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Advocates for West v. United States Department of Justice

United States District Court, D. Idaho

August 6, 2018

UNITED STATES DEPARTMENT OF JUSTICE, a Department of the United States, Defendant.


          David C. Nye U.S. District Court Judge.

         I. OVERVIEW

         Pending 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).


         In the 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.

         On or 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.

         On May 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.”

         Advocates 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 Memoranda”).

         Unsatisfied, 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.

         On 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.


         A. Summary Judgment

         Summary 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).

         The 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).

         B. Freedom of Information Act

         FOIA 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).

         While 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).

         The 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)).

         FOIA 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).

         In 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. 2002).

         Summary 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. 1992).

         In FOIA 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[1] 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).

         IV. ANALYSIS

         DOJ 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.

         1. Vaughn Index

         Although DOJ did not originally supply Advocates with a Vaughn index, it has done so now. Dkt. 18-1, at 4-7.[2] 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.

         The 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.[3] 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 privilege ("PCP")


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 proclamation.

(b)(5): DPP, ACP, PCP

Dkt. 18-1, at 4.

         Advocates 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.

         In 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.

         As 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 Cir. 2012).

         In the 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).

         Advocates 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).[4]Advocates assert that DOJ must provide this information; otherwise, its Vaugh ...

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