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Ctr. for Pub. Integrity v. DOD, No. 19-3265, 2020 WL 5095520 (D.D.C. Aug. 28, 2020) (Kollar-Kotelly, J.)


Ctr. for Pub. Integrity v. DOD, No. 19-3265, 2020 WL 5095520 (D.D.C. Aug. 28, 2020) (Kollar-Kotelly, J.)

Re:  Request for communications between DOD and OMB concerning DOD's Ukraine Security Assistance Initiative ("USAI")

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

  • Exemption 3 & Litigation Considerations, "Reasonably Segregable" Requirements:  The court relates that "[h]ere, Defendants withheld information pursuant to 10 U.S.C. § 130c which allows agencies to withhold 'from public disclosure otherwise required by law sensitive information of foreign governments in accordance with this section.'"  "Courts have found that 10 U.S.C. § 130c meets the requirements of FOIA Exemption 3, and Plaintiff does not contest the applicability of the statute."  "First, the Court finds that the withheld information meets the requirements of 10 U.S.C. § 130c, including the requirement that the information be sensitive."  "In support of their Motion, Defendants submitted a declaration explaining that the DOD 'withheld under Exemption 3 specific, sensitive information about the military equipment that Ukraine needed to fulfill its national security needs, the specification of equipment and associated costs.'"  "Additionally, because the information could 'reveal both Ukraine's capabilities and potential vulnerabilities, the Ukrainian government has informed the United States that Ukraine does not publicize such information and requested, in writing, that such information not be produced under the FOIA.'"  Second, "[h]aving reviewed Defendants' declarations, the Court concludes that all reasonably segregable, non-exempt information withheld under Exemption 3 was released to Plaintiff."  "Defendants have produced a declaration explaining that the 'DOD has conducted a page-by-page and line-by-line review of the 292 pages of documents at issue in this Declaration for reasonable segregation of non-exempt information and has determined that no further segregation of meaningful information in the redacted documents can be made without disclosing information entitled to protection under the FOIA.'"
  • Exemption 5:  Regarding "Plaintiff['s] argu[ment] that the Exemption 5 privileges 'are [not] absolute, and they must yield to the need for disclosure of government misconduct,'" the court notes that "it is not clear in this circuit whether a government misconduct exception may properly be invoked in a FOIA case."  "Assuming arguendo, for purposes of the discussion in this Memorandum Opinion, that the government misconduct exception applies to FOIA Exemption 5, the Court shall consider whether any misconduct alleged by Plaintiff satisfies the high standard for the exception."  The court notes that "[t]he relevant consideration for 'extreme government wrongdoing' sufficient to trigger the exception is the egregiousness of the contents of the discussion, not the egregiousness of the underlying conduct that the discussion concerns."  "The Court further notes that while there is some authority for applying the government misconduct exception to information withheld under the deliberative process privilege, Plaintiff did not cite and the Court did not find any authority for applying the government misconduct exception to information withheld under the attorney client privilege or under the presidential communications privilege in the context of FOIA."  "The Court finds that the first alleged aspect of misconduct – the OMB's violation of the Impoundment Control Act – is not sufficiently egregious or nefarious to meet the narrow standards for the government misconduct exception."  "Here, a report from the Government Accountability Office ("GAO") concluded that the OMB's apportionment with respect to the funds for Ukraine violated the Impoundment Control Act."  "The GAO's finding that OMB's apportionment actions violated the Impoundment Control Act is insufficient to show nefarious intent or extreme wrongdoing."  "The Court further notes that Plaintiff has not shown that the contents of Defendants' discussions were sufficiently egregious to trigger the exception."  "Discussions within the OMB and discussions with the DOD regarding apportionment of funds encompass one of the OMB's core responsibilities."  "Even if the ultimate decision as to the apportionment of the funds was found by the GAO to violate the Impoundment Control Act, it is not clear that the discussions themselves, considering different options for the release or delay of [certain] funding, were sufficiently egregious as to trigger the government misconduct exception."  "Plaintiff's second theory of government misconduct – that 'the suspension of military aid to Ukraine was a central element of the president's efforts to obtain political favors from Ukraine's government' – suffers from the same shortcoming."  "While such an allegation of misconduct may be sufficiently egregious, Plaintiff has failed to connect the withheld communications between the OMB and the DOD to the alleged presidential decision to delay funding to Ukraine in exchange for political favors."  "And, again, the relevant consideration for the government misconduct exception is the content of the discussions, not the 'egregiousness of the underlying conduct.'"

