Case 1:17-cv-00842-CRC Document 28 Filed 01/09/18 Page 1 of 37

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY

PROJECT, INC.,

Plaintiff,

v. No. 17-cv-0842-CRC

U.S. DEPARTMENT OF DEFENSE, et al.,

Defendants.

DEFENDANTS’ REPLY IN SUPPORT OF MOTION

FOR SUMMARY JUDGMENT AND OPPOSITION TO
PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT
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TABLE OF CONTENTS

INTRODUCTION ......................................................................................................................... 1

ARGUMENT ................................................................................................................................. 3

I. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON ALL CONCEDED

ISSUES .................................................................................................................................... 3

II. DEFENDANTS PROPERLY WITHHELD INFORMATION PURSUANT TO FOIA

EXEMPTION 5 ....................................................................................................................... 4

A. Defendants Have Shown That The Legal Memorandum Is Protected By The

Presidential Communications Privilege ............................................................................. 4

B. Defendants Properly Withheld Documents Protected By The Attorney-Client

Privilege ............................................................................................................................. 9

C. Defendants Properly Withheld Documents Protected By The Deliberative Process

Privilege ........................................................................................................................... 13

1. The Withheld Documents Are Not “Working Law” ................................................. 13

2. The OLC Outline And Documents Relating To Proposed Press Guidance, Talking
Points, And Recommended Responses To Congressional Questions Are
Predecisional and Deliberative .................................................................................. 17

D. Plaintiff Has Not Established That Defendants Have Waived Their FOIA Exemption
5 Claims ........................................................................................................................... 21

1. Defendants Have Not Waived The Presidential Communications And Deliberative

Process Privileges ...................................................................................................... 21

2. Defendants Have Not Waived The Attorney-Client Privilege .................................. 24

3. In Camera Review Is Unnecessary ............................................................................ 26

E. Defendants’ Submissions Are Sufficient To Justify Their Withholdings ....................... 27

CONCLUSION ............................................................................................................................ 31

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TABLE OF AUTHORITIES

Cases Page(s)
Access Reports v. U.S. Dep’t of Justice,
926 F.2d 1192 (D.C. Cir. 1991) .............................................................................................. 20
Afshar v. Dep’t of State,
702 F.2d 1125 (D.C. Cir. 1983) .............................................................................................. 22
Am. Civil Liberties Union v. CIA,
109 F. Supp. 3d 220 (D.D.C. 2015) ........................................................................................ 23
Am. Civil Liberties Union v. U.S. Dep’t of Justice,
No. 15-cv-1954, 2016 WL 889739 (S.D.N.Y. Mar. 3, 2016) ................................................ 27
Am. Civil Liberties Union v. U.S. Dep’t of Def.,
628 F.3d 612 (D.C. Cir. 2011) ................................................................................................ 26
Am. Civil Liberties Union v. U.S. Dep’t of Homeland Security,
738 F. Supp. 2d 93 (D.D.C. 2010) .................................................................................... 19, 29

Antoine v. U.S. Bank Nat’l Ass’n,

821 F. Supp. 2d 1 (D.D.C. 2010) ............................................................................................. 3

Armstrong v. Exec. Office of the President,

97 F.3d 575 (D.C. Cir. 1996) ................................................................................................. 27
Assassination Archives & Research Ctr. v. CIA,
334 F.3d 55 (D.C. Cir. 2003) .................................................................................................. 22
Ball v. Bd. of Govs. of the Fed. Reserve Sys.,
87 F. Supp. 3d 33 (D.D.C. 2015) ...................................................................................... 15, 16
Brennan Ctr. for Justice at N.Y. Univ. Sch. Of Law v. U.S. Dep’t of Justice,
697 F.3d 184 (2d Cir. 2012) ................................................................................................... 27
Brinton v. Dep’t of State,
636 F.2d 600 (D.C. Cir. 1980) ................................................................................................ 14
Canning v. U.S. Dep’t of State,
134 F. Supp. 3d 490 (D.D.C. 2015) .................................................................................. 24, 27
Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice,
658 F. Supp. 2d 217 (D.D.C. 2009) ........................................................................................ 20
Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854 (D.C. Cir. 1980) ........................................................................................ passim

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Comm. on Gov’t Oversight & Reform, U.S. House of Reps. v. Lynch,

156 F. Supp. 3d 101 (D.D.C. 2016) ........................................................................................ 19
Competitive Enterprise Inst. v. EPA,
12 F. Supp. 3d 100 (D.D.C. 2014) .......................................................................................... 18
Ctr. for Auto Safety v. EPA,
731 F.2d 16 (D.C. Cir. 1984) .................................................................................................. 26
Ctr. For Medicare Advocacy, Inc. v. U.S. Dep’t of Health & Human Servs.,
577 F. Supp. 2d 221 (D.D.C. 2008) ........................................................................................ 12
Cuban v. SEC,
744 F. Supp. 2d 60 (D.D.C. 2010) .......................................................................................... 11
Davis v. U.S. Dep’t of Justice,
968 F.2d 1276 (D.C. Cir. 1992) ........................................................................................ 22, 30
Edmonds v. FBI,
272 F. Supp. 2d 35 (D.D.C. 2003) .......................................................................................... 22
Elec. Frontier Found. (“EFF”) v. DOJ, 739 F.3d 1, 7 (D.C. Cir. 2014) ............................... passim
Elec. Frontier Found. v. U.S. Dep’t of Justice,
No. 10-641, 2012 WL 3900737 (D.D.C. Sept. 10, 2012) ....................................................... 20
Fitzgibbon v. CIA,
911 F.2d 755 (D.C. Cir. 1990) .......................................................................................... 22, 23
Gallant v. Nat’l Labor Relations Bd.,
26 F.3d 168 (D.C. Cir. 1994) .................................................................................................. 28
In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) ........................................................................................ passim
Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau,
60 F. Supp. 3d 1 (D.D.C. 2014) .............................................................................................. 19
Judicial Watch, Inc. v. Dep’t of Def.,
245 F. Supp. 3d 19 (D.D.C. 2017) .......................................................................................... 11
Judicial Watch, Inc. v. U.S. Dep’t of Justice,
365 F.3d 1108 (D.C. Cir. 2004)............................................................................................. 7, 8
Judicial Watch, Inc. v. Dep’t of the Treasury,
796 F. Supp. 2d 13 (D.D.C. 2011) .......................................................................................... 20
Judicial Watch, Inc. v. Export-Import Bank,
108 F. Supp. 2d 19 (D.D.C. 2000) .......................................................................................... 18

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Judicial Watch, Inc. v. Food & Drug Admin.,

449 F.3d 141 (D.C. Cir. 2006) ................................................................................................ 28
Judicial Watch, Inc. v. U.S. Dep’t of Treasury,
802 F. Supp. 2d 185 (D.D.C. 2011) ........................................................................................ 12
King v. U.S. Dep’t of Justice,
830 F.2d 210 (D.C. Cir. 1987) ................................................................................................ 28
Landmark Legal Found. v. EPA,
272 F. Supp. 2d 59 (D.D.C. 2003) ............................................................................................ 7
Lane v. Dist. of Columbia,
72 F. Supp. 3d 215 (D.D.C. 2014) ............................................................................................ 3
Larouche v. U.S. Dep’t of Justice,
No. 90-cv-2753, 1993 WL 388601 (D.D.C. June 25, 1993) .................................................. 24
Mead Data Ctr., Inc. v. U.S. Dep’t of the Air Force,
566 F.2d 242 (D.C. Cir. 1977) ................................................................................................. 9
Morley v. CIA,
508 F.3d 1108 (D.C. Cir. 2007) .............................................................................................. 21
Murphy v. FBI,
490 F. Supp. 1138 (D.D.C. 1980) ........................................................................................... 27
Nat’l Labor Relations Bd. v. Sears, Roebuck & Co.,
421 U.S. 132 (1975) ............................................................................................................... 13
Nat’l Sec. Counselors v. CIA,
960 F. Supp. 2d 101 (D.D.C. 2013) ........................................................................................ 26
New York Times Co. v. U.S. Dep’t of Justice,
No. 17-cv-00087 (CRC), 2017 WL 4772406 (D.D.C. Oct. 20, 2017) ............................. 11, 12
New York Times v. U.S. Dep’t of Justice,
756 F.3d 116 (2d Cir. 2014) ............................................................................................. 24, 27
New York Times Co. v. U.S. Dep’t of Def.,
499 F. Supp. 2d 501 (S.D.N.Y. 2007) .................................................................................... 19
Oglesby v. U.S. Dept. of the Army,
79 F.3d 1172 (D.C. Cir. 1996) ................................................................................................ 28

