Cause of Action Inst. v. U.S. Dep’t of Com., No. 19-2698, 2022 WL 4130813 (D.D.C. Sept. 12, 2022) (Friedrich, J.)

Cause of Action Inst. v. U.S. Dep’t of Com., No. 19-2698, 2022 WL 4130813 (D.D.C. Sept. 12, 2022) (Friedrich, J.)

Re:  Requests for records concerning Section 232 of Trade Expansion Act

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

• Litigation Considerations, Standing:  First, the court holds that “[plaintiff] has satisfied [the standing] requirement by adequately alleging that it ‘is likely to be subject to the same deprivation of access in the future.’”  “[Plaintiff] is a ‘frequent FOIA requester[ ],’ . . . and it intends to continue requesting Section 232 reports in the future.”  “And at the same time, it alleges that Commerce will continue to delay the release of all Section 232 reports under claims of executive privilege.”  “Because [plaintiff] has ‘alleged a continuing injury due to this practice,’ its ‘facial challenges are not moot.’”  Second, the court holds that “[plaintiff’s] policy-or-practice claim is ripe for judicial review.”  The court finds that “[plaintiff] alleges that ‘Commerce maintains a policy and practice of withholding in full and delaying the production of Section 232 reports until such time as directed by the White House to release the records.’”  “That allegation requires no speculation about future application, nor does it depend on the facts of a particular case.”  “Rather, [plaintiff] contends that Commerce responds to all FOIA requests for Section 232 reports the same way: by withholding them until the President says otherwise.”  “Such a case ‘presents a concrete legal dispute; no further factual development is essential to clarify the issues.’”
   
• Litigation Considerations, Pattern-or-Practice Claims & Exemption 5, Other Privileges:  The court relates that “[plaintiff] alleges that Commerce has a policy or practice of withholding Section 232 reports under FOIA Exemption 5.”  “It points to three examples in which Commerce invoked Exemption 5 in response to [plaintiff’s] requests . . . .”  “But [the court finds that] even assuming that Commerce does have such a practice, the Court finds that it does not constitute a failure to abide by the terms of FOIA.”  The court relates that “Commerce first invoked the presidential communications privilege in response to [plaintiff’s] FOIA request for the Uranium Report[, “‘the Commerce Secretary’s final report to the President regarding the Section 232 Investigation on the Effect of Imports of Uranium on the National Security’”].”  The court holds that “[t]he Uranium Report falls squarely within this privilege.”  “It is a confidential report from a Cabinet Secretary to the President, created to advise him on matters of national security and ‘made in the process of shaping policies and making decisions.’”  “And the reports include the Secretary’s ‘findings’ and ‘recommendations’ for what the President should do.”  “Thus, as another judge in this District recently concluded, Section 232 reports constitute ‘confidential memorand[a]’ ‘containing the Secretary’s advice on decisions delegated to the President by statute’ and upon which the President ‘relie[s]’ in making policy concerning the nation’s security.”  “Almost by definition, then, it constitutes a communication covered by the presidential communications privilege.”  The court holds that “[plaintiff’s] four arguments to the contrary are unpersuasive.”  “First, even assuming [plaintiff] is correct that the President does not ‘solicit’ Section 232 reports, that would not mean that the reports are not covered by the presidential communications privilege.”  “‘[C]ommunications “directly involving” the President . . . are entitled to the privilege, regardless of whether the President solicited them.’”  “Second, whether the President’s review of the Uranium Report implicates an ‘inherent Article II power,’ . . . does not change the Court’s analysis.”  “That argument ‘misapprehends the scope of the presidential communications privilege.’”  “Because the President must ‘take care that the laws be faithfully executed,’ . . . including laws that do not implicate a core Article II power, such a rule would inevitably work to deprive the President of candid advice and criticism when faithfully executing some laws but permit it when taking care to implement others.”  “Instead, the key limiting principle is that ‘[t]he presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President.’”  “Here, the President's statutory responsibility to review and act on the Uranium Report makes it a communication that necessarily involves his direct decisionmaking.”  “Thus, the presidential communications privilege applies.”  “Third, [plaintiff] argues that Section 232’s publication requirement ‘limit[s] the reach of the privilege.’”  “But the statute does not mandate publishing the report before the President has concluded his decisionmaking.”  “Fourth and finally, [plaintiff] argues that the President does not have a confidentiality interest in the Uranium Report.”  “According to [plaintiff], because the Secretary knows that Section 232 reports must be published eventually, confidentiality is ‘impossible’ and the whole reason for having a privilege is undermined.”  “This contention is both an overstatement and an understatement.”  “It first overstates Section 232’s reporting requirement:  as discussed, there is no express deadline for publication.”  “At the same time, [plaintiff] construes the privilege too narrowly, such that it is no longer ‘consistent with ensuring that the confidentiality of the President’s decisionmaking process is adequately protected.’”  The court finds that “‘[i]f these materials are not protected by the presidential privilege’ even temporarily, ‘the President’s access to candid and informed advice could well be significantly circumscribed.’”  “This is true even if the report must be published eventually.”  “One can imagine that the Secretary would draft a report, especially one dealing with sensitive national security and foreign relations issues, differently if he expected the report to be published while the President was still navigating those issues, as opposed to after-the-fact.”  The court relates that “[plaintiff] objects that there is no such thing as a ‘temporary’ presidential privilege.”  “This contention misses the mark, because even privileged materials are sometimes subject to FOIA.”  “‘[U]nder the FOIA Improvement Act of 2016, the government may not withhold even . . . privileged materials unless it also “reasonably foresees that disclosure would harm an interest protected by” the FOIA exemption.’”  “Once the ‘foreseeable harm’ to presidential decisionmaking and/or national security has subsided, FOIA and Section 232 may well require releasing the documents.”  “That a document may be privileged and covered by a FOIA exemption at one point in time, but subject to FOIA release at another time, is not a novel concept.”