RUDOLPH CONTRERAS, District Judge.
Re Document Nos. 31, 34.
DEFERRING JUDGMENT ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
The Protect Democracy Project, a watchdog organization, seeks a memorandum describing legal advice that government lawyers gave the President's advisors about an airstrike against an Iranian general. To that end, the Project filed this Freedom of Information Act ("FOIA") lawsuit against the Department of Justice, the Department of Defense, and the Department of State (collectively, "the Government"). The Government refuses to give up the memo. It claims that the memo's contents are privileged. Without reviewing the memo, the Court cannot say whether that is the case. Accordingly, it will defer ruling on the parties' opposing summary judgment motions until it can review the memo in camera.
At the beginning of 2020, the United States conducted a drone strike in Iraq that killed Iranian General Qassem Soleimani. Pl.'s Statement of Undisputed Facts ("Pl.'s Statement") ¶ 6, ECF No. 34-4. Soleimani was the head of Iran's Quds Force, a component of the Revolutionary Guard responsible for foreign intelligence and paramilitary operations. Pl.'s Mot., Ex. C at 1. In that capacity, he reportedly engineered the deaths of hundreds of Americans in Iraq. Id.
The Administration sent mixed messages following the strike. President Trump and Secretary of State Mike Pompeo told reporters that Soleimani posed an imminent threat—likely to American embassies—and thus needed to be stopped. Pl.'s Statement ¶¶ 15, 20, 24-26, 30. But Secretary of Defense Mark Esper said that he had seen no evidence of a planned attack on U.S. embassies. Id. ¶ 27. And Attorney General William Barr described the "concept of imminence" as "something of a red herring." Id. ¶ 32. In addition, it turned out that President Trump had authorized the strike against Soleimani seven months earlier. Id. ¶ 29.
Nearly a month after the strike, the President sent a notice to Congress informing it of "a change in application of the existing legal and policy frameworks" governing the use of military force. Pl.'s Mot., Ex. V ("NDAA Notice") at 1, ECF No. 34-27; see also Pl.'s Mot., Ex. U ("NDAA Notice Letter"), ECF No. 34-26. The one-and-a-half-page notice said that the strike responded to an "escalating series of attacks in preceding months by Iran and Iran-backed militias on United States forces and interests in the Middle East region." NDAA Notice at 1. It explained that the strike was intended "to protect United States personnel, to deter Iran from conducting further attacks . . ., to degrade Iran's and Qods Force-backed militias' ability to conduct attacks, and to end Iran's strategic escalation of attacks on, and threats to United States interests." Id. Ultimately, the notice justified the strike under international law as self-defense and under domestic law as permitted by Article II and the 2002 Authorization for Use of Military Force Against Iraq ("2002 AUMF"). Id. at 1-2.
Over a month later, Defense Department General Counsel Paul Ney gave a speech on the strike at Brigham Young University Law School. The "aim" of the speech, Ney said, was "to explain the international and domestic law underpinnings" of the strike. See Pl.'s Mot., Ex. X ("BYU Speech") at 1, ECF No. 34-29. He provided factual background on Soleimani and U.S. involvement in Iraq, id. at 2-4, described how the strike was legal under international law, id. at 4-6, and then outlined the legal bases for the strike under domestic constitutional and statutory law, id. at 6-8. Ney echoed the same "Bottom Line" as the President's notice to Congress: he asserted that the strike was self-defense under international law and grounded domestic authority for carrying it out in Article II and the 2002 AUMF. Id. at 1-2. The Department of Defense posted the speech on its website. See generally id.
Apparently displeased with the Administration's decision to act unilaterally against Soleimani, Congress passed a joint resolution purporting to prohibit further military action against Iranian forces without congressional approval. See Pl.'s Mot., Addendum A. It said, among other things, that no statute gave the President power to use military force against Iran. Id. President Trump vetoed the resolution. In an accompanying statement, he specifically rejected Congress's assertion that the strike lacked statutory authorization. See Pl.'s Mot., Ex. Y ("Veto Statement") at 2, ECF 34-30. He reiterated that he had the power to call for the strike under Article II and the 2002 AUMF. See id. at 2-3.