Quinon v. FBI,
86 F.3d 1222 (D.D.C. 1996) .................................................................................................. 27

Renegotiation Bd. v. Grumman Aircraft Eng’g Corp.,

421 U.S. 168 (1975) ................................................................................................... 17, 29, 30

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SafeCard Servs. Inc. v. SEC,

926 F.2d 1197 (D.C. Cir. 1991) .............................................................................................. 26
Sec. Financial Life Ins. Co. v. Dep’t of Treasury,
No. 03-cv-102, 2005 WL 839543 (D.D.C. Apr. 12, 2005) .............................................. 30-31
Sierra Club v. U.S. Dep’t of Interior,
384 F. Supp. 2d 1 (D.D.C. 2004) ............................................................................................ 29
Tax Analysts v. I.R.S.,
117 F.3d 607 (D.C. Cir. 1997) ................................................................................................ 14
Trans-Pac. Policing Agreement v. U.S. Customs Serv.,
No. 97-cv-2188, 1998 WL 34016806 (D.D.C. May 14, 1998) .............................................. 24

Trans Union LLC v. Fed. Trade Comm’n,

141 F. Supp. 2d 62 (D.D.C. 2001) ......................................................................................... 31
United States v. Philip Morris USA, Inc.,
218 F.R.D. 312 (D.D.C. 2003) ............................................................................................... 30

Constitutional Law
U.S. Const., Art. II § 2, cl. 1 ........................................................................................................ 15

Statute
5 U.S.C. § 552 ................................................................................................................................ 1

Regulation
Executive Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009) .................................................. 10-11

Other Authorities
President Donald J. Trump Announces Key Additions to the Office of the White House Counsel
(Mar. 7, 2017),
https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-key-
additions-office-white-house-counsel/ ...................................................................................... 5

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INTRODUCTION

This Freedom of Information Act (“FOIA”) case concerns documents analyzing or

explaining the President’s legal authority to launch U.S. military airstrikes against the Al Shayrat

airfield in Syria on April 6, 2017, including a legal memorandum providing predecisional legal

advice and recommendations to the President and his top national security advisors, an outline

drafted by the Department of Justice’s Office of Legal Counsel (“OLC”) prior to a briefing of the

Attorney General, and various documents containing proposed press guidance, talking points,

and recommended responses to questions from Congress about the legal basis for the strikes. As

demonstrated in the declarations submitted with Defendants’ opening brief, and the supplemental

declarations submitted herewith, these documents unequivocally constitute the very heart of

material that is shielded from disclosure by FOIA Exemption 5 under the presidential

communications, attorney-client, and deliberative process privileges. 5 U.S.C. § 552(b)(5).

In opposition, Plaintiff offers a kitchen-sink of claims that the documents are not

protected by the applicable privileges, none of which has merit. Plaintiff incorrectly contends

that Defendants have not provided sufficient information for the Court to determine the

applicability of the presidential communications privilege to the legal memorandum.

Defendants’ declarations, including a supplemental declaration by the Department of State

(“State”), however, unquestionably show that all three copies of the memorandum located by

Defendants were solicited, received, and coordinated by the National Security Council Legal

Adviser’s office as part of the presidential deliberative process preceding the April 6 strikes. As

such, the memorandum is a text book example of a document covered by the presidential

communications privilege.
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Equally unavailing is Plaintiff’s attack on the sufficiency of Defendants’ assertions of the

attorney-client privilege. Contrary to Plaintiff’s claim, Defendants have attested to the continued

confidentiality of each document withheld under the attorney-client privilege, including the legal

memorandum, which is a highly classified document to which access is specifically restricted by

law. Defendants further explained the importance of confidentiality to the legal advice at

issue—which related to highly sensitive matters of national security—and the potential harm to

the Executive’s attorney-client relationships should the documents be disclosed. These

assertions are more than adequate to meet Defendants’ burden.

Plaintiff’s claims that the deliberative process privilege is inapplicable also fail. The

withheld documents conveyed only advice and recommendations for the consideration of senior

Executive Branch decision-makers, and thus are the type of documents that the Court of Appeals

has found are not subject to the “working law” doctrine. Moreover, Defendants have adequately

demonstrated that the OLC outline and the talking points and other guidance documents, which

post-date the April 6 strikes, were predecisional to other deliberative processes.

Also unconvincing are Plaintiff’s arguments that Defendants have waived their

Exemption 5 claims through the Government’s so-called “publicity campaign” defending the

legality of the April 6 strikes. It is Plaintiff’s burden to demonstrate that prior public disclosures

have waived Exemption 5. And none of the materials it submits, which consist primarily of

general public comments attributed to government officials and an alleged leaked document

entitled “Basis for Using Force,” are sufficient to meet the requirements of waiver.

Finally, Plaintiff’s challenges to the sufficiency of Defendants’ Vaughn Index are

unpersuasive. Its objections ignore the now eight declarations Defendants have filed further

explaining the document descriptions provided in the Vaughn Index. It also attempts

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(incorrectly) to impose a burden on Defendants to show that the talking points and other

guidance documents were not “used” in communications with the public. But mere “use” of

talking point-type documents does not strip them of Exemption 5 protections and, in any event,

FOIA does not require Defendants to prove the negative.

Because Defendants have properly withheld documents pursuant to FOIA Exemption 5,

they have established that they are entitled to a grant of summary judgment in their favor.

ARGUMENT

I. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON ALL

CONCEDED ISSUES

At the outset, Defendants should be granted summary judgment on all issues not

contested by Plaintiff in its opposition brief. See Lane v. Dist. of Columbia, 72 F. Supp. 3d 215,

219 (D.D.C. 2014) (treating defendants’ argument in summary judgment motion as conceded

where plaintiff failed to address it in her response) (citing Antoine v. U.S. Bank Nat’l Ass’n, 821

F. Supp. 2d 1, 6 (D.D.C. 2010) (deeming an argument conceded when plaintiff did not respond

to it in opposition to a summary judgment motion)). In their motion for summary judgment,

Defendants argued that they had conducted adequate searches for responsive records, had

processed and properly released all reasonably segregable information from responsive records,

and had properly withheld responsive documents in full or in part on the basis of FOIA

Exemptions 1, 3, 5, 6, and 7(C). In its opposition, Plaintiff does not contest the adequacy of

Defendants’ searches, nor does it challenge the withholding of information under Exemptions 1,

3, 6, and 7(C), or Defendants’ segregability analysis for the vast majority of the documents.1

1
Plaintiff’s brief discusses segregability with respect to only the legal memorandum (Vaughn
Index, Docs. 1-3), alleging that the unclassified information in the memorandum—specifically,
the legal analysis—can be segregated from the classified information withheld under Exemptions
1 and 3, which Plaintiff does not challenge. See Pl.’s Mem. at 10. That would be true if only
3
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Pl.’s Mem. in Support of Pl.’s Cross Mot. for Summ. J. and Opp’n to Defs.’ Mot for Summ. J.

(“Pl. Mem.”) at 8, ECF No. 26-2 (confirming Plaintiff does not challenge Exemption 1 and 3

claims), 12 n.12 (confirming the same with respect to search adequacy), 15 n.15 (confirming the

same with respect to Exemption 6 and 7(C) claims). For the reasons set forth in their opening

brief, summary judgment should be granted to Defendants on all of these issues.

The only remaining issue in dispute, therefore, is whether Defendants properly withheld

information in the fifteen responsive documents at issue under FOIA Exemption 5. As explained

below, Plaintiff’s arguments are insufficient to avoid summary judgment on this claim, and

judgment should be entered in favor of Defendants.

II. DEFENDANTS PROPERLY WITHHELD INFORMATION PURSUANT TO

FOIA EXEMPTION 5

Defendants’ opening brief made clear that they properly withheld documents in full or in

part pursuant to FOIA Exemption 5 and the presidential communications, attorney-client, and

deliberative process privileges. See Defs.’ Mem. in Support of Mot. for Summ. J. (“Defs.’

Mem.”) at 13-26, ECF No. 24-1. Plaintiff’s challenges to those assertions of privilege are

expressly refuted by Defendants’ declarations and are legally incorrect.

A. Defendants Have Shown That The Legal Memorandum Is Protected By The

Presidential Communications Privilege

Plaintiff contends that Defendants have not demonstrated the applicability of the

presidential communications privilege to the legal memorandum (Vaughn Index, Doc. 1-3)

because the memorandum was solicited and received by the staff of the National Security

Exemptions 1 and 3 were at issue. Plaintiff ignores, however, that the memorandum is exempt
from disclosure in full under Exemption 5 pursuant to the presidential communications, attorney-
client, and deliberative process privileges. Importantly, the presidential communications
privilege “applies to documents in their entirety,” In re Sealed Case, 121 F.3d 729, 745 (D.C.
Cir. 1997); thus, as a matter of law, no information in the document is segregable.

