Am. First Legal Found. v. U.S. Dep’t of Agric., No. 22-3029, 2023 WL 4581313 (D.D.C. July 18, 2023) (Howell, J.)

Am. First Legal Found. v. U.S. Dep’t of Agric., No. 22-3029, 2023 WL 4581313 (D.D.C. July 18, 2023) (Howell, J.)

Re:  Request for strategic plans prepared in response to Executive Order regarding promoting access to voting

Disposition:  Granting defendants’ motion for summary judgment

• Exemption 5, Other Privileges & Foreseeable Harm and Other Considerations:  The court relates that “[t]he strategic plans at issue in this case contain both existing agency actions and pre-decisional and deliberative policies or ideas.”  “All defendants invoke Exemption 5 based on the applicability of the presidential communications privilege, which is ‘a presumptive privilege for Presidential communications.’”  The court holds that “[t]he presidential communications privilege applies in this case because the strategic plans were solicited by President Biden through EO 14019 and received by his immediate White House advisors for use in briefing and advising him on voting rights issues.”  “As part of the ‘policy of [his] Administration to promote and defend the right to vote,’ the President tasked the agencies with ‘outlining the ways identified under [the required] review that [they] can promote voter registration and voter participation.’”  “The Order included specific instructions for each agency to submit ‘a strategic plan’ to the Assistant to the President for Domestic Policy.”  “Pursuant to the Order, the at-issue strategic plans were submitted to Ambassador Rice, who was and remains the Assistant to the President for Domestic Policy as well as head of the DPC, which ‘drives the formulation and implementation of the President’s domestic policy agenda, including advice on voting rights matters.’”  “Ambassador Rice's staff members compiled information from the strategic plans, and senior White House advisors relied on the information to brief the President on agency actions and proposals and to advise the President on further executive decision-making regarding voting matters.”  “Thus, the strategic plans were ‘solicited’ by the President and ‘received’ by his ‘immediate White House advisers [with] . . . broad and significant responsibility for investigating and formulating the advice to be given the President,’ falling squarely within the protective scope of the presidential communications privilege.”
  
  “Plaintiff counters that ‘[t]he President had already made his decisions [regarding voting rights issues], publicly announced them, and directed the agencies to act,’ making the strategic plans merely ‘reports on final [agency] actions’ that had nothing further to do with confidential presidential decision-making.”  “In reality, however, section 3 of EO 14019 is not plainly ‘unambiguous,’ and plaintiff’s reading that this provision constitutes a final presidential directive for agencies to act and report back only on already completed actions is not an obvious one.”  “Section 2 of EO 14019 suggests that the President made all solicitations and requests under the executive order as part of ‘the policy of [his] Administration to promote and defend the right to vote.’”  “Consistent with this language, the Special Counsel’s affidavit suggests that “[t]he White House solicited the strategic plans in order to inform future policy developments on voting access.’”  “As defendants rightfully note, within this context of on-going executive policymaking, section 3 is more reasonably read as tasking agencies to brainstorm and identify ways that they ‘can promote voter registration and voter participation’ with future possible actions, not merely to report on actions already taken.”  “Indeed, upon making the request for submission, the White House also provided agencies with a template for developing their strategic plans.”  “Tellingly, the template included disclaimers that ‘[l]isting an action in this strategic plan does not commit your agency to implementing the action’ and that ‘most agencies will pursue additional actions not listed in this plan.’”  Additionally, the court finds that “[t]he President expressly solicited the strategic plans through his executive order and then communicated with his immediate advisors about information compiled from the strategic plans.”  “[T]the strategic plans are privileged because ‘the President solicited and received [them] in a manner sufficient to bring [them] within the presidential communications privilege,’ and they ‘d[id] not lose [their] privileged status simply because [they] traveled up the chain of command before the President received [them].’”
  
