American Center for Law and Justice v. Dep't of State, No. 16-1355, 2018 WL 4308573 (D.D.C. September 10, 2018) (Kelly, J.)

American Center for Law and Justice v. Dep't of State, No. 16-1355, 2018 WL 4308573 (D.D.C. September 10, 2018) (Kelly, J.)

Re:  Records relating to a portion of a video of a press briefing held by the State Department

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court finds that State properly asserted this privilege for fourteen of sixteen documents, but the court does not have sufficient information to determine whether the privilege applies to the remaining two documents.  The court holds that documents properly withheld include an "email thread containing a discussion of press strategy on Iran-related topics in preparation for its press briefing later that day," emails "containing discussions about how to respond to [a reporter's] inquiry," draft talking points "prepared 'in advance of’ the press briefings . . . [that] represent [Near Easter Affairs (NEA's)] press-related recommendations to the [Bureau of Public Affairs (PA)], which makes the 'final decision,'" and a "draft list of issues . . . [containing] 'topics on which PA was seeking talking points.'"  The court explains it needs additional information from State to determine whether the privilege applies to a "redacted email in which Trudeau confirmed to her colleagues that she had spoked to [the reporter]" and an "email thread in which PA officials discuss a news report about the edited video."   
   
• Procedural Requirements, Segregability:  The court is satisfied that State "has provided all reasonably segregable material."  State "has stated that the 'factual material in these documents' is 'embedded in the opinions and recommendations on how State should respond to ongoing inquiries.'"  
   
• Exemption 5, Presidential Communications Privilege:  The court holds that State properly asserted this privilege for a document "that reflects communications involving NSC [officials] about press guidance and strategy related to Iran."  The court rejects plaintiff’s arguments that "only the President may invoke the privilege" or "'only a high ranking official and/or a party to the relevant communication [can invoke] the privilege.'"  However, the court finds that State's "bare bones descriptions of the contents of the withheld material – that it relates to the timing and subject of a 'meeting' – is insufficient for the Court to determine whether the presidential communications privilege applies to it."