This litigation has its origins in the day after the strike. That day, the Project submitted a FOIA request to the Department of Justice, the Department of Defense, and the Department of State asking for a variety of records relating to the strike. Defs.' Statement of Material Facts ("Defs.' Statement") ¶ 1, ECF No. 38. After bringing suit against the agencies in an effort to compel disclosure, the Project eventually agreed to narrow its request to a single document: a memorandum written by attorneys at the Office of Legal Counsel in the Department of Justice (the "OLC Memo"). See id. ¶ 10. According to a member of that office ("OLC"), the document memorializes legal advice given to the President's national security advisors prior to the strike. Colborn Decl. ¶ 15, ECF No. 31-1. The Government argues it does not have to disclose the memo. See Defs.' Mem. Supp. Mot. Summ. J. ("Defs.' Mot."), ECF No. 31. Both sides now move for summary judgment. See id.; Pl.'s Mem. Supp. Mot. Summ. J. and Opp'n Defs.' Mot. Summ. J. ("Pl.'s Mot."), ECF No. 34-1.
III. LEGAL STANDARD
The Freedom of Information Act is meant "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). It "thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions." Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011). Those exemptions reflect Congress's recognition that "public disclosure is not always in the public interest." ACLU v. U.S. Dep't of Def., 628 F.3d 612, 618 (D.C. Cir. 2011) (quoting CIA v. Sims, 471 U.S. 159, 167 (1985)). But because "disclosure, not secrecy, is the dominant objective of the Act," the exemptions "must be narrowly construed." Rose, 425 U.S. at 361. For the same reason, the Government "bears the burden of showing that a claimed exemption applies." See Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014).
A court must grant a motion for summary judgment "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). Given that FOIA disputes usually involve the application of law to undisputed facts, they are "typically and appropriately" resolved on such motions. See Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); see also Judicial Watch, Inc. v. U.S. Dep't of Def., 245 F.Supp.3d 19, 26 (D.D.C. 2017). The Government can earn summary judgment only if it presents affidavits that "describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Elec. Frontier Found., 739 F.3d at 7 (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears `logical' or `plausible.'" Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)).
To avoid disclosing the OLC Memo, the Government invokes only one exemption: Exemption 5. Exemption 5 protects "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552. It "simply incorporates civil discovery privileges" that the agency could assert in ordinary litigation. United States v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); see also Taxation With Representation Fund v. IRS, 646 F.2d 666, 676 (D.C. Cir. 1981). Applicable here, the Government argues, are the presidential communications, attorney-client, and deliberative process privileges. Defs.' Mot. at 5.
There is little doubt that at least the presidential communications privilege covers the OLC Memo. That privilege protects "communications made by presidential advisers in the course of preparing advice for the President," including those "which . . . advisers solicited and received from others." In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997). It "covers documents reflecting `presidential decisionmaking and deliberations,' regardless of whether the documents are predecisional or not, and it covers the documents in their entirety." Loving v. Dep't of Def., 550 F.3d 32, 37-38 (D.C. Cir. 2008) (quoting In re Sealed Case, 121 F.3d at 744).
The OLC Memo fits that bill. John Eisenberg, Deputy Counsel to the President and Legal Adviser to the National Security Council, asked OLC to prepare the memo to memorialize advice the office had given the President and other senior officials prior to the strike. Colborn Decl. ¶ 15. That kind of advice is exactly the sort of communication the privilege is meant to shield. See, e.g., Protect Democracy Project, Inc. v. U.S. Dep't of Def., 320 F.Supp.3d 162, 173 (D.D.C. 2018) ("[I]f the [National Security Council] Legal Adviser were to solicit a document related to a national security decision being contemplated by the President, it would no doubt be protected by the presidential communications privilege."); Judicial Watch, Inc. v. U.S. Dep't of Def., 245 F.Supp.3d 19, 28 (D.D.C. 2017) (holding that privilege applied to memoranda memorializing advice that CIA, Department of Defense, and National Security Council lawyers gave the President and his national security team before the raid on Osama bin Laden's compound).
The Project does not disagree. Rather than dispute the appropriateness of any privilege individually, it counters that the OLC Memo should be made public either because it represents the Government's "working law" or because the Government waived its privileges. See Pl.'s Mot. at 12. The Court rejects the first argument, but it needs to review the OLC Memo before it can rule on the second. Consequently, the Court orders the Government to submit the memo for in camera inspection.