  “Additionally, protecting the strategic plans in full under the presidential communications privilege would not harm the public interest as plaintiff claims.”  “As defendants rightfully note, however, the strategic plans ‘do not constitute or establish “law” in the sense of setting forth a decision that binds subordinates or a regulated party.’”  “Rather, the strategic plans document information and advice ‘given up the chain to someone (the President) who then made a decision.’”  “The D.C. Circuit has clarified that the ‘secret law’ doctrine should be limited to ‘opinions and interpretations which embody the agency’s effective law and policy.’”  “As materials prepared for presidential decision-making, the strategic plans are distinct from working policies and laws of the agencies, which are separately mandated by FOIA to be disclosed to the public.”  “Thus, affording protection of the presidential communications privilege to the strategic plans does not constitute creating ‘secret law’ that harms the interests of the American public.”
  
  Regarding segregability, the court finds that “Plaintiff next contends that even if applicable, the presidential communications privilege should not shield the strategic plans in their entirety, but that position runs contrary to the proper application of the privilege as covering entire documents.”  “The entire-document rule for applying the presidential communications privilege is not ‘dicta,’ as plaintiff characterizes it, but ‘precedent’ consistently applied by the D.C. Circuit and courts in this district.”  “The D.C. Circuit has emphasized that because the presidential communications privilege must ensure the President’s ‘full access to facts,’ the privilege must protect factual information ‘revelatory of the President’s deliberations,’ including reports regarding implementation of a particular course of action that the President has decided to pursue.”  “Plaintiff argues that the entire-document principle is ‘not an iron rule,’ and that portions of the strategic plans stating final or completed agency actions are unrelated to direct presidential decision-making and thus segregable from the rest of the strategic plans.”  “This argument is untenable, for it mischaracterizes the entire-document rule as well as the strategic plans’ role in the President’s decision-making process.”  “[B]oth EO 14019 and the White House Special Counsel’s affidavit show that the President solicited the strategic plans and received their information as an integral part of his direct presidential policymaking on voting rights issues.”  “Furthermore, as defendants rightfully note, plaintiff has not identified a single case where a segregability analysis is applied to materials otherwise directly related to confidential presidential decision-making.”  “This is unsurprising, for the D.C. Circuit has squarely rejected similar attempts to apply segregability analysis to documents protected by the presidential communications privilege.”
  
  Finally, the court relates that “Plaintiff next contends that, even if the at-issue strategic plans are exempt from disclosure, defendants have not met their burden to show that disclosure ‘will foreseeabl[y] harm the interests protected by the presidential communications privilege.’”  The court finds that “the agency’s burden to demonstrate that harm would result from disclosure may shift depending on the nature of the interests protected by the specific exemption with respect to which a claim of foreseeable harm is made.”  “The purpose of the attorney-client privilege encompassed by Exemption 5, for example, is to provide an ‘assurance of confidentiality’ to clients, . . . such that disclosure of privileged information is a harm in and of itself.”  “When invoking the attorney-client privilege, then, an agency likely does not need to reach far beyond the fact of disclosure to show foreseeable harm.”  “By contrast, foreseeable harm under the deliberative process privilege requires the withholding agency to show more.”  “While the D.C. Circuit has yet to consider the adequacy of an agency’s foreseeable harm showing under the presidential communications privilege, Judges on this Court have consistently credited declarations describing the potential chilling effects on confidential and candid presidential decision-making as sufficient identification of foreseeable harm.”  “In this case, the agencies have made similarly adequate showings of foreseeable harm.”  “The White House Special Counsel’s affidavit clearly states that ‘release of the plans would impose a chilling effect on presidential decisionmaking, as such disclosure would hinder the ability of the President and senior presidential advisors to obtain frank, unfettered information and advice from Defendants and other Executive Branch agencies on important policy issues such as voting access.’”  “[T]he description provided in the affidavit of the ‘chilling effect on presidential decisionmaking,’ . . . is more than ‘generic’ or ‘boilerplate,’ . . . and thus sufficient to support the presidential communications privilege.”  “Finally, plaintiff argues that, at least concerning portions of the strategic plans describing existing agency actions, defendants have identified no cognizable harm because final and post-decisional information ‘could [not] possibly have any impact on confidential presidential decisionmaking.’”  “Again, this is inaccurate.”  “Factual portions of the strategic plans are thus ‘revelatory of the President’s deliberations’ and squarely protected by the presidential communications privilege.”  “Defendants have therefore met their burden of establishing that foreseeable harm to the interests protected by the presidential communications privilege would ensue if the strategic plans were disclosed, as required to withhold the documents pursuant to Exemption 5.”