Electronic Frontier Foundation v. Department of Justice , 892 F. Supp. 2d 95 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ELECTRONIC FRONTIER )
FOUNDATION, )
)
Plaintiff, )
) Civil Case No. 11-939 (RJL)
v. )
)
DEPARTMENT OF JUSTICE. )
)
Defendant. )
)
MEMoRANDuM OPINION
s+-
(September~, 2012) [#11, #14]
Plaintiff Electronic Frontier Foundation ("EFF" or "plaintiff') brings this action
against the U.S. Department of Justice ("the Department", "DOJ" or "defendant") for
failure to disclose information pursuant to the Freedom of Information Act ("FOIA").
Plaintiff seeks material from DOJ's Office of Legal Counsel ("OLC") that interprets the
scope of certain areas of the Federal Bureau oflnvestigation's ("FBI") authority under
federal surveillance law. Before the Court are the parties' cross-motions for summary
judgment. Upon consideration of the parties' pleadings, relevant law, and the entire
record herein, the defendant's motion is GRANTED and the plaintiffs cross-motion is
DENIED.
BACKGROUND
Plaintiff is a non-profit organization concerned with technology-related civil
1
liberty issues. Compl. ~ 3, ECF No. 1. In February 2011, plaintiff submitted a FOIA
request for a January 8, 2010 memorandum prepared by OLC (hereinafter, "OLC
Opinion") for the FBI. !d. ~ 9. The requested OLC Opinion was generated in the context
of an internal executive branch examination of some of the FBI's information-gathering
techniques. !d. ~~5-6. More specifically, pursuant to the reauthorization of the USA
PATRIOT Act, DOJ's Office ofthe Inspector General ("OIG") examined the FBI's
practice of requesting and receiving telephone records from major companies by using
secret administrative subpoenas known as National Security Letters ("NSLs"). !d. The
OIG found that the FBI was sometimes requesting immediate disclosure of telephone
records using exigent letters, rather than or prior to providing NSL subpoenas, and
subsequently initiated a study of the FBI's use ofthese exigent letters to obtain
telecommunications records. !d. ~ 5.
While the OIG study was still in progress, the FBI sought OLC's legal advice on
whether, in national security investigations, the FBI's obtainment of certain types of
telephone records without the use ofNSLs or any other process complied with the law.
!d.~ 6. On January 8, 2010, OLC provided the FBI with a memorandum of its legal
analysis and advice. !d. Pursuant to the FOIA, plaintiff requested a copy of the OLC
Opinion on February 15, 2011. !d.~ 9. Ten days later, on February 25, 2011, OLC
denied plaintiffs FOIA request, explaining that the OLC Opinion was being withheld
under FOIA Exemptions 1 and 5. !d.~ 10. Plaintiff formally appealed OLC's decision to
DOJ's Office of Information Policy ("OIP") on March 18, 2011, but received no
response. I d. ~~ 11-13.
2
Two months later, on May 19, 2011, plaintiff filed a complaint in this Court,
seeking an order to compel disclosure of the OLC Opinion. See generally id. On
November 10, 2011, the Department moved for summary judgment, contending that the
OLC Opinion was justifiably withheld under FOIA Exemptions 1 and 5. Def.'s Mot. for
Summ. J. ("Def.'s Mot.") at 1, ECF No. 11. The Department supported its motion with
two affidavits, one from the FBI Section Chief responsible for FOIA requests and the
other from OLC Special Counsel. See Corrected Decl. of David M. Hardy ("Hardy
Decl."), ECF No. 12-1; Decl. of Paul P. Colborn ("Colborn Decl."), ECF No. 11-4. On
December 13, 20 11, plaintiff also moved for summary judgment, asserting that the DOJ
is not entitled to summary judgment because it failed to carry its burden to withhold the
OLC Opinion under Exemptions 1 and 5. Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ.
J. and in Supp. ofPl.'s Cross-Mot. for Summ. J. ("Pl.'s Mem.") at 11-12, ECF No. 14.
For the reasons set forth below, I disagree and GRANT summary judgment in favor of
the defendant.
