Am. Ctr. for L. & Just. v. Dep't of State, No. 16-1355, 2021 WL 1601150 (D.D.C. Apr. 23, 2021) (Kelly, J.)

Am. Ctr. for L. & Just. v. Dep't of State, No. 16-1355, 2021 WL 1601150 (D.D.C. Apr. 23, 2021) (Kelly, J.)

Re:  Request for records concerning exchange with reporter during press briefing held by State Department on December 2, 2013

Disposition:  Granting in part and denying in part defendant's renewed motion for summary judgment; granting in part and denying in part plaintiff's renewed motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  First, regarding "one of seven May 9, 2016 email threads that contained discussion between State officials about how it should respond to the reporter’s inquiry about the missing portion of the video," the court holds that it "is covered by the deliberative process privilege and thus State properly withheld it under Exemption 5 and fulfilled its duty to provide all reasonably segregable information."  The court explains that "State released the confirmation email to [plaintiff] without redaction."  "And as for the emails that followed the confirmation email, State submitted a new affidavit to the Court explaining that it redacted the information in them 'because it reflects officials' recommendations about how to engage the reporter moving forward and how to respond to any follow-up inquiries from the reporter.'"
  
  Second, regarding "a May 10, 2016, email thread in which two employees in State's Bureau of Public Affairs Office of Video Services discussed a news report about the edited video," the court relates that "[plaintiff] represents that, given State's representations, it has withdrawn its challenge to the material withheld under Exemption 6."  "Moreover, [plaintiff] makes no argument in its motion, opposition, or reply about the remaining redaction justified under Exemption 5 and so the Court considers its challenge to that withholding withdrawn as well."
   
• Exemption 5, Other Privileges:  Regarding a December 4–5, 2013, email chain involving [a] National Security Council official . . . , [a] White House official . . . , [the then-State Department Spokesperson], State's Deputy Spokesperson . . . , and a reporter, about press guidance and strategy related to Iran," "[t]he Court holds that State has not met its burden of showing that the redacted material is covered by the presidential communications privilege, and thus may be withheld under Exemption 5."  "The record lacks information from which the Court can conclude that the meeting described in the redacted material was convened by an immediate presidential adviser for the purpose of advising the President."  "State seems to argue that because the meeting was convened within the National Security Council framework, it must have been called by an immediate White House adviser covered by the privilege."  "Maybe."  "But even if the Court could find that whoever called the meeting must have been close enough to the President for the privilege to attach, on this record the Court cannot find that the meeting was called for the purpose of advising him . . . ."  "[T]he burden is on State to show that the privilege applies, and there is no affidavit in the record declaring that the specific meeting at issue was called to advise the President."  "[I]f anything, the circumstances here reflect the likelihood that the meeting was not called for that purpose."  "The Court finds it revealing that a key decision that appears to be the reason State is asserting the privilege was made at the meeting in question."  "And State has, conspicuously, not represented that the President participated in the meeting."  "To be sure, as discussed above, if the meeting was convened for the purpose of advising him, the President need not have attended it for the privilege to attach."  "But assuming the President did not participate, and without any further explanation from State about how the meeting connected to his decisionmaking, it seems unlikely that the meeting would have been called to advise him on a matter that the participants resolved right then and there, without him."  "In addition, that the decision concerned how to address 'the administration's response to the press reports regarding U.S.-Iran talks' and 'how to communicate Iran-related policy to the public' does not, on its own, suggest presidential decisionmaking."  "To be sure, the Court accepts that press strategy can be a part of diplomacy and presidential decisionmaking."  "But there is no indication that it was in this case."