4
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Council (“NSC”) Legal Adviser, which it argues has not been adequately identified.2 See Pl.’s

Mem. at 21, 22. Plaintiff’s claim that the NSC Legal Adviser’s staff is “not . . . a sufficiently

high-level White House official for the privilege to attach,” id. at 21, is contrary to well-settled

law. As the Court of Appeals recognized, the privilege extends not only to communications

authored or solicited and received by immediate White House advisers but also members of their

staff, “since in many instances advisers must rely on their staff to investigate an issue and

formulate the advice to be given to the President.” In re Sealed Case, 121 F.3d at 752. Notably,

Plaintiff does not contest that the NSC Legal Adviser is within the hierarchy of close Presidential

advisers to which the presidential communications privilege extends.3 See id.

Plaintiff’s claim that Defendants failed to specifically identify the NSC Legal Adviser

staff is immaterial. The applicability of the presidential communications privilege does not turn

on the identity of the presidential adviser’s staff members, but on the nature of the adviser’s

responsibilities. See id. Specifically, the privilege extends to those presidential advisers (or their

staff) within the White House who hold “broad and significant responsibility for investigating

and formulating the advice to be given the President.” Id. Here, Defendants’ declarations

confirm that the NSC Legal Adviser has such responsibility with respect to presidential decisions

concerning foreign policy and national security, including issues related to the President’s

2
Plaintiff does not contest that the legal memorandum relates to official matters of presidential
decision-making. See In re Sealed Case, 121 F.3d at 752.
3
In fact, the NSC Legal Adviser’s official White House title is Deputy Assistant to the President,
Deputy Counsel to the President for National Security Affairs, and Legal Adviser to the NSC.
See President Donald J. Trump Announces Key Additions to the Office of the White House
Counsel (Mar. 7, 2017) (“WHCO Staff Announcement”),
https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-key-
additions-office-white-house-counsel/ (last visited Jan. 9, 2018). As such, the NSC Legal
Adviser reports directly to both White House Counsel and the National Security Advisor, who
are indisputably immediate White House advisers. See In re Sealed Case, 121 F.3d at 752.
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authority to order military action. See Defs.’ Mem., Ex. 4, Declaration of Mark H. Herrington

(“Herrington Decl.”) ¶ 17, ECF No. 24-5; id., Ex. 5, Declaration of Eric F. Stein (“Stein Decl.”)

¶ 26, ECF No. 24-6. Indeed, the NSC Legal Adviser is the most senior legal counsel of the NSC,

which includes the President’s top national security advisors. See Herrington Decl. ¶ 15. The

record before the Court, including materials submitted by Plaintiff, demonstrates the integral role

the NSC played in the presidential deliberative process preceding the April 6 strikes. See Pl.’s

Mem., Ex. D at 4, ECF No. 26-6 (noting a statement of National Security Advisor confirming

that NSC principals group advised the President on military options against Syria); id., Ex. F at

1, ECF No. 26-8 (noting comments attributed to Defense Secretary generally explaining that

NSC “led” predecisional deliberations “to recommend diplomatic and military options to the

President”).

Nevertheless, Defendants have submitted a supplemental declaration further elaborating

on the applicability of the presidential communications privilege to the legal memorandum. See

Supplemental Declaration of Eric F. Stein, Director of the Office of Information Programs and

Services, U.S. Department of State (“Suppl. Stein Decl.”) ¶¶ 6-7 (attached hereto as Exhibit 1).

As Mr. Stein explains, the legal memorandum, which was prepared by an interagency group of

lawyers for the purpose of providing advice and recommendations to the President and senior

Executive Branch officials regarding the legal basis for contemplated military action in Syria,

was solicited and received by the Deputy NSC Legal Adviser.4 See id. ¶ 6 (noting also that

“additional members of the NSC Legal Adviser’s office were included in the communication [of

4
The Deputy NSC Legal Adviser’s full title is Special Assistant to the President, Senior
Associate Counsel to the President, and Deputy NSC Legal Adviser. See WHCO Staff
Announcement. Thus, just as the NSC Legal Adviser, the Deputy NSC Legal Adviser serves
two immediate White House senior advisors. See In re Sealed Case, 121 F.3d at 752.
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the legal memorandum], including the NSC Legal Adviser himself”); see also Defs.’ Mem., Ex.

2, Declaration of Paul P. Colborn (“Colborn Decl.”) ¶¶ 18, 23, ECF No. 24-3; Herrington Decl.

¶¶ 15, 17; Stein Decl. ¶¶ 20, 26. “Like the NSC Legal Adviser, the Deputy NSC Legal Adviser

has broad and significant responsibility for gathering information in the course of preparing

advice for potential presentation to the President in matters that implicate[] the President’s

decisions concerning foreign policy or national security.” Suppl. Stein Decl. ¶ 6. Indeed, the

Deputy NSC Legal Adviser not only solicited and received, but also “coordinated with the

interagency group of attorneys to create the document,” including “participating in interagency

deliberations, contributing to the drafting of the document, and finalizing the document.” Id. ¶ 7.

Defendants’ submissions, including the Supplemental Stein Declaration, thus demonstrate that

the memorandum is squarely protected by the presidential communications privilege. See In re

Sealed, 121 F.3d at 752.

Plaintiff’s citation to Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108 (D.C. Cir.

2004), does not support its contention that a presidential adviser’s staff must be more specifically

identified. See Pl.’s Mem. at 22. To the contrary, Judicial Watch reaffirmed the standard

articulated in In re Sealed Case, which focuses not on the identity of the official, but on the kind

of advisory authority held. Judicial Watch, 365 F.2d at 1114; see also id. at 1110 n.1

(reaffirming “definitional analysis” in In re Sealed Case). Accordingly, Defendants are not

required to name or more specifically identify the particular staff involved with communications

concerning the legal memorandum. Nothing in the FOIA requires Defendants to volunteer

unnecessary information simply to satisfy a FOIA requester’s curiosity. See, e.g., Landmark

Legal Found. v. EPA, 272 F. Supp. 2d 59, 64 (D.D.C. 2003) (an agency is not required to

“answer questions disguised as a FOIA request” (citation omitted)).

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Plaintiff’s claim that Defendants have not adequately justified the application of the

presidential communications privilege to the prior draft version of the legal memorandum

located by the Department of Defense (“DOD”) (Vaughn Index, Doc. 3) also fails. The

Herrington Declaration specifically states that DOD’s version of the legal memorandum was

“solicited and received” by the NSC Legal Adviser’s staff. See Herrington Decl. ¶ 15 (referring

to Vaughn Index, Doc. 3 (DOD 6-12)). The Supplemental Stein Declaration further explains

that, given his role coordinating the interagency process, “the Deputy NSC Legal Adviser and

other members of the NSC Legal Adviser’s office, including the NSC Legal Adviser, “received

prior draft versions of the document.” Suppl. Stein Decl. ¶ 7. Because the NSC Legal Adviser’s

office was involved in preparing the legal memorandum, including prior drafts, DOD’s version

of the legal memorandum is not the type of internal agency document that has been found not to

be protected by the presidential communications privilege.5 See Judicial Watch, 365 F.3d at

1114–15, 1121 (declining to extend presidential communications privilege to documents

prepared and circulated only within the Justice Department).

Accordingly, as numerous courts have found with respect to similar memoranda,

Defendants have shown that the presidential communications privilege applies to the legal

memorandum, and thus it is properly withheld pursuant to Exemption 5. See Defs.’ Mem. at 15-

16 (citing cases).

5
Even if the document were not protected by the presidential communications privilege, the
prior draft legal memorandum would be protected by the deliberative process privilege, and thus
still properly exempt from disclosure under Exemption 5. See Judicial Watch, 365 F.3d at 1114–
15, 1121 (explaining that with internal agency documents “the ultimate goal of protecting the . . .
President’s . . . access to candid advice is achieved under the deliberative process privilege for
those working documents that never make their way to the Office of the President.”).

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B. Defendants Properly Withheld Documents Protected By The Attorney-Client

Privilege

Plaintiff also claims that Defendants have failed to establish that the legal memorandum

(Vaughn Index, Docs. 1-3), the OLC outline (id., Doc. 4), and State’s recommended responses to

questions from Congress (id., Docs. 14-15) are protected by the attorney-client privilege because

Defendants allegedly provided “no more than conclusory assertions that these documents have

been kept confidential . . . .”6 Pl.’s Mem. at 15. Plaintiff’s argument attempts to divorce isolated

sentences in Defendants’ declarations from the context of the withheld documents themselves

and the nature of the decision at issue—i.e., whether to conduct military action against Syria.