ANALYSIS
Both parties have moved for summary judgment in this case. FOIA cases are
"typically and appropriately" decided on motions for summary judgment. Defenders of
Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). "When assessing a
motion for summary judgment under FOIA, the Court shall determine the matter de
novo." Judicial Watch, Inc. v. U.S. Dep'tofHomeland Sec., 598 F. Supp. 2d 93,95
(D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)).
Summary judgment is appropriate when the record demonstrates that there is no
3
genuine issue of material fact in dispute and that the moving party is entitled to judgment
as a matter oflaw. Fed. R. Civ. P. 56(a). With respect to an agency's non-disclosure
decisions in a FOIA action, the court may rely on affidavits or declarations if they
describe "the justifications for nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the claimed exemption, and are not
controverted by either contrary evidence in the record nor by evidence of agency bad
faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (affidavits and
declarations are "accorded a presumption of good faith, which cannot be rebutted by
purely speculative claims about the existence and discoverability of other documents")
(internal citation and quotation marks omitted).
"Ultimately, an agency's justification for invoking a FOIA exemption is sufficient
if it appears 'logical' or 'plausible."' Larson v. Dep 't ofState, 565 F.3d 857, 862 (D.C.
Cir. 2009) (quoting Wolfv. CIA, 473 F.3d 370,374-75 (D.C. Cir. 2007)). In assessing
the logic and plausibility of an agency assertion of an exemption, "reviewing courts
[should] respect the expertise of an agency" and avoid "overstep[ping] the proper limits
of the judicial role in FOIA review." Hayden v. NSA, 608 F.2d 1381, 1388 (D.C. Cir.
1979); see also Military Audit Project, 656 F.2d at 753; Halperin v. CIA, 629 F.2d 144,
148 & n.20 (D.C. Cir. 1980). For the following reasons, the Court finds there are no
genuine issues of material fact as to the validity of each exemption invoked in this case.
I. Exemption 1
Information can be withheld under Exemption 1 if it is "specifically authorized
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under criteria established by an Executive order to be kept secret in the interest of
national defense or foreign policy and [is] in fact properly classified pursuant to such
Executive order." 5 U.S.C. § 552(b)(l). The Department asserts that the withheld
information contained within the OLC Opinion was properly classified pursuant to
Executive Order ("E.O.") 13526, 75 Fed. Reg. 707 (Dec. 29, 2009), which exempts from
disclosure information pertaining to "intelligence activities" and "intelligence sources or
methods" that, if disclosed, could be expected to cause damage to the national security.
E.O. 13526, §§ 1.2, 1.4(c).
To show that it has properly withheld information under E.O. 13526, and that the
classification is proper, DOJ must demonstrate that the withheld information falls within
the substantive scope ofE.O. 13526, and that the information was classified using the
proper procedures. 1 Under section 1.1(a) ofE.O. 13526, information can be properly
classified if it ( 1) is classified by an original classification authority; (2) is owned,
produced, or controlled by the U.S. government; (3) pertains to "intelligence activities
1 See King v. DOJ, 830 F.2d 210, 214 (D.C. Cir. 1987); Halperin v. Dep 't ofState, 565
F.2d 699, 703 (D.C. Cir. 1977); Hardy Decl. ~ 7. These proper procedures include: (1)
the document was marked as required and stamped with the proper classification
designation, E.O. 13526, §§ 1.6(a)(1)-(5); (2) the document was marked to indicate
clearly which portions are classified, which portions are exempt from declassification as
set forth in E.O. 13526, § 1.6(c), and which portions are unclassified, E.O. 13526, §
1.6(c); (3) the prohibition and limitations on classification specified in E.O. 13526, §
1.7(a) were adhered to; (4) the declassification policies set forth in E.O. 13526, §§ 3.1
("Authority for Declassification") and 3.3 ("Automatic Declassification") were followed;
and (5) any reasonably segregable portions of this classified document which did not
meet the standards for classification under E.O. 13526 were declassified and marked for
release, unless withholding was otherwise warranted under applicable law, 5 U.S.C. §
552(b). See Hardy Decl. ~ 10. The Hardy declaration explains that all of the procedural
requirements ofE.O. 13526 were followed in this case. !d.