A. The OLC Memo Does Not Represent the Executive Branch's Working Law
FOIA requires agencies to disclose their "working law." Elec. Frontier Found., 739 F.3d at 7 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 152-53 (1975)). Working law consists of "`binding agency opinions and interpretations' that the agency `actually applies in cases before it.'" Id. (quoting Schlefer v. United States, 702 F.2d 233, 244 (D.C. Cir. 1983)). It includes "the reasons which did supply the basis for an agency policy actually adopted . . . . if expressed within the agency." Sears, 421 U.S. at 152-53; accord Ball v. Bd. of Governors of Fed. Rsrv. Sys., 87 F.Supp.3d 33, 48 (D.D.C. 2015). The purpose of the working law doctrine is to prevent an agency from "develop[ing] a body of `secret law,' used by it in the discharge of its regulatory duties and in its dealings with the public, but hidden behind a veil of privilege because it is not designated as `formal,' `binding,' or `final.'" Elec. Frontier Found., 739 F.3d at 7 (internal quotation marks omitted) (quoting Schlefer, 702 F.2d at 244).
Usually, working law cases deal with an agency document that sets forth that agency's general policy or applies the policy to particular circumstances. See id. at 9; see also id. at 7-8 (summarizing cases). This case is different. OLC cannot speak for the President and his national security advisors, so its memo "amounts to advice offered . . . for [their] consideration." Id. at 8. (discussing OLC Opinion written to advise FBI officials). Documents of that nature—those which "concern the advisability of a particular policy, but do not authoritatively state or determine the agency's policy"—are "not the law of an agency unless the agency adopts it." Id. The Project recognizes as much. See Pls.' Reply Supp. Mot. Summ. J. ("Pls.' Reply") at 3, ECF No. 41. The working law question thus comes down to whether the Government adopted the OLC Memo to justify the strike against Soleimani.
An agency forfeits its claim to Exemption 5's protections if it "`chooses expressly to adopt or incorporate by reference' a memorandum that would have otherwise been protected by . . . privilege." Elec. Frontier Found., 739 F.3d at 10 (quoting Sears, 421 U.S. at 161). Critically, a "casual allusion in a post-decisional document," Common Cause v. IRS, 646 F.2d 656, 660 (D.C. Cir. 1981), or an agency official's mere "reference to a report's conclusions," Access Reports v. Dep't of Justice, 926 F.2d 1192, 1197 (D.C. Cir. 1991), is not enough. Adoption requires not just agreement with a document's conclusions but the agency's ratification of the document's reasoning. See Elec. Frontier Found., 739 F.3d at 10 ("[I]t must be evident that `the reasoning in the report is adopted by the [agency] as its reasoning, even when [the agency's decision] agrees with the conclusion of a report.'" (alterations in original) (quoting Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 (1975))).
The Project says that the Executive Branch signaled its adoption of the OLC Memo on three occasions: when the President sent his notice of the strike to Congress, when Defense Department General Counsel Ney gave his speech at BYU Law School, and when the President vetoed Congress's joint resolution prohibiting further military action against Iran. See Pl.'s Mot. at 12-14. Neither the notice nor the veto statement acknowledges the OLC Memo at all. See NDAA Notice; Veto Statement. And "[m]uch" of the rationale Ney related in his speech was "reflected in publicly available documents." BYU Speech at 1. But Ney did reference OLC documents at one point. He explained that the Constitution did not require congressional preapproval for the strike because it did not rise to the level of "war" as defined by "[t]he relevant Department of Justice OLC opinions." Id. at 6. After sketching out that definition in one paragraph, he applied it to the Soleimani case in another. Id. at 6-7.
