ first listed the date each
record was created, followed by the record's author.
Next, a brief description of the particular record is given.
The two File Memoranda (records 1 and 10) have the same
general description as shown below for record 1 and the other
ten F&L Memos have the same general description as shown
below for record 2. Finally, DOJ lists the privileges it
claims as to each record under FOIA Exemption 5.
July 23. 2008
John P. Elwood, Deputy Assistant Attorney General
("DAAG"); Daniel Koffsky, DAAG; Steven P.
Lehotsky, Altomey-Adviser ("AA")
Memorandum to File recording legal advice provided
to the Office of the Counsel of the President
regarding, among other things, the authority of the
President of the United Slates under the
Antiquities Act of 1906
(b)(5): deliberative process privilege
("DPP"), attorney-client privilege
("ACP"). presidential communications
Oct. 24, 2011
Virginia A. Seitz, Assistant Attorney General
Memorandum to the President regarding the form and
legality of a proposed presidential proclamation.
Contains legal advice to the President and
memorializes confidential communications with
executive branch agency officials and senior
advisers to the President and legal advice provided
to those officials in the course of reviewing the
proposed proclamation. Includes a cover letter to
the President re the same, and the draft
(b)(5): DPP, ACP, PCP
Dkt. 18-1, at 4.
take issue with DOJ's index, namely its lack of
specificity in regards to the recipients of the records, as
well as its “boilerplate” descriptions.
support of its position that its index is sufficient, DOJ
relies primarily upon Ninth Circuit cases. In support of its
position that the index is lacking specificity, Advocates
rely primarily upon cases from the D.C. Circuit. The Ninth
Circuit's decisions are binding upon this Court; however,
the D.C. Circuit has dealt with the majority of FOIA cases
over the years and federal courts across the country give
great deference to its authority and analysis in this
particular area of law.
noted, there is no set formula for a Vaughn index.
See Fiduccia, 185 F.3d at 1042. Under FOIA, an
agency simply has to “notify the person making such
request of such determination and the reasons
therefor.” 5 U.S.C. § 552(a)(6)(A)(i)(I). The
Ninth Circuit has interpreted this phrase to require the
responding agency to “provide enough information,
presented with sufficient detail, clarity, and verification,
so that the requester can fairly determine what has not been
produced and why, and the court can decide whether the
exemptions claimed justify the nondisclosure.”
Fiduccia, 185 F.3d at 1043; see also Yonemoto v.
Dep't of Veterans Affairs, 686 F.3d 681, 688 (9th
final analysis, “an agency's justification for
invoking a FOIA exemption is sufficient if it appears
‘logical' or ‘plausible.'”
Hamdan v. U.S. Dep't of Justice, 797 F.3d 759,
774 (9th Cir. 2015) (citations omitted). “If the
affidavits contain reasonably detailed descriptions of the
documents and allege facts sufficient to establish an
exemption, ‘the district court need look no
further.'” Lane v. Dep't of Interior,
523 F.3d 1128, 1135-36 (9th Cir. 2008) (citation omitted).
object to the fact that DOJ has not listed a specific
recipient for each of the records in its index. While the law
does not require DOJ to list this information, the Fourth
Circuit has observed that “where the list fails to
identify either the author or its recipient, those
persons' relationships to the decisionmaking process
cannot be identified and it becomes difficult, if not
impossible, to perceive how the disclosure of such documents
would result in a chilling effect upon the open and frank
exchange of opinions within the agency.” Ethyl
Corp. v. U.S. EPA, 25 F.3d 1241, 1250 (4th Cir.
1994).Advocates assert that DOJ must provide this
information; otherwise, its Vaugh ...