5
(including covert action), intelligence sources or methods, or cryptology", among other
protected categories, and (4) ''the original classification authority determines that the
unauthorized disclosure of the information reasonably could be expected to result in [a
specified level of] damage to the national security, ... and the original classification
authority is able to identify or describe the damage." E.O. 13526, §§ 1.1(a), 1.4(c); see
also Hardy Decl. ~ 8.
Here, DOJ withheld from the plaintiff specific portions of the OLC Opinion that
contained highly specific, classified information relating to FBI intelligence sources or
methods. See Hardy Decl. ~~ 12, 16, 17. The eleven-page OLC Opinion was written in
response to a specific request from the FBI for legal analysis and advice regarding the
OIG's then ongoing evaluation of the FBI's information-gathering techniques in national
security investigations. !d. ~ 11. To support its actions in this case, the Department
submitted two declarations, one from David M. Hardy, Section Chief of FBI's Records
Management Division, and another from Paul P. Colborn, OLC Special Counsel. See
generally id.; Colborn DecI. Based on these detailed declarations, I find that the
specified portions of the OLC Opinion were appropriately withheld by DOJ under
Exemption 1.
First, the Department's declarations demonstrate that the classification markings in
the OLC Opinion, which were ultimately withheld, were properly made pursuant to the
mandated procedures ofE.O. 13526. More specifically, the Hardy and Colborn
declarations explain that the FBI, in making its request for legal advice to OLC, sent two
letters to the agency that included classified factual information regarding "certain
6
sensitive techniques used in the context of national security and law enforcement
investigations." 2 Colborn DecI. ~~ 9-11; Hardy DecI. ~ 4. Utilizing such classified
factual information to render its guidance, OLC followed its standard practice and
marked as classified "[t]hose portions of the [OLC] Opinion which reflect classified
factual information provided to OLC by the FBI." Colborn Decl. ~ 11. Accordingly, in
determining whether each classification marking contained in the OLC Opinion is proper,
Hardy, who holds original classification authority pursuant to E.O. 13526, 3 also carefully
reviewed each of the classification markings contained in the two FBI letters. Hardy
Decl. ~~ 4, 18, 21. The Hardy declaration makes clear that, in accordance with E.O.
13526, all withheld information in the OLC Opinion was appropriately classified at the
"SECRET/NOFORN" ("S/NF") level by the FBI, was under the control of the U.S.
government, and continues to warrant classification at the "S/NF" level in the interest of
national security. 4 /d.~~ 5, 9, 12, 19, 21.
In addition, through the assertions in its declarations, the DOJ demonstrates that
2 The first letter, a November 27, 2009 opinion request, was from FBI's General Counsel,
Valerie Caproni, to OLC's Acting Assistant Attorney General, David Barron. Hardy
Decl. ~ 4. Supplementing the previous letter with additional facts and an expanded
request for legal advice, the second letter, dated December 11, 2009, was again from
Caproni to Barron. !d. The DOJ declarations confirm that a number of the individual
paragraphs in these two letters were marked as classified by the FBI at the
"SECRET/NOFORN" ("S/NF") level, which restricts access to persons who need to
know with an appropriate security clearance. See id.; Colborn Decl. ~ 10.
3 More specifically, Hardy has been designated by the Attorney General of the United
States as an original classification authority pursuant to E.O. 13526, §§ 1.3 and 3.1.
Hardy Decl. ~ 2.
4 The only reclassification ordered by Hardy after his "careful classification review" of
the OLC Opinion was the re-designation from "UNCLASSIFIED" ("U") to "S/NF" of
one footnote. Hardy Decl. ~ 21.