    Regarding the foreseeable harm requirements, "the Court concludes that the FOIA Improvement Act imposes a meaningful and independent burden on agencies to detail the specific reasonably foreseeable harms that would result from disclosure of certain documents or categories of documents."  "Reviewing the DOD's declaration, the Court finds that the DOD has categorized the withholdings under FOIA Exemption 5 and has explained the particular harm that would be caused by the release of the information in each category."  "The DOD did not present 'generic, across-the-board articulations of harm ... as to a broad range of document types.'"  'Instead, the DOD stated, in general terms, the content of each category of withholdings and explained how the release of the information would harm the decision-making process of the agency."  "As such, the Court finds that the DOD met the requirements under the FOIA Improvement Act."  For the same reasons, "the Court finds that the OMB, like the DOD, met the requirements under the FOIA Improvement Act."
  • Exemption 5, Attorney-Client Privilege:  "The Court reviewed Defendants' Vaughn index, the accompanying declarations, and many of the documents in camera."  First, responding to plaintiff's objection, "[t]he Court has determined that none of the withheld information creates a body of secret law."  "In determining whether a document is 'working law' requiring disclosure, the Court must consider 'the function and significance of the document in the agency's decisionmaking process, the nature of the decisionmaking authority vested in the office or person issuing the disputed document, and the flow of documents.'"  "Here, none of the withheld material constitutes a policy or a statement of law which was adopted by Defendants for regular use."  "Instead, much of the redacted material concerns circumstance-specific requests for legal advice involving the interpretation and the application of the law in the context of an on-going decision-making process concerning a particular issue."  "As such, Defendants are not precluded from invoking the attorney client privilege on the grounds that the withheld information constitutes secret law."  "Plaintiff's second argument, that the withheld communications do not involve legal advice, has more merit as to select documents."  "Some of the withheld communications do not involve the request for or the provision of legal advice."  The Court's determination as to which documents were rightfully withheld under this privilege [is explained in a listing]."
  • Exemption 5, deliberative Process Privilege:  "The Court begins with Plaintiff's argument that the vast majority of the withheld material is not predecisional because it post-dates the President's decision to withhold congressionally-approved aid to Ukraine."  "The Court finds that the fact that the withheld material was created after the President's alleged decision to withhold the USAI funds is not determinative of whether or not the material is predecisional."  "Plaintiff's argument fails to address the realities of agency decision-making."  "Courts recognize that '[a]gencies are, and properly should be, engaged in a continuing process of examining their policies' and that courts should be 'wary of interfering with this process.'"  "As such, even after the decision to delay . . . funding was made, both the DOD and the OMB 'faced multiple policy debates and decisions as to whether, where, and how to begin that process and how to achieve its success.'"  "As such, the Court concludes that Defendants do not face a categorical bar to the use of the deliberative process privilege simply because the majority of the documents may post-date the President’s alleged decision to withhold [the] funding."  "Instead, the Court must look to each incident of withheld material to determine if that material pre-dates an agency decision and was used as part of the decision-making process."  "The Court's determination as to which documents were rightfully withheld under this privilege [is explained in a listing]."
  • Exemption 5, Presidential Communications Privilege:  "First, [regarding] Plaintiff['s] conten[tion] that [one individual] fails to qualify as an advisor immediate enough to the President to warrant invocation of the presidential communications privilege," the court holds that "[b]ased on Defendants' declarations, and a lack of countervailing evidence from Plaintiff, the Court concludes that [the individual at issue] constitutes an 'immediate White House adviser[ ] . . . who ha[s] broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate' – aid to Ukraine."  "However, the Court notes that communications involving [this individual] will be protected under this privilege only insofar as they were obtained or solicited 'in the course of preparing advice for the President.'"  "Second, Plaintiff argues that 'all but five of the 24 documents withheld under the privilege were created after the last possible date the president made his decision to withhold Congressionally authorized Ukrainian aid.'"  "As a result, according to Plaintiff, any documents which post-date the President's decision cannot have been a part of the President's decision-making process and were wrongfully withheld."  "The Court addressed and declined to follow a very similar argument concerning the deliberative process privilege."  "As was previously explained, even after a decision is made, 'redaction of material that discusses how the current policy is implemented and potential recommendations for changes are properly characterized as' implicating the decision-making process."  "'For this reason, documents dated after one decision has been made may still be' related to the President's decision-making process."  "The Court [then] turns to Plaintiff’s third argument – whether or not the withheld material truly implicates the President's decision-making process."  "The Court finds that some of the withheld communications are not protected by the privilege as they merely reference communication with the President by others and do not implicate the decision-making process."  "The Court's determination as to which documents were rightfully withheld under this privilege [is explained in a listing]."
  • Exemption 6:  The court notes that plaintiff challenges only the withholding of two subject lines which state "'Apportionment sent to Agency after Approval from [redacted (b)(6)].'"  "Plaintiff posits that the redaction refers to the name of an official with the authority to approve the apportionment and should not be withheld."  "Defendant counters that there is no genuine issue as to the challenged redactions because '[a]s the documents make clear on their face, the withheld information in the subject line is an email address in both instances.'"  "Having considered Defendants' argument and its Vaughn Index, and lacking any counter-argument from Plaintiff, the Court concludes that Defendants rightfully withheld [this material] under FOIA Exemption 6 . . . ."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  "Having reviewed Defendants' declarations and many of the documents in camera, the Court is satisfied that no reasonably segregable information has been withheld under FOIA Exemption 5."  Additionally, [h]aving reviewed Defendants' declarations, the Court is satisfied that no reasonably segregable information has been withheld under FOIA Exemption 6."
Court Decision Topic(s)
District Court opinions
Exemption 3
Exemption 5
Exemption 5, Attorney-Client Privilege
Exemption 5, Deliberative Process Privilege
Exemption 5, Other Considerations
Exemption 6
Litigation Considerations, “Reasonably Segregable” Requirements
Updated November 10, 2021