Contrary to Plaintiff’s claim, Defendants sufficiently demonstrated the confidentiality of

the attorney-client communications reflected in the documents at issue. See Mead Data Ctr., Inc.

v. U.S. Dep’t of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977); see Colborn Decl. ¶ 18 (legal

memorandum conveyed confidential legal advice to the NSC Legal Adviser by interagency

attorneys, based on confidential information provided for the purposes of obtaining such advice);

id. ¶¶ 19, 25 (OLC outline contained confidential legal advice for the Attorney General, based on

the same confidential information, prepared by OLC attorneys, including the Acting Assistant

Attorney General of OLC (“Acting AAG”)); Stein Decl. ¶ 24 (proposed responses to questions

from Congress consisted of confidential legal advice prepared by State Department attorneys for

Department officials). With respect to each document at issue, Defendants attested that, to their

knowledge, the document was intended to be kept confidential and that confidentiality has been

maintained. See Colborn Decl. ¶ 25; Second Declaration of Paul P. Colborn, Special Counsel in

6
Plaintiff does not dispute that the information in these documents relates to “a legal matter for
which the client has sought professional advice,” Mead Data Ctr., 566 F.2d at 252. See also
Pl.’s Mem. at 16.
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the Office of Legal Counsel, U.S. Department of Justice (“Second Colborn Decl.”) ¶ 2 (attached

hereto as Exhibit 2);7 Herrington Decl. ¶ 16; Stein Decl. ¶ 24.

Indeed, the legal advice at issue in the legal memorandum and OLC outline concerned

highly sensitive matters involving national security and foreign policy, and, in particular, a

military action that was at the time under consideration. The expectation of confidentiality in

these areas is of particular importance and is essential to protecting the Executive’s decision-

making process and, when the legal advice is ultimately provided for the President or his senior

advisers, the President’s ability to effectively discharge his Constitutional duties. See Colborn

Decl. ¶ 3 (“One important reason OLC legal advice often needs to stay confidential is that it is

part of a larger deliberative process—a process that itself requires confidentiality to be

effective”); see id. ¶ 4 (noting that OLC advice frequently pertains to “very difficult and

unsettled issues of law” “in connection with highly complex and sensitive activities of the

Executive Branch”); see id. ¶ 7. Disclosure of either the client confidences provided in the

course of seeking legal advice or the legal advice itself would inhibit the Executive’s

deliberative process and the relationship of trust between government clients and attorneys. See

id. ¶¶ 5-6. Moreover, the legal memorandum is a highly classified document, see Pl.’s Mem.,

Ex. 7, Declaration of Patricia Gaviria (“Gaviria Decl.”) ¶ 19, ECF No. 24-8, which, by

definition, requires that it be kept confidential. See Executive Order 13526 § 4.1(g), 75 Fed.

7
Plaintiff argues that OLC’s declaration did not include the same statement confirming the
confidentiality of the legal memorandum as it provided for the OLC outline, suggesting that the
memorandum’s confidentiality “was not maintained.” Pl.’s Mem. at 17 (emphasis in original).
This is not a reasonable inference given the Colborn Declaration’s lengthy discussion of the
confidentiality of OLC’s legal advice, see Colborn Decl. ¶¶ 3-7, and statement that, “[t]o [his]
knowledge, the documents have not been previously disclosed publicly,” id. ¶ 31. Nevertheless,
Mr. Colborn has submitted a supplemental declaration expressly clarifying that, to OLC’s
knowledge, the confidentiality of the legal memorandum has been maintained. See Second
Colborn Decl. ¶ 2.
10
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Reg. 707 (Dec. 29, 2009) (establishing procedures for safeguarding classified national security

information); id. § 4.1(a) (restricting access to such information to those who are both cleared

for access and have a “need-to-know the information”); see New York Times Co. v. DOJ, No.

17-cv-00087 (CRC), 2017 WL 4772406, at *4 (D.D.C. Oct. 20, 2017) (finding fact that OLC

opinion was classified undercut plaintiff’s argument that it had not been kept confidential).

Against this backdrop, the declarants’ assertions that the documents at issue were intended to be

and have remained confidential is far from conclusory.

The decision in Cuban v. SEC does not compel a contrary conclusion. Cuban merely

reaffirms that “[t]he attorney-client privilege is not applicable just because the defendant states

that it applies,” and thus “[a] blanket assertion of the privilege will not suffice.” Cuban, 744 F.

Supp. 2d at 79. Cuban does not establish that Defendants’ burden can be met only by, for

example, explaining precisely what steps were taken to ensure confidentiality or identifying

exactly who had access to the documents. See Pl.’s Mem. at 17. Rather, a defendant must

provide sufficient information from which the Court can assess whether the attorney-client

privilege was properly asserted. Cuban, 744 F. Supp. 2d at 79. Defendants have met that

burden here, and other courts have held that similar assertions regarding the confidentiality of

attorney-client privileged documents are sufficient. See, e.g., Judicial Watch, 245 F. Supp. 3d

at 33-34 (showing that defendants’ declarations demonstrated applicability of attorney-client

privilege where, as here, they confirmed that attorneys authored the legal memoranda at issue,

discussed the subject matter and a broad overview of each memorandum, asserted that the

confidentiality of the memoranda had been maintained, and explained the harm that would be

caused by disclosure); New York Times, 2017 WL 4772406, at *2 (finding equivalent assertions

11
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in another declaration of Mr. Colborn to establish that a particular OLC opinion was a

“quintessential example of the sort of document that falls within the attorney-client privilege”).

Finally, Plaintiff argues that State has not met its burden of showing that the

confidentiality of the two proposed guidance documents recommending responses to questions

from Congress (Vaughn Index, Docs. 14-15) has been maintained because, as Plaintiff

speculates, it is “reasonable to believe that at least some of that information . . . was in fact

conveyed to Congress” given the nature of the documents. Pl.’s Mem. at 19. Plaintiff’s

suggestion that clients cannot have privileged communications with their attorneys about how to

respond to press or congressional inquiries—i.e., information “specifically designed to be shared

with third parties”—is incorrect. Id. Numerous judges in this district have found that the

attorney-client privilege applies to such documents. See Defs.’ Mem. at 19 (citing cases); see

also Judicial Watch, Inc. v. U.S. Dep’t of Treasury, 802 F. Supp. 2d 185, 200, 202 (D.D.C. 2011)

(finding draft talking points protected by attorney-client privilege); Ctr. For Medicare Advocacy,

Inc. v. U.S. Dep’t of Health & Human Servs., 577 F. Supp. 2d 221, 238 (D.D.C. 2008) (same).

Moreover, Plaintiff’s conclusion does not follow the premise, as the documents include only

hypothetical questions Congress may or may not have asked and proposed responses that the

State Department officials were free to adopt or reject. See Stein Decl. ¶ 22. Regardless, the

Supplemental Stein Declaration confirms that the information in these documents was not in fact

deployed by State Department officials in the congressional hearings for which the documents

were prepared.8 See Suppl. Stein Decl. ¶ 11.

8
Defendants address Plaintiff’s additional claims relating to alleged waiver of the attorney-client
privilege in infra, Section II.D.2.

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Accordingly, Defendants properly withheld in full the legal memorandum, OLC outline,

and recommended responses to questions from Congress under Exemption 5 and the attorney-

client privilege.

C. Defendants Properly Withheld Documents Protected By The Deliberative

Process Privilege

Plaintiff challenges Defendants’ assertion of the deliberative process privilege to

withhold information in each responsive record for two reasons. See Pl.’s Mem. at 23. First,

Plaintiff argues that the withheld information constitutes the “working law” of the Executive

Branch and thus must be disclosed. Id. Second, Plaintiff argues that the OLC outline (Vaughn

Index, Doc. 4) and the documents relating to proposed press guidance, talking points, and

recommended responses to questions from Congress (Vaughn Index, Docs. 5-15) are neither

predecisional nor deliberative. Id. at 25. Both of these objections lack merit.

1. The Withheld Documents Are Not “Working Law”

Plaintiff misapplies the “working law” doctrine, which requires only that agencies must

disclose “the ‘reasons which [supplied] the basis for an agency policy actually adopted.” Elec.

