Cause of Action Inst. v. U.S. Dep't of Com., No. 19-00778, 2021 WL 148386 (D.D.C. Jan. 14, 2021) (Nichols, J.)

Cause of Action Inst. v. U.S. Dep't of Com., No. 19-00778, 2021 WL 148386 (D.D.C. Jan. 14, 2021) (Nichols, J.)

Re:  Request for report prepared for the President regarding national-security impact of importation of passenger vehicles and automobile parts

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

• Exemption 5, "Inter-Agency or Intra-Agency" Threshold Requirement:  The court "holds that the Automotive Report meets the threshold requirement of being an inter-agency or intra-agency memorandum or letter under Exemption 5 of the FOIA."  The court relates that "courts in this District have concluded that documents exchanged between an Executive Branch agency and the President and his close advisors qualify as inter-agency or intra-agency memorandums or letters."  The court highlights the D.C. Circuit's "functionalist approach to the intra- and inter-agency requirement, [and that the Court of Appeals for the District of Columbia Circuit] found it "'inconceivable'" that "'Congress intended Exemption 5 to protect the decision-making processes of the Executive Branch when the decision is made by "agency" officials subject to oversight by the President and not when the decision is to be made by the President himself and those same agency officials acting in aid of his decision-making processes.'"
   
• Exemption 5, Other Privileges:  "The Court . . . concludes that the presidential communications privilege applied to the Report prior to the enactment of the 2020 Appropriations Act."  The court finds that "[t]he Report is a confidential memorandum from the Secretary to the President, containing the Secretary's advice on decisions delegated to the President by statute."  "The Report was prepared for the President after he requested the Secretary to consider initiating a Section 232 [of the Trade Expansion Act of 1962 which delegates some of that authority to the President, allowing the President to modify imports to ensure that domestic industrial capacity remains sufficient to safeguard the national security] investigation into automobiles and automobile imports."  "The President relied on the Report in deciding that the current rate of importation and circumstances surrounding the importation of automobiles and automobile parts posed a threat to the national security, and in directing the U.S. Trade Representative to negotiate agreements with the European Union, Japan, and other nations [in] response to the threat."  Responding to plaintiff's first objection, the court finds that "[c]ourts in this district have therefore consistently refused to narrow the scope of the privilege to only communications relating to the President's exercise of core Article II powers."  Responding to another of plaintiff's objections, the court finds that, "[b]ased on the harms that could result from releasing the report during trade negotiations, the absence of a deadline for disclosure of the Secretary's report in Section 232, and past practice in delaying the release of a Section 232 report until after trade negotiations have concluded, the Court concludes that the Executive Branch has a legitimate and significant confidentiality interest in delaying the publication of the Report until the President has addressed the national security concerns raised in it."  Finally, responding to plaintiff's final objection, the court finds that "[w]hether the Report is subject to the presidential communications privilege does not (and cannot) hinge on whether the President solicited the Report in the express manner provided by the Act [at issue]."  "[Plaintiff] has cited no authority standing for the proposition that the President must make a formal request in order for a Section 232 report to qualify for the presidential communications privilege."  "In any event, here the President 'instructed' the 'Secretary to consider initiating a Section 232 investigation' into the importation of automobiles and automobile parts."
   
  Additionally, "[t]he Court holds . . . that [the later-imposed requirement of Section 112 of the 2020 Appropriations Act, which expressly directs the Secretary to publish the Report within thirty days of the enactment of the Act, that is, by January 19, 2020,] . . . does not diminish the privilege in the context of FOIA."  "The remaining question is whether Congress's subsequent action in the 2020 Appropriations Act – which provided a date certain (January 19, 2020) for public disclosure of the Report – affects the analysis and makes Exemption 5 inapplicable here."  "The Court concludes that it does not."  The court finds that "[w]hen the Report was prepared, Section 232 did not require that it be published by a particular date."  "The Secretary was therefore able to provide his findings and recommendations to the President knowing that the Report would not become public before its advice and recommendations were acted upon."  The court finds that "the Executive Branch could not avoid the immediate publication condition (if it deemed the condition too arduous) by not initiating a Section 232 investigation."  "Instead, Section 112 is mandatory, and in any event, it is backward looking, requiring the publication by a specific date of a report that the Executive Branch had already created before that deadline existed."  "Congress cannot override the presidential communications privilege in the FOIA context by imposing a mandatory, retroactive condition on a grant of authority that the Executive Branch has already executed."
   
• Waiver & Discretionary Disclosure, Waiver:  Regarding plaintiff's argument that "Commerce waived its right to claim an exemption when the President publicized aspects of the Report by directly quoting from and summarizing portions of it in the presidential proclamation," the court notes that "[i]n the interest of resolving the dispute, Commerce has agreed to treat the presidential proclamation's direct quotes of the Report as waived, and to release those portions of the Report to Plaintiff."  However, "as to the remainder of the Report, . . . [t]he Court has reviewed the Report in camera, and the presidential proclamation's brief summary of the findings and recommendations in the Report were not made in terms that match exactly the unredacted information contained in the Report."
   
• Litigation Considerations, "Reasonably Segregable" Requirement:  "The Court concludes that the segregability requirement is satisfied with respect to the Report."  "Commerce has demonstrated 'with reasonable specificity' that the information withheld could not be further segregated."  "Any disclosure of exempt information would have resulted in the disclosure of 'a meaningless set of words or phrases which have no or minimal information content.'"