Prop. of the People, Inc. v. Office of Mgmt. & Budget

• Decision Date: 19 August 2019
• Docket Number: Civil Action No.: 17-1677 (RC)
• Parties: PROPERTY OF THE PEOPLE, INC. and Ryan Noah Shapiro, Plaintiffs, v. OFFICE OF MANAGEMENT AND BUDGET, Defendant.
• Court: U.S. District Court — District of Columbia

394 F.Supp.3d 39

PROPERTY OF THE PEOPLE, INC. and Ryan Noah Shapiro, Plaintiffs,

v.OFFICE OF MANAGEMENT AND BUDGET, Defendant.

Civil Action No.: 17-1677 (RC)

United States District Court, District of Columbia.

Signed August 19, 2019

Jeffrey Louis Light, Law Offices of Jeffrey Light, Washington, DC, for Plaintiffs.

Joseph C. Dugan, Steven A. Myers, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge

GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Before the Court for the second time on cross-motions for summary judgment, this Freedom of Information Act ("FOIA") case now involves only one narrow dispute. Plaintiffs Ryan Shapiro and Property of the People, Inc. contend that they are entitled to eight entries in a Microsoft Outlook calendar maintained by the Director of the Office of Management and Budget ("OMB"). According to OMB, each of these eight entries corresponds to a meeting of the National Security Council ("NSC") that concerned one of three subject matters: "foreign relations policy," "transportation policy," or "infrastructure policy." But beyond those general subject-matter descriptions, OMB has withheld the eight entries in their entirety—asserting the presidential communications privilege. The sole question for the Court, then, is whether OMB has established that this privilege claim is proper. For the reasons provided below, OMB has met its burden, so the Court grants the agency's motion and denies Plaintiffs'.

II. LEGAL STANDARD

As the Court explained in its prior opinion in this case, FOIA "sets forth a policy of broad disclosure of Government documents in order to ensure an informed citizenry, vital to the functioning of a democratic society." Prop. of the People, Inc. v. Office of Mgmt. & Budget , 330 F. Supp. 3d 373, 379 (D.D.C. 2018) (internal quotation marks omitted) (quoting FBI v. Abramson , 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) ). "The Act requires government agencies to make information available upon request, unless the information is protected by one of nine statutory ‘exemptions.’ " Judicial Watch, Inc. v. U.S. Dep't of Def. , 847 F.3d 735, 738 (D.C. Cir. 2017) (quoting NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 136, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ); see also 5 U.S.C. § 552(b). Cases arising under the Act "typically and appropriately are decided on motions for summary judgment." Pinson v. Dep't of Justice , 313 F. Supp. 3d 88, 105 (D.D.C. 2018) (quoting Defs. of Wildlife v. U.S. Border Patrol , 623 F. Supp. 2d 83, 87 (D.D.C. 2009) ). Summary judgment is generally warranted when "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). For these purposes, a fact is "material" if it is "capable of affecting the substantive outcome of the litigation." Pinson , 313 F. Supp. 3d at 105. "A dispute is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmovant." Bloche v. Dep't of Def. , 370 F. Supp. 3d 40, 49 (D.D.C. 2019).

This all means that, in the "FOIA context, a government agency is ‘entitled to summary judgment if no material facts are genuinely in dispute and the agency demonstrates that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of the records have been disclosed after redaction of exempt information.’ " Id. (internal quotation marks omitted) (quoting Prop. of the People , 330 F. Supp. 3d at 380 ). The burden is thus on the government, and that "burden does not shift even when the requester files a cross-motion for summary judgment because ‘the [g]overnment ultimately has the onus of proving that the documents are exempt from disclosure,’ while the ‘burden upon the requester is merely to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.’ " Hardy v. ATF , 243 F. Supp. 3d 155, 162 (D.D.C. 2017) (internal quotation marks and brackets omitted) (quoting Pub. Citizen Health Research Grp. v. FDA , 185 F.3d 898, 904–05 (D.C. Cir. 1999) ).