Frontier Found. (“EFF”) v. DOJ, 739 F.3d 1, 7 (D.C. Cir. 2014) (quoting Nat’l Labor Relations

Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 152-53 (1975) (alteration in original)). In other

words, this doctrine stands for the proposition that materials must be disclosed if they constitute

“a body of ‘secret law, used by [the agency] in the discharge of its regulatory duties and in its

dealings with the public.” Id. “Therefore, an agency must disclose ‘binding agency opinions

and interpretations’ that the agency ‘actually applies in cases before it.’” Id.; see also Coastal

States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 869 (D.C. Cir. 1980) (requiring disclosure of

“opinions [that] were routinely used by agency staff as guidance in conducting their audits, and

were retained and referred to as precedent” by the agency “in discharging its regulatory

13
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responsibilities”); see also, e.g., Tax Analysts v. I.R.S., 117 F.3d 607, 608, 619 (D.C. Cir. 1997)

(requiring disclosure of “Field Service Advice Memoranda” issued by the Chief Counsel of the

IRS, which were “applied routinely as the government’s legal position in its dealings with

taxpayers”). As the Court of Appeals explained in EFF, the working law doctrine does not cover

“legal memoranda that concern the advisability of a particular policy, but do not authoritatively

state or determine the agency’s policy.” EFF, 739 F.3d at 8. “‘[T]here can be no doubt that such

legal advice, given in the form of intra-agency memoranda prior to any agency decision on the

issues involved, fits exactly within the deliberative process rationale for Exemption 5.’” Id. at 8-

9 (quoting Brinton v. Dep’t of State, 636 F.2d 600, 604 (D.C. Cir. 1980) (concerning legal advice

provided by State Department’s Legal Adviser “‘on issues involving’ affairs in the Middle

East”)).

At issue in EFF was an OLC Opinion provided to FBI regarding the permissibility of

certain investigative tactics. Id. at 5. The Court of Appeals in EFF explained that “[b]ecause

OLC cannot speak authoritatively on the FBI’s policy, the OLC Opinion differs from

memoranda [the Court had] found to constitute the ‘working law’ of an agency.” Id. at 9. In

those cases, “the agency was required to disclose a document that represented a conclusive or

authoritative statement of its policy, usually a higher authority instructing a subordinate on how

the agency’s general policy applies to a particular case, or a document that determined policy or

applied established policy.” Id. EFF held that because OLC is “not authorized to make

decisions about the FBI’s investigative policy, . . . the OLC Opinion cannot be an authoritative

statement of the agency’s policy.” Id. Indeed, “[e]ven if the OLC Opinion describes the legal

parameters of what the FBI is permitted to do, it does not state or determine the FBI’s policy.

The FBI was free to decline to adopt the investigative tactics deemed legally permissible in the

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OLC Opinion.” Id. at 10; see Ball v. Bd. of Govs. of the Fed. Reserve Sys., 87 F. Supp. 3d 33, 49

(D.D.C. 2015) (finding memorandum prepared by staff for the Board of Governors of the

Federal Reserve analyzing the Board’s legal authority to extend a loan and providing the staff’s

recommendations and opinions did not constitute the working law of the Board).

These factors compel the same conclusion here. The withheld documents contain advice

and recommendations prepared for the purpose of advising the President and senior Executive

Branch decision-makers during the course of deliberative processes preceding their decisions.

See, e.g., Defs.’ Mem., Ex. 1, Declaration of Daniel R. Castellano (“Castellano Decl.”) ¶¶ 37-41,

ECF No. 24-2; Colborn Decl. ¶¶ 21, 24; Herrington Decl. ¶¶ 14-15; Stein Decl. ¶¶ 20-22. Just as

OLC lacked the authority to establish FBI policy in EFF, see 739 F.3d at 7–8, so too did the

inter-agency group of attorneys lack authority to make a policy decision on military action in

Syria. That authority rested exclusively with the President. See U.S. Const., Art. II § 2, cl. 1.

And just as FBI was free to decline to adopt the investigative tactics deemed legally permissible

by OLC, see EFF, 739 F.3d at 8-10, so too was the President free to reject the analysis and

recommendations set forth in the legal memorandum. The same goes for the OLC outline

prepared for the Acting AAG to provide advice to his superior, the Attorney General, as well as

the recommended talking points and other guidance documents prepared for the use of agency

officials in determining their communication strategies with the press and Congress.9 In each

instance, the withheld documents did not constitute a “conclusive or authoritative statement of . .

. policy,” nor did it “determine[] policy or appl[y] established policy.” EFF, 739 F.3d at 9; see

Ball, 87 F. Supp. 3d at 50. They convey or contain only advice and recommendations.

9
Plaintiff has not identified a single case in which a court found as “working law” a document
containing talking points or guidance for responding to media or congressional inquiries.
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Plaintiff’s claim that the withheld documents are distinguishable from the OLC opinion

in EFF because they constitute “a well-developed body of Executive Branch law” established

“[o]ver many years,” as opposed to OLC’s “one-off legal advice” in EFF, is unavailing. Pl.’s

Mem. at 24. The legal memorandum (and other withheld documents) does not set forth an

“authoritative statement[]” of the “Executive Branch’s legal policy on when the President may

use military force,” id. at 25, like the memoranda courts have found to be working law, see, e.g.,

Coastal States, 617 F.2d at 869. Instead, like the OLC opinion in EFF, it provided advice on the

legal basis for a particular military action and recommended policy action based upon the

analysis. See EFF, 739 F.3d at 10 (“[The OLC Opinion] merely examines policy options

available to the FBI.”). That Executive Branch lawyers have advised the President in the past on

his authority to order military action is immaterial. The decisive factor in EFF’s analysis was

not whether the conclusions in the OLC opinion at issue were based on “intricate theories” of

law, see Pl.’s Mem. at 24, or the number of times OLC had advised FBI on the issue in the past,

it was whether OLC had “the authority to establish the ‘working law’ of the FBI.” EFF, 739

F.3d at 8. It did not, and neither do the agency lawyers who drafted withheld documents have

that authority here.

Plaintiff also attempts to distinguish EFF by pointing to the fact that, here, “the Executive

Branch presumably has relied on the agency lawyers’ conclusions . . . in carrying out the

strikes.” Pl.’s Mem. at 25. As EFF explained, however, advice offered for the consideration of

agency decision-makers “is not the law of an agency unless the agency adopts it,” EFF, 739 F.3d

at 8, and adoption occurs only when an “agency itself publicly invoke[s] the reasoning of the

[withheld document] to justify its . . . position,” id. at 11 (emphasis in original). There is no

evidence of adoption here, see, e.g., Colborn Decl. ¶ 30, and Plaintiff does not attempt to make a

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showing. Plaintiff only speculates that the President relied on the legal memorandum’s

conclusion, which, even if proven, would be insufficient. See Renegotiation Bd. v. Grumman

Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975) (finding that reports and recommendations do

not lose protection from disclosure under Exemption 5 merely because an agency agrees with a

report’s conclusion).

2. The OLC Outline And Documents Relating To Proposed Press Guidance,

Talking Points, And Recommended Responses To Congressional Questions
Are Predecisional And Deliberative

To come within the scope of the deliberative process privilege, a document must be both

predecisional and deliberative. Coastal States, 617 F.2d at 866. Plaintiff claims that the OLC

outline (Vaughn Index, Doc. 4) and the documents and emails containing proposed press

guidance, talking points, and recommended responses to questions from Congress (id., Docs. 5-

15) are postdecisional because they were “created after the strikes . . . .” Pl.’s Mem. at 25. But

the April 6 strikes are not the “operative decision,” id. at 26, to which these documents relate.

As explained in Defendants’ declarations, the OLC outline was created for use by the

Acting AAG in preparation for an oral briefing to the Attorney General regarding the legal basis

for the April 6 strike and, thus, “the document is predecisional to what the Acting AAG of OLC

would ultimately advise the Attorney General” in that briefing. Colborn Decl. ¶ 24. And, to the

extent he orally conveyed material in the document to the Attorney General that communication

was “predecisional to any ultimate decision the Attorney General would then make in advising

the President.” Id. The documents concerning proposed press guidance, talking points, and

recommended responses to questions from Congress are predecisional to Defendants’ decisions

on strategies for engaging with and to their ultimate communications to the press and Congress.

See Castellano Decl. ¶¶ 37, 41-42; Herrington Decl. ¶ 14; Suppl. Stein Decl. ¶ 10. It is not the

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subject matter of these documents that defines whether they are predecisional, but rather their

role in the decision-making process to which they relate. See Judicial Watch, Inc. v. Export-

Import Bank, 108 F. Supp. 2d 19, 35 (D.D.C. 2000) (“To establish that a document is

predecisional, the agency need . . . merely establish what deliberative process is involved, and

the role [] that the documents at issue played in that process.”). Here, the processes for deciding

how to advise the Attorney General and what to say to the media and Congress are separate and

apart from the decision to conduct the April 6 strikes.