7
the withheld portions of the OLC Opinion were properly classified under section 1.4(c) as
intelligence activities, sources or methods and that disclosure of such information could
reasonably be expected to cause damage to national security. More specifically, Hardy
avers in his declaration that the classified information contained in the OLC Opinion
concerns: (1) "actual intelligence activities, sources or methods used by the FBI against
targets of foreign counterintelligence and counterterrorism investigations or operations";
and (2) "intelligence-gathering capabilities used by the FBI to gather specific information
on targets of national security investigations." Hardy Decl. ~~ 14-15. Explaining that
such information is "highly specific," "known to very few individuals," and "still used by
the FBI today to gather intelligence information," id. ~ 16, Hardy asserts that the
disclosure of such information could reasonably be expected to cause "serious damage to
national security" by, among other things, "allow[ing] hostile entities to discover the
current methods and activities used" and "appraise the scope, focus, location, and
capabilities ofthe FBI's intelligence-gathering methods and activities." !d.~~ 12, 16-17.
In addition to causing a major disruption to FBI's intelligence-gathering capabilities, this
would also "severely damage the FBI's efforts to detect and apprehend violators ofthe
United States' national security and criminal laws." !d. ~ 16. Moreover, Hardy explains
that disclosure also could "allow hostile agents to devise countermeasures to circumvent
these intelligence activities or methods," such as the "alteration of behavior to evade
detection" or the "utiliz[ation] [of] these same methods and activities to engage in
disinformation," thus rendering the FBI's methods and activities "useless in providing
intelligence information." !d. ~~ 16-17.
8
"[C]ourts must 'recognize that the Executive departments responsible for national
defense and foreign policy matters have unique insights into what adverse affects [sic]
might occur as a result of public disclosure of a particular classified record."' Salisbury
v. United States, 690 F.2d 966, 970 (D.C. Cir. 1982) (quoting S. Rep. No. 93-1200, at 12
(1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6290). Thus, while this Court's review is
de novo, our Circuit has consistently emphasized its deferential posture to the executive
in FOIA cases involving national security concerns, as judges "lack the expertise
necessary to second-guess such agency opinions in the typical national security FOIA
case." Halperin, 629 F.2d at 148; see also Larson, 565 FJd at 865; Ctr.for Nat'[ Sec.
Studies v. DOJ, 331 F.3d 918, 928 (D.C. Cir. 2003). Accordingly, this Court should not
"conduct a more detailed inquiry to test the [DOJ' s] judgment and expertise or to
evaluate whether the court agrees with the [DOJ's] opinions" if the agency's statements
in support of exemption "contain reasonable specificity of detail as to demonstrate that
the withheld information logically falls within the claimed exemption and evidence in the
record does not suggest otherwise." Larson, 565 F.3d at 865; see also Hodge v. FBI, 764
F. Supp. 2d 134, 138 (D.D.C. 2011). "Ultimately, an agency's justification for invoking
a FOIA exemption is sufficient if it appears logical or plausible." Larson, 565 FJd at
862 (internal citations and quotation marks omitted); Wolfv. CIA, 357 F. Supp. 2d 112,
116 (D.D.C. 2004), rev 'don other grounds, 473 FJd 370 (D.C. Cir. 2007) ("In
reviewing a classification decision ... this Circuit has required little more than a showing
that the agency's rationale is logical.").
Conferring substantial weight and deference to the DOJ' s declarations, I find that
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the Department has explained with sufficient detail why the withheld information in the
OLC Opinion qualifies as "intelligence sources or methods" and adequately described the
potential harm to national security that could result from the information's public
disclosure. The Department has thus met its burden for invoking FOIA Exemption I by
demonstrating that the information requested by plaintiff in the OLC Opinion is properly
classified according to the criteria established by E.O. 13526.
Plaintiffs arguments to the contrary are unpersuasive. First, plaintiff argues that
the DOJ failed to provide a detailed justification of its withholdings, tied to the particular
part of the OLC Opinion to which it applied, and thus failed to sustain its burden
regarding FOIA Exemption 1 on summary judgment. 5 See Pl.'s Mem. at I4-I5. The law
of our Circuit has made clear, however, that an agency satisfies its burden provided that
the agency's submissions 6 set forth a "relatively detailed justification for invoking an
exemption to disclosure; specifically identify the reasons why a particular exemption is
relevant; and correlate those claims with those records (or portions thereof) to which they
apply." Schoenman v. FBI, 763 F. Supp. 2d 173, I88 (D.D.C. 2011) (quoting Judicial
Watch, Inc. v. FDA, 449 F.3d I4I, I45 (D.C. Cir. 2006)) (internal quotation marks
omitted).