None of these statements constituted public adoption of the OLC Memo. Two of the three did not even mention the memo, much less "expressly . . . adopt or incorporate [it] by reference." See Sears, 421 U.S. at 161. And Ney did little more in his speech. He did not single out the OLC Memo specifically or state that it embodied Executive Branch policy. At best, his nonspecific mention of "[t]he relevant . . . OLC opinions" was just the sort of "casual allusion" or "reference" that the D.C. Circuit has repeatedly warned falls short of adoption. See Common Cause, 646 F.2d at 660 (rejecting adoption when a post-decisional memo made merely a "casual allusion" to "reasons discussed" in the requested, pre-decisional documents); Access Reports, 926 F.2d at 1197 (explaining that, even if "one might read the confused statement" of an agency official "as a reference" to results contained in the requested document, it "fell far short of the express adoption required").
The Project nevertheless argues that the three statements indicate the Executive Branch has adopted the OLC Memo internally.
NDAA Notice at 1.
The Court cannot agree. Most importantly, the shared language the Project highlights offers little in the way of reasoning. The similar sentences found in each statement merely repeat the conclusion that the strike against Soleimani was consistent with prevailing interpretations of the 2002 AUMF. Those excerpts do not engage with the text of the AUMF, analogize to specific instances of historical practice, or grapple with counterarguments. Instead, the statements share only a "generic explanation" of the President's statutory authority. Cf. Ball, 87 F. Supp. 3d at 51 (holding that an agency did not adopt deliberative documents when press release, testimony, and a congressional report "merely recount[ed] the general factual background and reasons for [an agency's] decisions"). To infer a common source of reasoning from the fact that the statements share that high-level conclusion—or any others—would create a backdoor around precedent "refus[ing] to equate reference to a report's conclusions with adoption of its reasoning." See Elec. Frontier Found., 739 F.3d at 10 (quoting Access Reports, 926 F.2d at 1197); see also Renegotiation Bd., 421 U.S. 168, 184 (1975) (finding that documents fell within Exemption 5 in part because "the evidence utterly fail[ed] to support the conclusion that the reasoning in the reports w[as] adopted by the [agency] as its reasoning, even when it agree[d] with the conclusion"). And because the similar excerpts the Project focuses on do not even mention the OLC Memo, it is speculative to attribute them to the memo anyway. Indeed, contrary to the Project's telling of events, OLC did not finalize its memo until after the President sent his notice to Congress. Compare Notice of OLC Memorandum, ECF No. 25 (explaining that the OLC Memo "was signed after January 31, 2020"), with NDAA Notice Letter (listing the transmittal date of the notice as January 31, 2020).
While an agency bears the burden of demonstrating that a FOIA exemption applies, the requester bears the burden of establishing that the agency adopted a document as working law. See Ball, 87 F. Supp. 3d at 52; Sec. Fin. Life Ins. Co. v. Dep't of Treasury, No. 03-cv-102, 2005 WL 839543, at *6-7 (D.D.C. Apr. 12, 2005); see also Renegotiation Bd., 421 U.S. at 184 (ruling for agency when there was no evidence that it adopted reports' reasoning). The Project has not met that burden. Given that only Ney's speech even mentions an OLC opinion and that the three statements do not share much in common beyond high-level legal conclusions, it is far from "evident" that the Executive Branch has adopted the memo's reasoning as its own. See Elec. Frontier Found., 739 F.3d at 10.
B. The Court Must Review the OLC Memo
In Camera to Determine Whether the Government Waived Its Claim to Exemption 5
An agency's disclosure of information to the public or third parties can waive its claim to a FOIA exemption. See Davis v. U.S. Dep't of Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992); Mobil Oil Corp. v. U.S. EPA, 879 F.2d 698, 700 (9th Cir. 1989). Importantly, however, waiver by disclosure is limited to the information actually disclosed. See In re Sealed Case, 121 F.3d at 741 ("[R]elease of a document only waives [executive] privileges for the document or information specifically released, and not for related materials."); see also Rockwell Int'l Corp. v. U.S. Dep't of Justice, 235 F.3d 598, 605 (D.C. Cir. 2001) (denying Exemption 5 waiver in part because "quoting portions of some attachments" was not "inconsistent with a desire to keep the rest secret"). A broader rule might discourage agencies from voluntarily disclosing information "out of the fear that by doing so they are exposing other, more sensitive" information. See In re Sealed Case, 121 F.3d at 741. Because expecting an agency to prove that it has not somehow disclosed the requested information "might require [it] to undertake an exhaustive, potentially limitless search," the plaintiff asserting prior disclosure "bear[s] the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld." Davis, 968 F.2d at 1279 (quoting Afshar v. Dep't of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)); see also Protect Democracy Project, 320 F. Supp. 3d at 169; Nat'l Sec. Counselors v. CIA, 960 F.Supp.2d 101, 197 (D.D.C. 2013).