Indeed, Plaintiff’s contention that documents pertaining to past agency actions are not

protected by the deliberative process privilege was specifically rejected in Competitive

Enterprise Inst. v. EPA, 12 F. Supp. 3d 100, 118 (D.D.C. 2014). As Judge Boasberg noted,

“[t]he precedent, unsurprisingly, does not support such a broad position.” Id. Numerous cases

have found Exemption 5 to cover briefing materials, talking points, and recommendations for

how to respond to media and congressional inquiries regarding prior agency actions, like those at

issue here. See Defs.’ Mem. at 24-26 (citing cases).

Plaintiff attempts to distinguish this case from the weight of authority in this district by

claiming that only “‘drafts’ or ‘discussions’ that are part of a process to formulate a press

strategy” are protected from disclosure, Pl.’s Mem. at 27, but that argument is both factually and

legally incorrect. First, many of the talking points and other guidance documents are “drafts”

and “discussions” reflecting the consultative process through which the recommendations and

advice were developed. See Vaughn Index, Docs. 5-6 (described as “substantially similar but not

identical to the press guidance contained in Doc # 9”); 7 (described as “prior draft version of Doc

# 5-6”); 10 (described as “substantially similar but not identical proposed talking points

contained in Doc # 9”); 13 (described as containing “provisional proposed press guidance”); see

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also Stein Decl. ¶ 21 (describing Doc. 5 as “draft proposed press guidance”); ¶ 22 (describing

Docs. 14-15 as “draft proposed guidance”). In fact, three of the withheld documents are a

succession of internal Department of Justice (“DOJ”) emails pertaining to proposed press

guidance and talking points being “updated” throughout the morning following the April 6

strikes. See Vaughn Index, Doc. 11 (email entitled “UPDATED NSC SYRIA GUIDANCE AS

OF 04/07/2017 10:46AM”); 12 (email entitled “NSC SYRIA Update and Reaction Compilation

4/7/2017 11:47AM”); 13 (email entitled “Re: Additional Updated NSC Guidance”). Regardless,

even “final” versions of such materials are subject to the deliberative process privilege to the

extent they consist of recommendations or proposals for the agency’s communications strategy.

See Defs.’ Mem. at 25-26 (citing cases); see also, Am. Civil Liberties Union (“ACLU”) v. U.S.

Dep’t of Homeland Security, 738 F. Supp. 2d at 112; Judicial Watch v. Consumer Fin. Prot.

Bureau, 60 F. Supp. 3d 1, 10 (D.D.C. 2014).10 Defendants’ declarations provide ample proof

that these materials provided just such advice. See Castellano Decl. ¶¶ 37-41; Herrington Decl. ¶

14; Stein Decl. ¶ 22.

Plaintiff’s disbelief that a briefing of the Attorney General after the April 6 strike could

be for any purpose other than “explain[ing] the legal policy upon which the Executive Branch

had already acted” is equally meritless. Pl.’s Mem. at 27. Indeed, the Second Colborn

Declaration clarifies that in addition to preparing the Acting AAG to brief the Attorney General

10
Rather than address these cases, and the numerous other similar decisions cited by Defendants,
Plaintiff instead relies on a single case from the United States District Court for the Southern
District of New York. See Pl’s. Mem. at 28 (citing New York Times, 499 F. Supp. 2d at 514-15).
New York Times has not been followed by judges in this district, see Comm. on Gov’t Oversight
& Reform, U.S. House of Reps. v. Lynch, 156 F. Supp. 3d 101, 112 & n.8 (D.D.C. 2016) (finding
internal DOJ documents regarding how to respond to press and congressional inquiries subject to
deliberative process privilege, notwithstanding plaintiff’s reliance on New York Times), and
conflicts with the weight of authority in this district, see Defs.’ Mem. at 24-26.
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with respect to potential future military action, the OLC outline also “restated aspects of the

predecisional legal advice provided on April 6 by OLC and other government lawyers to the

NSC Legal Adviser” in the legal memorandum, in case it was necessary to remind the Attorney

General about the details of that advice. Second Colborn Decl. ¶ 3. As Plaintiff acknowledges,

“[p]ost–decisional documents properly fall under the deliberative process privilege when they

recount or reflect pre-decisional deliberations.” Judicial Watch, Inc. v. Dep’t of the Treasury,

796 F. Supp. 2d 13, 31 (D.D.C. 2011); see also Citizens for Responsibility & Ethics in Wash. v.

DOJ, 658 F. Supp. 2d 217, 234 (D.D.C. 2009).

Nor is Plaintiff correct that “[a]t a minimum” Defendants must “identify what decision

the [Acting AAG] was advising the Attorney General about on or after April 7.” Pl.’s Mem. at

27. As the Supreme Court has held, an agency need not “identify a specific decision in

connection with which a memorandum is prepared.” See Access Reports v. DOJ, 926 F.2d 1192,

1196 (D.C. Cir. 1991) (holding that the “exemption does not turn on the ability of an agency to

identify a specific decision in connection with which a memorandum is prepared” because “[a]ny

requirement of a specific decision after the creation of the document would defeat the purpose of

the exemption.” (citation omitted)); EFF v. DOJ, No. 10-641, 2012 WL 3900737, at *12-14

(D.D.C. Sept. 10, 2012) (withheld briefing materials need only have contributed to a decision-

making process, not necessarily a particular decision). Nevertheless, as explained above, the

Colborn Declaration does identify the decision-making processes to which the OLC outline

contributed. See Colborn Decl. ¶¶ 19, 24. It also provides ample facts showing that the OLC

outline—a document created for use by the Acting AAG to prepare himself for a subsequent oral

briefing of his superior, the Attorney General, where he provided legal advice for the Attorney

General’s consideration—is both predecisional and deliberative, and thus protected from

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disclosure by the deliberative process privilege. 11 Id.; see Coastal States, 617 F.2d at 868 (“The

identity of the parties to the memorandum is important; a document from a subordinate to a

superior official is more likely to be predecisional, while a document moving in the opposite

direction is more likely to contain instructions to staff explaining the reasons for a decision

already made.”).

Accordingly, Defendants properly withheld in full or in part information in each

responsive document under Exemption 5 and the deliberative process privilege.

D. Plaintiff Has Not Established That Defendants Have Waived Their FOIA
Exemption 5 Claims

Plaintiff contends that Defendants have waived all privileges applicable to the withheld

documents through various statements attributed to public officials about the April 6 strikes, as

well as through an unofficial disclosure of a document entitled “Basis for Using Force.” Pl.’s

Mem. at 18-19, 29-30. But Plaintiff fails to meet, let alone cite, the proper standard for finding

that an agency waived a FOIA exemption through a prior public disclosure. Nor has it shown

that in camera review is necessary.

1. Defendants Have Not Waived The Presidential Communications And

Deliberative Process Privileges

To prove that waiver has occurred through public disclosure, Plaintiff must show that the

information in the withheld documents (1) is “as specific as the information previously

11
Morley v. CIA, 508 F.3d 1108, 1127 (D.C. Cir. 2007), does not hold to the contrary. In
Morley, the Court of Appeals found that CIA had not demonstrated that the deliberative process
privilege applied to two documents where it provided only “minimal information” to allow the
court to determine if withholding was proper, including “no hint of a final agency policy its
‘predecisional’ material preceded” or even the identities of the author and recipient of one
document, “giving the court little indication about the nature of the records withheld.” Id. As
demonstrated above, the Colborn Declaration provides that precise information.

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released;” (2) “match[es] the information previously disclosed;” and (3) “already ha[s] been

made public through an official and documented disclosure.” Fitzgibbon v. CIA, 911 F.2d 755,

765 (D.C. Cir. 1990); see Afshar v. Dep’t of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983)

(explaining that the burden is on the requester to establish that specific record in public domain

duplicates that being withheld). As the Court of Appeals has held, speculation that information

in the withheld documents must have been disclosed based on the fact that an agency has

publicly discussed related information does not satisfy Plaintiff’s burden. See Assassination

Archives & Research Ctr. v. CIA (“AARC”), 334 F.3d 55, 59-60 (D.C. Cir. 2003) (rejecting

argument that “at least some information” contained in withheld CIA compendium on Cuban

personalities was previously disclosed because CIA had released biographies of several Cuban

operatives; “it may be that some information disclosed . . . is included in the Compendium. But

AARC must show that information duplicates the contents of the Compendium.” (emphasis in

original)).

Speculation is all Plaintiff has offered here. Plaintiff has not shown any nexus between

the withheld information and any official public statements, nor has it demonstrated that the

withheld information exactly matches these public statements. See Davis v. DOJ, 968 F.2d

1276, 1280 (D.C. Cir. 1992) (explaining that to prove waiver the requester must point to

“‘specific’ information identical to that being withheld”); see also Edmonds v. FBI, 272 F. Supp.