5 More specifically, plaintiff takes issue with DOJ's application of Exemption I, in the
aggregate, to pages I to 2 and 4 to II of the OLC Opinion, without specifying "that
Icertain] words, lines, or paragraphs in the document are classified." Pl.'s Mem. at I4.
Although a Vaughn index is generally required in FOIA cases, our Circuit has made
clear that supporting affidavits may be submitted in lieu of a Vaughn index, as "it is the
function, not the form, of the index that is important." Judicial Watch, Inc. v. FDA, 449
F.3d I4I, I46 (D.C. Cir. 2006); Keys v. US. Dep't ofJustice, 830 F.2d 337,349 (D.C.
Cir. I987).
10
Here, the Department has made clear, via its declarations, that it is asserting
Exemption 1 only as to certain paragraphs of the OLC Opinion which have been marked
as classified in accordance with the classification markings included in the FBI's two
letters to OLC requesting legal advice. See Hardy Decl. ~~ 4-5, 12, 20-21; Colborn Decl.
~~ 10-11. Having conveyed enough information for the plaintiff and the Court "to
identify the records referenced and understand the basic reasoning behind the claimed
exemptions," Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007), the Department's
submitted declarations are sufficiently specific to satisfy its burden without going so far
as to disclose protected information. See Judicial Watch, 449 F.3d at 147 ("We have
never required repetitive, detailed explanations for each piece of withheld information.").
As such, this Court declines plaintiffs invitation to review the records at issue in camera.
See Pl.'s Reply Mem. in Supp. ofPl.'s Cross-Mot. for Summ. J. ("Pl.'s Reply") at 5, ECF
No. 20; Hayden, 608 F.2d at 1387 (in FOIA cases, in camera review is a "last resort to be
used only when the affidavits are insufficient for a responsible [d]e novo decision")
(internal citation and quotation marks omitted).
Second, plaintiff alleges that DOJ has failed to demonstrate a "logical connection"
between the withheld information, which it characterizes as "ten pages of legal analysis,"
and the claimed exemption, namely the disclosure of intelligence activities, sources, or
methods. Pl.'s Mem. at 15-16. The Department's submissions elucidate, however, that
information withheld from the OLC Opinion under Exemption 1 reflects classified
factual information provided to OLC by the FBI that, if disclosed, could cause damage to
national security, and any portion of the OLC Opinion that contains only legal analysis,
11
divorced from classified factual information, has been withheld under Exemption 5, not
Exemption 1. 7 Plaintiffs argument is thus misplaced.
Last, plaintiff accuses the Department of improperly classifying some of the
material to avoid embarrassment or conceal law-breaking. See Pl.'s Mem. at 16-17. The
plaintiff however has no evidence to support its bald allegation of government
misconduct. Without any evidence suggesting bad faith on behalf of the defendant, I
conclude that this information was properly withheld under Exemption 1. See Gov 't
Accountability Project v. US. Dep 't ofState, 699 F. Supp. 2d 97, 102 (D.D.C. 2010).
II. FOIA Exemption 5
FOIA Exemption 5 protects from disclosure inter-agency or intra-agency letters or
memoranda ''which would not be available by law to a party ... in litigation with the
agency." 5 U.S.C. § 552(b)(5). To qualify for this exemption, a document "must fall
within the ambit of a privilege against discovery under judicial standards that would
govern litigation against the agency that holds it." Dep 't ofthe Interior v. Klamath Water
Users Protective Ass'n, 532 U.S. 1, 8 (2001). Courts have incorporated civil discovery
privileges into this exemption, such as attorney work-product, attorney-client privilege,
and "deliberative process" privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
148-49 (1975); Coastal States Gas Corp. v. DOE, 617 F.2d 854,862 (D.C. Cir. 1980).