The Project says that each of the three public statements on the strike against Soleimani "publicly disclosed the subject of the OLC Memo," but it concentrates its waiver argument on Defense Department General Counsel Ney's speech at BYU Law School. See Pl.'s Mot. at 15. For assessing whether Ney waived a portion of the OLC Memo by disclosing it, the most significant part of the speech is his discussion of the constitutional authority for the strike. When explaining why the President did not need congressional preapproval for the strike, he said:
BYU Speech at 6-7. He went on to apply that standard to Soleimani's case:
Id. at 7 (alteration and omission in original). The Project argues that these passages indicate that the speech "very likely" disclosed the OLC Memo's conclusions and reasoning. See Pl.'s Mot. at 16; see also Pl.'s Reply at 7.
That may be right—at least, to some extent. Ney certainly quoted from some OLC document (or documents) in his speech. But whether he divulged the conclusions and reasoning of the memo dealing specifically with the strike against Soleimani is a different question. On the one hand, the three unattributed quotations that followed his reference to "[t]he relevant Department of Justice OLC opinions" defined "war" in terms that previously published OLC opinions treat as standard language.
Remember, however, that waiver applies only to the specific information previously disclosed. See In re Sealed Case, 121 F.3d at 741.
As things stand, the Court lacks the information it needs to determine the extent to which Ney's speech disclosed the OLC Memo's contents, if at all. The Court has not reviewed the memo. And the Government has not provided a detailed enough declaration to help the Court make that determination. Its declaration provides only a one-paragraph summary of the memo's contents, see Colborn Decl. ¶ 15, before a brief passage on waiver that does not even mention the speech. The declarant merely says: "To my knowledge, the document has not been previously disclosed publicly. In addition, I am not aware of any public statements by government officials that could constitute waiver of the privileges applicable to the document." Id. ¶ 23.
Because the Government declaration is "insufficiently detailed to permit meaningful review," there is only one document at issue, and the waiver question "turns on the contents" of the OLC Memo, the Court will order the Government to submit the memo for in camera inspection. See Spirko v. U.S. Postal Serv., 147 F.3d 992, 996 (D.C. Cir. 1998) (quoting Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996)); see also ACLU v. U.S. Dep't of Def., 628 F.3d at 626 ("Congress intended to . . . leave the decision of whether to conduct in camera inspection to the broad discretion of the trial judge." (citation omitted)). Contrast Protect Democracy Project, 320 F. Supp. 3d at 172 (denying waiver claim and in camera review because a government declarant "state[d] plainly" that the public document did not "quote from, describe, disclose, or even refer to" the requested document); ACLU v. CIA, 109 F.Supp.3d 220, 243 (D.D.C. 2015) (declining to review requested legal memoranda in camera when the agency declaration's "detailed descriptions" of the documents made clear that the plaintiff could not show prior disclosure), aff'd 640 F. App'x 9 (D.C. Cir. 2016). The Government shall submit the OLC Memo for in camera inspection within seven days of the issuance of this opinion and its accompanying order. In the meantime, the Court will defer ruling on the parties' cross-motions for summary judgment. Another order will follow once the Court has had a chance to review the memo.
For the foregoing reasons, the Court
The Government's contrary position reads too much into a sentence from Electronic Frontier Foundation meant only to distinguish cases cited by the plaintiff in that case: "But these cases are inapposite because, in each one, the agency itself publicly invoked the reasoning of the OLC memorandum to justify its new position." Id. at 11. That distinction defined the boundaries of public adoption. It made clear that the agency defendant there did not publicly adopt an OLC opinion when the agency's inspector general referred to it in a report or when an agency official mentioned the opinion merely in response to legislators' questions about it. See id. at 11-12. Electronic Frontier Foundation did not hold that public adoption was the only way an agency could adopt a policy. As the Project cogently explains, public invocation can be sufficient to adopt a policy, but it is not necessary. Pl.'s Reply at 4.