2d 35, 49 (D.D.C. 2003) (finding no waiver where information being withheld was not

“identical” to the quoted public statements). Indeed, a close look at the materials Plaintiff

submits reveals only the President’s April 8, 2017 notice to Congress and brief, general

comments attributed to various government officials about the April 6 strikes, some (but not all)

of which address the legal authority for the strike in general terms. See, e.g., Pl.’s Mem., Ex. C

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at 15, ECF No. 26-5 (briefing transcript including five-line response of White House Press

Secretary relating to the President’s Article II authority); id., Ex. E at 3, ECF No. 26-7 (article

highlighting brevity of Secretary of State’s one-sentence comment at a World War II memorial

ceremony, which did not mention the April 6 strikes); id., Ex. G at 2, ECF No. 26-9 (article

summarizing interview of UN Ambassador in which she does not specifically comment on legal

basis for the strikes). General public discussion by Executive Branch officials about the April 6

strikes and their position that such military action was lawful, however, does not establish waiver

with respect to the specific information or documents withheld.12 See ACLU v. CIA, 109 F.

Supp. 3d 220, 239 (D.D.C. 2015) (rejecting plaintiff’s argument that because the government

officially acknowledged basic facts about its targeted lethal force program and the program’s

legal basis it waived any FOIA exemptions with respect to withheld legal memoranda pertaining

to that subject).

The “Basis for Using Force” document also cannot establish waiver because Plaintiff has

not shown that the document was officially disclosed.13 See Fitzgibbon, 911 F.2d at 765.

Indeed, Plaintiff’s own exhibits show otherwise. Specifically, they show that (a) the document

12
Notably, in its Motion for a Preliminary Injunction, Plaintiff put a decidedly different spin on
many of the same documents on which it now relies to support a waiver argument. For example,
Plaintiff argued that the President’s April 8 letter to Congress (Pl.’s Mem. at Ex. B, ECF No. 26-
4) was not equivalent to a legal memorandum and was “devoid of legal analysis.” Pl.’s Mot. for
a Prelim. Injunction (“PI Mot.”) at 4, ECF No. 3-1. It further attacked the alleged lack of detail
and inconsistency of statements made by the White House Press Secretary, Secretary of State,
and Defense Secretary (Pl.’s Mem. at Exs. C, E-F). See PI Mot. at 4-5. As Plaintiff noted in that
motion, “[t]he Administration has not released any formal or informal legal opinion setting forth
its justification for the Syria strikes,” id. at 4, nor has DOJ “issued any public or official
statement explaining the legal justification for the actions in Syria,” id. at 5. These concessions,
if not fatal to, severely undermine Plaintiff’s waiver claims.
13
The Government has neither confirmed nor denied the authenticity of this document, and does
not do so here.
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was released in a post by a private citizen on a private online forum, (b) the post’s author lacks

personal knowledge about the document’s nature or origin, and (c) the only purported

authentication of the document was provided by a New York Times reporter. See Pl.’s Mem.,

Ex. I at 1, ECF No. 26-11; see also id., Ex. J at 1, ECF No. 26-12. Where disclosure is

unauthorized or a result of a “leak,” courts have ruled that no waiver has occurred. See, e.g.,

Canning v. U.S. Dep’t of State, 134 F. Supp. 3d 490, 503-04 (D.D.C. 2015); Trans-Pac. Policing

Agreement v. U.S. Customs Serv., No. 97-cv-2188, 1998 WL 34016806, at *4 (D.D.C. May 14,

1998); Larouche v. DOJ, No. 90-cv-2753, 1993 WL 388601, at *7 (D.D.C. June 25, 1993).

2. Defendants Have Not Waived The Attorney-Client Privilege

Relying on the same public sources, Plaintiff argues that Defendants have waived the

attorney-client privilege over the legal memorandum, OLC outline, and recommended

responses to questions from Congress. See Vaughn Index, Docs. 1-4, 14-15. The single case

Plaintiff cites to support its argument, however, is a Second Circuit case involving materially

distinguishable circumstances. See Pl.’s Mem. at 18 (citing New York Times v. DOJ, 756 F.3d

116 (2d Cir. 2014)). In New York Times, the Second Circuit found that DOJ waived the

attorney-client and deliberative process privileges for an OLC Memorandum analyzing the

lawfulness of the targeted killing of suspected terrorists. New York Times, 756 F.3d at 116. The

court’s decision was grounded on three findings. First, New York Times found that Executive

officials had expressly adopted the advice of the OLC Memorandum. See id. at 115 (quoting

CIA Director John Brennan’s congressional testimony that “[t]he Office of Legal Counsel

advice establishes the legal boundaries within which we can operate.”). Second, the

Government officially released a related DOJ White Paper (after it was leaked to the press),

which contained “a detailed analysis of nearly all the legal reasoning contained in the OLC–

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DOD Memorandum.” Id. at 116. Third, the Attorney General publicly acknowledged the close

relationship between the officially disclosed DOJ White Paper and the withheld OLC

Memorandum. Id. Having adopted the legal advice contained in the OLC Memorandum and

officially disclosed a document that provided “nearly all the [same] legal reasoning,” id., New

York Times held that the Government could not publicly invoke the OLC Memorandum and at

the same time “shield it from public view,” id. at 116-17.

None of these factors is present in this matter. As explained above, Plaintiff has not

presented any public statement by a government official or publicly disclosed document

concerning the lawfulness of the April 6 strikes that expressly adopts, incorporates, or even

references any confidential legal advice contained in the withheld documents at issue here. Nor

is there any evidence in the record that the Government officially disclosed or authenticated the

“Basis for Using Force” document, or publicly acknowledged that it overlaps with confidential

legal advice in the withheld documents.

Contrary to Plaintiff’s suggestion, New York Times did not hold that general public

statements by government officials that certain government action is legal is sufficient to waive

the attorney-client privilege. Id. at 114-15 (“not[ing] initially,” in considering the question of

waiver, statements of senior Government officials discussing the lawfulness of targeted killings,

but ultimately finding that the statements established only “the context” for evaluating the

officially disclosed DOJ White Paper). There is a fundamental distinction between an

explanation of the rationale or basis for the Executive’s decision to take a particular action,

which would not be privileged, and legal advice received prior to making a decision, which is

privileged. See Colborn Decl. ¶ 8. As at least one judge in this district has recognized, the

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disclosure of a conclusion based on legal advice does not constitute a disclosure of the legal

advice itself. Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 199 (D.D.C. 2013).

In sum, none of the sources cited by Plaintiff establish that Defendants have waived the

attorney-client privilege or undermine Defendants’ sworn declarations, which are entitled to a

presumption of good faith, see SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.

1991), that the legal memorandum, OLC outline, and recommended responses to questions from

Congress have remained confidential.

3. In Camera Review Is Unnecessary

Plaintiff’s speculative waiver claims likewise fail to support its request for this Court to

conduct in camera review of the withheld documents. See Pl.’s Mem. at 19, 30. Where, as here,

an agency’s public affidavits “provide specific information sufficient to place the documents

within [an] exemption category,” and “this information is not contradicted in the record,” nor is

there “evidence in the record of agency bad faith,” in camera review of withheld information is

not necessary or appropriate. ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 626 (D.C. Cir. 2011);

see Ctr. for Auto Safety v. EPA, 731 F.2d 16, 20 (D.C. Cir. 1984) (finding a court has broad

discretion to determine the need for in camera review).14

Plaintiff’s speculation and disbelief that Executive Branch officials have not disclosed

information in the withheld documents does not warrant in camera review. See Canning, 134 F.

Supp. 3d at 502. As Judge Moss noted in Canning, “[i]n camera review is a ‘last resort,’ not a

fishing expedition. . . . If in camera review were justified solely on the basis of Plaintiffs’

‘doubt,’ it is difficult to imagine any FOIA action in which such review would not be

14
Moreover, in camera review is particularly disfavored in cases, like this one, that involve
highly classified national security information. See Armstrong v. Exec. Office of the President,
97 F.3d 575, 580 (D.C. Cir. 1996); see Gaviria Decl. ¶ 19.
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warranted.” Id. Nor should in camera review be ordered simply on the theory that “it can’t

hurt.” Quinon v. FBI, 86 F.3d 1222, 1228 (D.D.C. 1996) (citation omitted).