To meet its burden, the government may rely on affidavits or "declarations that are reasonably detailed and non-conclusory." Pinson , 313 F. Supp. 3d at 106. The Court may grant summary judgment based on such materials when they "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." Larson v. Dep't of State , 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey , 730 F.2d 773, 776 (D.C. Cir. 1984) ). Thus, "[u]ncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail." Ancient Coin Collectors Guild v. U.S. Dep't of State , 641 F.3d 504, 509 (D.C. Cir. 2011). That said, FOIA exemptions must also be "narrowly construed," and "conclusory and generalized allegations of exemptions are unacceptable." Prop. of the People , 330 F. Supp. 3d at 380 (quoting Morley v. CIA , 508 F.3d 1108, 1114–15 (D.C. Cir. 2007) ).

III. ANALYSIS

As the Court already noted, the parties' dispute at this stage of the proceedings is narrow. Plaintiffs now challenge only the withholding of eight calendar entries related to meetings of the NSC. According to OMB, those eight entries are exempt from disclosure under FOIA Exemption 5, which applies to agency records "that would not be available by law to a party ... in litigation with the agency," 5 U.S.C. § 552(b)(5). The exemption, in other words, "incorporates the traditional privileges that the Government could assert in civil litigation against a private litigant—including the presidential communications privilege." Bloche , 370 F. Supp. 3d at 50 (internal quotation marks omitted) (quoting Loving v. Dep't of Def. , 550 F.3d 32, 37 (D.C. Cir. 2008) ).

As its name likely suggests, the presidential communications privilege "preserves the President's ability to obtain candid and informed opinions from his advisors and to make decisions." Loving , 550 F.3d at 37. It "applies to communications made in the process of arriving at presidential decisions," and it protects those communications in their entirety. In re Sealed Case , 121 F.3d 729, 745 (D.C. Cir. 1997). Naturally, then, the privilege protects "communications directly involving and documents actually viewed by the President" during that process of shaping policies and making presidential decisions. Judicial Watch, Inc. v. Dep't of Justice , 365 F.3d 1108, 1114 (D.C. Cir. 2004) ; see also Nixon v. Adm'r of Gen. Servs. , 433 U.S. 425, 449, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). But the privilege extends further as well: to communications " ‘solicited and received’ by ... ‘immediate White House advisers’ "—those with " ‘broad and significant responsibility for investigating and formulating the advice to be given to the President.’ " Loving , 550 F.3d at 37 (omission in original) (quoting Judicial Watch v. Dep't of Justice , 365 F.3d at 1114 ).

Here, OMB does not assert that the eight NSC meetings constitute communications that actually reached the President. The agency concedes that the President did not himself attend the majority (and maybe all) of the eight meetings. See Def.'s Opp'n Pl.'s Cross-Mot. Summ. J. at 2 n.1, ECF No. 31. Rather, most of these meetings, OMB says, involved the NSC's Principals Committee ("PC") or Principals Small Group ("PSG")—which are the "Cabinet-level senior interagency forum[s] for considering policy issues" affecting national security, see National Security Presidential Memorandum-4 ("NPRM-4"), 82 Fed. Reg. 16881, 16882 (Apr. 4, 2017).¹ Notwithstanding the President's absence, OMB contends that the eight meetings are privileged because the NSC is, by its nature, a body whose sole purpose is to advise the President. Consequently, any NSC meeting, OMB argues, is a communication "solicited and received" by the President's immediate advisers.

For their part, Plaintiffs avoid any argument that the Outlook calendar entries are not the kind of document that can be covered by the privilege. Instead, Plaintiffs focus on the fact that most of the members of the NSC (and the PC and PSG) are Cabinet officials or other agency heads—individuals whose primary responsibilities are to run their respective agencies, not formulate advice to the President. Thus, according to Plaintiffs, OMB has not established how these particular NSC communications were "solicited and received" by immediate White House advisers.

In the Court's view, OMB has the better of these arguments, for at least four reasons taken together:

First , though not dispositive, OMB is correct that the NSC and its subcommittees exercise no "meaningful non-advisory authority." Armstrong v. Exec. Office of the President , 90 F.3d 553, 565 (D.C. Cir. 1996). Indeed, "Congress has not itself ... delegated substantial authority to the NSC." Id. By statute, the Council's functions are to:

(1) advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to enable the Armed Forces and the other departments and agencies of the United States Government to cooperate more effectively in matters involving national security;

(2) assess and appraise the objectives, commitments, and risks of the United States in relation to the actual and potential military power of the United States and make recommendations thereon to the President ;

(3) make recommendations to the President concerning policies on matters of common interest to the departments and agencies of the United States Government concerned with the national security; and

(4) coordinate, without assuming operational authority , the United

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