Cause of Action Institute v. DOJ, No. 17-1423, 2018 WL 4374922 (D.D.C. September 13, 2018) (Boasberg, J.)

Cause of Action Institute v. DOJ, No. 17-1423, 2018 WL 4374922 (D.D.C. September 13, 2018) (Boasberg, J.)

Re:  Request for records pertaining to a congressional committee's instruction to agencies to withhold certain records in response to FOIA requests

Disposition:  Granting in part and denying in part the parties' motions for summary judgment

• Exemption 5, Attorney-Client Privilege: Regarding application of this privilege to an email between the White House and OIP, the court explains, "[n]owhere does the White House directly ask for legal advice in the email, nor [can] any other statement . . . be fairly construed as a solicitation of legal counsel."  The email begins with "FYI," which "gives the email the appearance of a simple alert to another government employee."  The court finds that the fact that OIP routinely "[provides] legal advice is insufficient where, as here, the provision of legal services is not the office's sole duty."  The court finds that "the email's language cuts against any inference that the communication primarily concerned a request for legal counsel, rather than mere coordination on strategy or policy."  The court also finds that the redactions and redacted letter do not reveal any "confidential information concerning the [a]gency."  As to another document set , the court finds that some emails between an agency and various DOJ offices "contain a clear request for advice" and "at least some of the communications divulge confidential agency information in the request for legal advice."  The court finds "that the privilege extends to the draft attachment" and the identity of the agency seeking legal advice.  
   
• Exemption 5, Deliberative Process Privilege: As to the DOJ-White House communications, the court finds that this privilege does not apply because "nothing in the redacted portions . . . reflect anything that can even be construed as a personal opinion of an agency official" and it does not reveal anything about the deliberative process.