Furthermore, Plaintiff’s attempt to apply principles of express adoption from Second

Circuit case law in the context of an unauthorized disclosure, like the “Basis for Using Force”

document, and stretching it further to argue that such disclosure waives exemption claims for

allegedly similar documents, proves too much.15 See Pl.’s Mem. at 19 n.16 (citing Brennan Ctr.

for Justice at N.Y. Univ. Sch. Of Law v. DOJ, 697 F.3d 184, 207-08 (2d Cir. 2012); see also id. at

30 (citing ACLU v. DOJ, No. 15-cv-1954, 2016 WL 889739, at *5-6 (S.D.N.Y. Mar. 3, 2016)).

As a legal matter, the “Basis for Using Force” document cannot demonstrate waiver of any

applicable privileges, thus, there is no point in conducting in camera review to determine any

“overlap” with the withheld documents. See Pl.’s Mem. at 18.

E. Defendants’ Submissions Are Sufficient To Justify Their Withholdings

Plaintiff also asserts that Defendants’ Vaughn Index is insufficient because it provides

insufficient detail to justify Defendants’ exemption claims. This argument, however, ignores the

totality of Defendants’ submissions and attempts to impose a higher burden on Defendants than

is required.

As detailed in its opening brief, and further demonstrated herein, the totality of

Defendants’ submissions in support of summary judgment are more than adequate to sustain

their withholdings. The touchstone for the adequacy of an agency’s submissions in a FOIA case

15
Contrary to Plaintiff’s claim, it is clear that the official release of the DOJ White Paper was a
material factor in the New York Times decision. Pl.’s Mem. at 19 n.16; see New York Times, 756
F.3d at 116 (finding that after, inter alia, “the Government makes public a detailed analysis of
nearly all the legal reasoning contained in the OLC–DOD Memorandum, waiver of secrecy and
privilege as to the legal analysis in the Memorandum has occurred” (emphasis added)). Indeed,
finding waiver where unauthorized disclosures are made would only lead to “exacerbation of the
harm created by the leaks.” Murphy v. FBI, 490 F. Supp. 1138, 1142 (D.D.C. 1980).
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is whether the submissions are specific enough to demonstrate “that material withheld is

logically within the domain of the exemption claimed . . . .” King v. DOJ, 830 F.2d 210, 217

(D.C. Cir. 1987); see also Oglesby v. U.S. Dept. of the Army, 79 F.3d 1172, 1178 (D.C. Cir.

1996) (“If an affidavit submitted by an agency contains sufficient detail to forge the ‘logical

connection between the information withheld and the claimed exemption,’. . . then the court will

accord that affidavit substantial weight and consider the agency’s ‘unique insights into what

adverse effects might occur as a result of public disclosure’” (citation omitted)). As courts have

repeatedly noted, “it is the function, not the form, of the [submission] that is important.” Judicial

Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006). In fact, an index is not

required; “an agency may . . . submit other measures in combination with or in lieu of the index

itself,” including supporting declarations, id., “‘so long as they give the reviewing court a

reasonable basis to evaluate the claim of privilege,’” id. (quoting Gallant v. Nat’l Labor

Relations Bd., 26 F.3d 168, 173 (D.C. Cir. 1994).

Plaintiff’s contention that “Defendants have left much of their Index blank” and that the

Index’s descriptions are largely conclusory, Pl.’s Mem. at 31, neglects the detailed discussion of

the documents contained in Defendants’ numerous declarations, including supplemental

declarations. The Vaughn Index must be read in conjunction with these submissions. For

example, the “to,” “from,” or other “author or recipient data” Plaintiff complains is missing from

the Vaughn Index is expanded upon in the accompanying declarations.16 See e.g., Colborn Decl.

¶ 18, 22 (legal memorandum); id. ¶¶ 19, 24 (OLC outline); Suppl. Stein Decl. ¶ 10

16
Defendants included information in the “To” or “From” columns of the Vaughn Index only
where the documents themselves included such lines. As explained above, however, that does
not mean that further information regarding the author, sender, or recipient of the withheld
documents was not provided elsewhere in Defendants’ submissions in support of summary
judgement, as necessary and appropriate.
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(recommended responses to questions from Congress). The declarations likewise provide

additional contextual and factual details regarding the nature of the documents and the role the

documents played in the various decision-making processes at issue. See, e.g., Castellano Decl.

¶¶ 35-42 (proposed press guidance and talking points). Indeed, the declarations amplify the

descriptions of each of the documents provided in the Vaughn Index. See, e.g., id.; Colborn

Decl. ¶¶ 18-19, 21-25; Herrington Decl. ¶¶ 14-17; Stein Decl. ¶¶ 21-26; Suppl. Stein Decl. ¶¶ 6-

11. Thus, Plaintiff’s criticism of the Vaughn Index as lacking sufficient detail, without

recognizing the detail found in the declarations and supplemental declarations, is without merit.

Moreover, Plaintiff’s claim that Defendants’ Vaughn Index is inadequate because it does

not indicate whether the proposed press guidance, talking points, and recommended responses to

questions from Congress documents were actually “used [] in communicating to the press, the

public, or Congress” is unavailing. Pl.’s Mem. at 32. As explained in their opening brief, and

above, such documents are by their very nature predecisional and deliberative. They were

created in anticipation of potential future communications, ACLU v. Dep’t of Homeland Sec.,

738 F. Supp. 2d at 112, and provided recommendations and options for the decision-maker (in

this case the Department officials speaking for the agency) that “reflects the essence of internal

deliberations that Exemption 5 was designed to protect,” Sierra Club v. U.S. Dep’t of Interior,

384 F. Supp. 2d 1, 19 (D.D.C. 2004). Plaintiff has not cited any case law that establishes that

mere “use” (whatever that term is intended to encompass) of talking points or other press

guidance documents destroys their predecisional and deliberative nature. In fact, Supreme Court

precedent acknowledges that mere “use” of a document does not strip it of protection under

Exemption 5. See Renegotiation Bd., 421 U.S. at 189 (sustaining withholding of predecisional

reports that were prepared for and designed to be used by agency decision-makers as basis for

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discussion); see also United States v. Philip Morris USA, Inc., 218 F.R.D. 312, 318 (D.D.C.

2003) (in a non-FOIA case, agreeing with the Government that “it is not required to demonstrate

as to each challenged document that it was not ‘used’ by a decisionmaker”).

Documents such as talking points and press guidance are, of course, intended to be used

by an agency decision-maker, just as any predecisional, deliberative document is. See Castellano

Decl. ¶ 38 (noting that senior DOJ officials “rely heavily on the creation of . . . press guidance so

that they can be fully informed on the substance of the daily legal and policy issues being

worked on in the Department.”). Nevertheless, numerous courts in this district have found that

records related to proposed guidance for responding to media and congressional inquiries are

protected by the deliberative process privilege, even “final” versions of such documents. See

supra, pp. 19. Moreover, a “use” standard would be too vague and unworkable. See Philip

Morris USA, 218 F.R.D. at 318. If, for example, “use” means that an official’s public statement

reflected or resembled material withheld in press guidance-type documents, such requirement

“would essentially swallow the deliberative process privilege.” Id. at 319; see also id. at 318

(finding that “express use” as a standard is too indefinite to be applied).

Instead, to the extent Plaintiff claims that the Government has subsequently adopted or

waived information contained in the withheld guidance documents, the burden is not on

Defendants to prove the negative. See, e.g., Sec. Financial Life Ins. Co. v. Dep’t of Treasury,

No. 03-cv-102, 2005 WL 839543, at *7 (D.D.C. Apr. 12, 2005) (“the Department does not carry

the burden of proving that each withheld document was not adopted formally or informally”);

Renegotiation Bd., 421 U.S. at 189; Trans Union LLC v. Fed. Trade Comm’n, 141 F. Supp. 2d

62, 70-71 (D.D.C. 2001)); Davis, 968 F.2d at 1279 (finding that the requester bears the burden of

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demonstrating waiver “because the task of proving the negative-that information has not been

revealed-might require the government to undertake an exhaustive, potentially limitless search”).

CONCLUSION

For the foregoing reasons, and the reasons set forth in Defendants’ Motion for Summary

Judgment, Defendants respectfully request that the Court grant their motion, deny Plaintiff’s

Cross-Motion for Summary Judgment, and enter summary judgment in Defendants’ favor.

Dated: January 9, 2018 Respectfully submitted,

CHAD A. READLER
Principal Deputy Assistant Attorney General

JESSE K. LIU
United States Attorney

ELIZABETH J. SHAPIRO
Deputy Branch Director

/s/ Kathryn C. Davis

KATHRYN C. DAVIS (DC Bar No. 985055)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW, Rm. 6130
Washington, D.C. 20530
Tel: (202) 616-8298
Email: Kathryn.C.Davis@usdoj.gov

Attorneys for Defendants

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