Here, the defendant asserts both the deliberative process privilege and the attorney-client
7 See Colborn Decl. ~ 11 ("Those portions of the [OLC] Opinion which reflect classified
factual information provided to OLC by the FBI are marked classified. Those portions of
the [OLC] Opinion that are marked unclassified reflect other confidential factual as well
as confidential legal communications provided by the FBI to OLC for the purpose of
obtaining JegaJ advice.").
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privilege to withhold the entirety of the OLC Opinion. Def.'s Mem. in Supp. of Mot. for
Summ. J. ("Def.'s Mem.") at 1, ECF No. 11-2. For the following reasons, I agree.
A. Deliberative Process Privilege
The deliberative process privilege exempts from disclosure those documents that
contain deliberations comprising part of a process by which governmental decisions and
policies are made. Klamath Water Users, 532 U.S. at 8. Accordingly, government
materials that are both "predecisional" and "deliberative" are shielded by the privilege.
Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997); see also Vaughn v. Rosen, 523
F.2d 1136, 1143-44 (D.C. Cir. 1975) (noting that a document is "deliberative" if it
"makes recommendations or expresses opinions on legal or policy matters"); Petroleum
Info. Corp. v. Dep't ofthe Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (citing
Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 (1975)) ("A
document is predecisional if it was prepared in order to assist an agency decision-maker
in arriving at his decision, rather than to support a decision already made.") (internal
quotation marks omitted). "[T]he ultimate purpose of this long-recognized [deliberative
process] privilege is to prevent injury to the quality of agency decisions" as well as to
encourage ''the frank discussion of legal and policy issues" by ensuring that agencies are
not "forced to operate in a fishbowl." Sears, 421 U.S. at 151; Mapother v. DOJ, 3 F.3d
1533, 1537 (D.C. Cir. 1993); Wolfe v. Dep't ofHealth & Human Servs., 839 F.2d 768,
773 (D.C. Cir. 1988) (en bane).
In this case, the Department withholds the entirety of the eleven-page OLC
Opinion under the deliberative process privilege because "it constitutes advice used by
13
decision-makers at the FBI and by other Executive Branch agencies and Department
components in the context of their efforts to ensure that any [FBI] information-gathering
procedures comply fully with the law." Colborn Decl. ~ 13. In his declaration, Colborn
explains that the OLC Opinion was sought by the FBI in connection with the agency's
"re-evaluation" of its use of sensitive techniques in national security and law enforcement
investigations, in response to questions raised about such techniques by the OIG. !d. In
evaluating how it should respond to OIG's draft report on the issue, the FBI thus sought
OLC's guidance regarding "the proper interpretation of the law with respect to
information-gathering procedures employed by the FBI and other Executive Branch
agencies." 8 !d. ~ 14. Disclosure of the OLC Opinion, Colborn asserts, "would
undermine the deliberative processes of the government and chill the candid and frank
communications necessary for effective governmental decision-making." !d. ~ 13.
It is apparent that the OLC Opinion is both predecisional and deliberative in
nature, and thus subject to the deliberative process privilege. The OLC Opinion as
described in the Department's declarations contains inter-agency material that was
generated as part of a continuous process of agency decision-making, namely how to
respond to the OIG's critique of the FBI's information-gathering methods in certain
investigations. The declarations explain that the OLC prepared the memorandum at
issue, which expresses legal opinions and makes recommendations based thereon, to
8 FBI's request to OLC for legal guidance fits squarely within the OLC's principal
function: to assist the Attorney General in his role as legal advisor to the President of the
United States and to departments and agencies of the Executive branch. Colborn Decl. ~
2. In this role, the OLC "provides advice and prepares opinions addressing a wide range
of legal questions involving the operations of the Executive Branch." Id.14
assist the FBI in arriving at its policy decision. 9 The law of our Circuit is clear that under
such circumstances, the OLC Opinion is appropriately exempt from disclosure pursuant
to Exemption 5. 10 Indeed, it is not hard to imagine how disclosure of the OLC Opinion
would likely interfere with the candor necessary for open discussions on the FBI's
preferred course of action regarding the OIG evaluation. See Colborn Decl. ~ 4.
