Am. Ctr. for Law & Justice v. Dep't of State
| Decision Date | 23 April 2021 |
| Docket Number | Civil Action No. 16-1355 (TJK) |
| Citation | 535 F.Supp.3d 23 |
| Parties | AMERICAN CENTER FOR LAW AND JUSTICE, Plaintiff, v. DEPARTMENT OF STATE, Defendant. |
| Court | U.S. District Court — District of Columbia |
Abigail A. Southerland, American Center for Law & Justice, Franklin, TN, Jay Alan Sekulow, Stuart J. Roth, Benjamin Paul Sisney, Craig L. Parshall, Pro Hac Vice, Colby Mims May, American Center for Law & Justice, Washington, DC, for Plaintiff.
Jonathan D. Kossak, U.S. Department of Justice, Washington, DC, for Defendant.
TIMOTHY J. KELLY, United States District Judge This action, filed by the American Center for Law and Justice ("ACLJ") under the Freedom of Information Act ("FOIA"), concerns records relating to a portion of a video of a press briefing held by the State Department on December 2, 2013. At the briefing, a reporter had pressed then-State Spokesperson Jennifer Psaki about whether the Obama Administration had held secret direct bilateral talks with Iran in 2011 and whether Psaki's predecessor had lied to the press about whether those talks had happened. Then in May 2016, the reporter apparently discovered that Psaki's exchange with him had been deleted from the online video of the briefing, without explanation.
The Court refers the parties to its prior opinion, with which it assumes familiarity and incorporates by reference, in which it resolved almost all the issues in the parties’ previous set of cross-motions for summary judgment. ACLJ v. Dep't of State , 330 F. Supp. 3d 293 (D.D.C. 2018). That opinion sets forth the factual and procedural background of the case, the relevant legal standard, and the Court's analysis of the contours of the FOIA exemptions asserted by State. At that time, the Court granted summary judgment in State's favor as to the exemptions asserted (and on segregability) for all documents at issue except three, about which it held it did not have enough information to assess the exemptions’ propriety. Thus, it allowed State to submit additional declarations and Vaughn indices, and the parties to submit renewed motions for summary judgment, relating to those three documents, to which it now turns. For the reasons explained below, the Court will grant State's motion as to two of the remaining documents and grant ACLJ's motion on the remaining document for which State asserted the presidential communications privilege.
The first document at issue, Bates-labelled C06206248, is one of seven May 9, 2016 email threads that contained discussion between State officials about how it should respond to the reporter's inquiry about the missing portion of the video. ECF No. 37-4. In its first motion, State argued—and the Court agreed—that the deliberative process privilege covered six of the seven threads, and that State was therefore justified in withholding them under FOIA's Exemption 5. 330 F. Supp. 3d at 303–04. For the deliberative process privilege to apply, two conditions must be met. The withheld material must be "both ‘predecisional’ and ‘deliberative.’ " 100Reporters LLC v. DOJ , 248 F. Supp. 3d 115, 150 (D.D.C. 2017) (quoting Access Reports v. DOJ , 926 F.2d 1192, 1194 (D.C. Cir. 1991) ).
The Court withheld judgment on this document, however, which includes a "redacted email in which [a State official] confirmed to her colleagues that she had spoken to [the reporter]" because "[e]mails both prior to and after this confirmation email are redacted." 330 F. Supp. 3d at 304 (emphasis in original). Thus, the Court could not tell "whether the privilege [applied] to the confirmation email, and the emails sent afterwards; obviously, these documents [were] not predecisional with respect to State's response to [the reporter's] inquiry." Id. Still, the Court noted, it was "possible that the privilege [did] apply" if, for example, "the emails contain[ed] discussions about a follow-up response to [the reporter], or about how to handle press inquiries on this topic in general." Id.
After the Court issued its opinion, State released the confirmation email to ACLJ without redaction. ECF No. 37-1 at 7. And as for the emails that followed the confirmation email, State submitted a new affidavit to the Court explaining that it redacted the information in them "because it reflects officials’ recommendations about how to engage the reporter moving forward and how to respond to any follow-up inquiries from the reporter." ECF No. 37-2 ("3d Stein Decl.") ¶ 14. And ACLJ, for its part, just argues that the Court got it wrong the first time. ECF No. 42 at 2–3. For all these reasons and those explained in its prior opinion, the Court holds that Document C06206248 is covered by the deliberative process privilege and thus State properly withheld it under Exemption 5 and fulfilled its duty to provide all reasonably segregable information.