Accordingly, I uphold the DOJ's classification of the OLC Opinion as subject to
the deliberative process privilege and therefore exempt from disclosure under Exemption
5. Because all of the information withheld pursuant to the attorney-client privilege was
9 Although plaintiff may dispute the DOJ' s chronology of events, Pl.'s Mem. at 21-27,
agency affidavits are accorded a presumption of good faith. See SafeCard Servs., 926
F.2d at 1200.
10 See, e.g., Grumman, 421 U.S. at 188 ("By including inter-agency memoranda in
Exemption 5, Congress plainly intended to permit one agency possessing decisional
authority to obtain written recommendations and advice from a separate agency not
possessing such decisional authority without requiring that the advice be any more
disclosable than similar advice received from within the agency."); Brinton v. Dep 't of
State, 636 F.2d 600, 604 (D.C. Cir. 1980) ("There can be no doubt that ... 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 ... "); Coastal States, 617
F .2d at 868 ("series of memoranda to the Assistant Secretary of the Army from the
General Counsel ... recommending legal strategy" is a "classic case of the deliberative
process at work"); Citizens for Responsibility & Ethics in Wash. v. Office ofAdmin., 249
F .R.D. 1, 5-7 (D.D.C. 2008) (OLC memorandum fits within the scope of deliberative
process privilege because it "contains legal advice from the equivalent of [the Office of
Administration's] outside counsel", "does not mandate a particular policy", and "can[not]
rightly be described as itself a statement of the Executive Branch's legal position"); Elec.
Privacy Info. Ctr. v. DOJ, 584 F. Supp. 2d 65, 75 (D.D.C. 2008) ("IfOLC provides legal
advice as part of a decision-making process, this legal advice is protected under the
deliberative process privilege."); Southam News v. INS, 674 F. Supp. 881, 886 (D.D.C.
1987) (concluding that OLC opinion letters "generated in the course of formulating
policies and positions that were being considered" falls within the deliberative process
privilege); Morrison v. DOJ, No. 87-3394, 1988 WL 47662, at *1-2 (D.D.C. Apr. 29,
1988) (finding that an OLC legal opinion analyzing the constitutionality of a proposed
amendment was exempt from disclosure under the deliberative process privilege).
15
also withheld pursuant to the deliberative process privilege, I do not need to consider the
propriety of the defendant's application of the attorney-client privilege.
B. Segregability
Finally, with regard to segregability, it is well established that an agency claiming
that a document is exempt under FOIA must, after excising the exempted information,
release any reasonably segregable information unless the non-exempt information is
inextricably intertwined with the exempt information. Trans-Pac. Policing Agreement v.
US. Customs Serv., 177 F.3d 1022, 1026-27 (D.C. Cir. 1999).
Here, the Department has sufficiently established that no portion of the OLC
Opinion is reasonably segregable and releasable. The DOJ's declarations explicate that,
although only portions of the OLC Opinion were withheld under Exemption 1, the
entirety of the OLC Opinion was withheld under Exemption 5, leaving nothing
significant that could be disclosed in a redacted format. See Hardy DecI. ,-r 5; Colborn
Decl. ,-r 11. As the Colborn declaration adequately states, the unclassified portions of the
OLC Opinion could not be released without "harm[ing] the deliberative processes of the
government" by "chill[ing] the candid and frank communications necessary for effective
governmental decision-making." Colborn Decl. ,-r,-r 13, 15. In the absence of contrary
evidence or specific cites to potentially unsegregated portions, the declarations are
afforded the presumption of good faith. See SafeCard Servs., 926 F.2d at 1200.
Therefore, I find that no portion of the OLC Opinion could be segregated and
subsequently released.
16
CONCLUSION
For all of the foregoing reasons, the Court GRANTS the defendant's Motion for
Summary Judgment [Dkt. #11] and DENIES plaintiffs Cross-Motion for Summary
Judgment [Dkt. #14]. An Order consistent with this decision accompanies this
Memorandum Opinion.
17