The second document at issue, Bates-labelled C06189797, is a May 10, 2016, email thread in which two employees in State's Bureau of Public Affairs Office of Video Services discussed a news report about the edited video. ECF No. 37-5. In its first motion, State argued that the deliberative process privilege, and thus Exemption 5, covered information redacted from the email thread challenged by ACLJ. 330 F. Supp. 3d at 305. But the Court held that State had "not shown that the deliberative process privilege applies to this material, because it [had] not alleged that it was part of a process through which an agency decision or policy was formulated." Id. at 305–06.
After the Court issued its opinion, State reviewed the email thread further and decided, instead, to assert Exemption 6 to justify some of the redactions ACLJ had challenged before. ECF No. 37-1 at 1–2. Exemption 6 provides that agencies may withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). State asserts that the only information withheld under this exemption is the name of a State employee about whom State employees had (wrongfully) speculated had edited the video. ECF No. 37-1 at 9; 13–16. State also continues to justify under Exemption 5 what appears to be one final redaction, by explaining that the employees were responding to an inquiry by the head of the Office of Video Services about what had happened. Id. at 9–10. And, State asserts, that official later wrote a memorandum to his superiors based in part on information he received from his employees. Id.
In the end, though, the Court need not pass on either of State's justifications. ACLJ represents that, given State's representations, it has withdrawn its challenge to the material withheld under Exemption 6. ECF No. 42 at 9. Moreover, ACLJ makes no argument in its motion, opposition, or reply about the remaining redaction justified under Exemption 5 and so the Court considers its challenge to that withholding withdrawn as well. See Nat'l Day Laborer Organizing Network v. U.S. Immigration & Customs Enforcement , 811 F. Supp. 2d 713, 738 (S.D.N.Y. 2011) ().
The third and final document at issue, Bates-labelled C06190112, is the one on which the parties spill the most ink in this last round of briefing. It is a December 4–5, 2013, email chain involving National Security Council official Bernadette Meehan, White House official Ben Rhodes, Psaki, State's Deputy Spokesperson Marie Harf, and a reporter, about press guidance and strategy related to Iran. ECF No. 37-6. The thread began with an exchange between the reporter and Meehan. The reporter asked about an alleged "face-to-face meeting with Iranian officials in Oman in July 2012." Id. Meehan "decline[d] to discuss/confirm anything further related that channel." Id. She then forwarded the exchange to Psaki and Harf, and copied Rhodes. Id. State redacted almost all of Meehan's message to the group in her forwarding email. Id. Psaki then replied to Meehan by stating, "[h]appy to and we will also work to shut [another person] down." Id.
In its first motion, State argued that the redacted material was covered by the presidential communications privilege, and thus that State was justified in withholding them under FOIA's Exemption 5. 330 F. Supp. 3d at 308. The Court held that the State official who had submitted a declaration could determine that the privilege applied, but that it did not have enough information about the redacted material be able to say whether the information was covered by the privilege. Id. at 308–10.
State has now submitted another Vaughn index and declaration that, combined with its prior submissions, provides more information about the redacted material. ECF No. 37-2. In summary, the redacted material was sent by Meehan, a "[National Security Council] official" to Psaki and Harf, with a copy to Rhodes, a "White House official." ECF No. 31-1 at 4. Meehan and Rhodes were "presidential advisors" who "advised the President on, among other things, how to present and explain Iran-related policy to the public." Id. The redacted information includes "details about the subject and timing of an inter-agency government meeting, involving high-level officials in the administration's foreign policy and national security teams, pertaining to Iran that took place shortly before the e-mail exchange." ECF No. 37-2 at 8. More specifically, "the withheld information also includes details about the decision reached in that meeting concerning the administration's response to the press reports regarding U.S.-Iran talks—the subject of the December 2, 2013, press briefing video—and how to communicate Iran-related policy to the public." Id. at 8-9. The meeting at issue was convened within the framework established by Presidential Policy Directive 1 ("PPD-1"), which "laid out the organization of the [National Security...
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