Energy Pol’y Advocs. v. U.S. Dep’t of State, No. 19-03307, 2023 WL 4198200 (D.D.C. June 27, 2023) (McFadden, J.)

Energy Pol’y Advocs. v. U.S. Dep’t of State, No. 19-03307, 2023 WL 4198200 (D.D.C. June 27, 2023) (McFadden, J.)

Re:  Request for records concerning handling of 2016 Paris Climate Agreement

Disposition:  Granting defendant’s motion for summary judgment

• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  The court holds that “State has established that the redacted content in the three documents is both pre-decisional and deliberative.”  “First [the court] consider[s] the action memo and its attachment.”  “Subordinate State Department employees sent the memo to the Secretary requesting his sign-off to accept the Paris Climate Agreement.”  “State released ‘purely factual’ portions, and information that ‘encompass[es] the final decision reached.’”  “But it withheld parts in each document that subordinates drafted ‘for the Secretary to consider in making his decision’ to sign the memo.”  “These withheld portions distill the thoughts of State employees about the merits or drawbacks of the suggested action.”  “And they involve subordinates’ ‘selection and analysis of facts’ for the decision-maker.”  “One handwritten part specifically says it awaits a ‘final decision.’”  “And another describes ‘with specificity, a potential course of action . . . that was ultimately decided against.’”  “State has shown that the information in these two documents predated the Secretary’s decision to sign the memo and that it informed his decision.”  “That the documents flowed from subordinates to the Secretary who makes the final call bolsters the conclusion that they are pre-decisional and deliberative.”  “Next [the court] consider[s] the draft talking points.”  “An attorney at State without final decision-making authority prepared these for the National Security Council.”  “At this point, the United States had not yet entered the Paris Climate Agreement.”  “The talking points provide ‘initial guidance’ about describing to a foreign counterpart the ‘domestic legal process for the United States to enter into an international agreement.’”  “And they highlight the ‘potential framing of key issues,’ plus ‘rejoinders to hypothetical arguments that other interlocutors may make.’”  “This document is pre-decisional because it predates the meeting for which it was prepared.”  “And it is deliberative because it helped the National Security Council members prepare for any final statements they may have made at the meeting.”  “State has adequately justified its withholdings of the talking points.”
  
  “Next up is foreseeable harm.”  “State explains that disclosure of advice that subordinates provided to the Secretary would chill internal deliberations about future agreements if subordinates knew that the public, including foreign adversaries, could access that information.”  “Such a chilling effect would degrade the quality of advice the Secretary receives when considering whether to enter future agreements.”  “More, disclosure of advice in the memo and its attachment could cause public confusion because portions reflect a course ultimately not adopted.”  “Similarly, State explains that redactions in the draft talking points ‘do not reflect final Department policy.’”  “So their disclosure would ‘chill the flow of internal recommendations, candid assessments, and other necessary exchanges,’ hampering information flow.”  “State notes that the harm would be ‘especially pronounced here given the highly sensitive nature of’ what legal form the Paris Agreement should take.”  “More, release of a subordinate lawyer's opinions and ideas ‘would cause public confusion’ about whether information they contain was a final decision.”  “As State explains, the final decision-makers in the National Security Council who received the draft talking points could have used or jettisoned them.”  “State meets its foreseeable harm burden for all three redacted documents.”  Additionally, the court relates that “Plaintiff claims that different agencies have released other action memos publicly, so releasing this one would not cause harm.”  The court finds that “[m]aybe so, but that has little bearing on whether State fails to show foreseeable harm for Paris Agreement memo. It does not follow that because other agencies have voluntarily released similar memos, State should be compelled to release the action memo here.”
  
  “Plaintiff raises several counterarguments, but none persuade.”  “First, Plaintiff protests that because the Secretary signed the memo, it must be released in full.”  “This is so because a document that is pre-decisional when prepared ‘can lose that status if it is adopted, formally or informally, as the agency position[.]’”  “But as State explains, the Secretary’s signature reflects only approval of the memo’s request to join the agreement – an official thumbs up.”  “It begins with two top-line recommendations:  that the Secretary sign (1) the 2016 Paris Climate Agreement and (2) the ‘Instrument of Acceptance.’”  “Lines asking the Secretary to either ‘approve’ or ‘disapprove’ these recommendations using his signature fall just below.”  “The Secretary initialed both ‘approve’ lines.”  “All of that information has been released.”  “But State’s redactions are different because they encompass advice from subordinates teeing up the ultimate decision.”  “While the Secretary agrees with the conclusion of the memo, his signature does not necessarily endorse his subordinates’ preliminary advice – some of which he actually rejected.”  “So the Secretary did not ‘adopt[ ], formally or informally,’ the redacted recommendations of his staff.”  “Second, Plaintiff argues that the memo's contents must be released under the related ‘working law’ doctrine.”  “But the memo does not meet the high bar of ‘working law,’ defined as a ‘conclusive or authoritative statement of [agency] policy, usually a higher authority instructing a subordinate on how the agency’s general policy applies to a particular case, or a document that determined policy or applied established policy.’”
   
• Exemption 5, Attorney-Client Privilege & Foreseeable Harm and Other Considerations:  The court holds that “State properly justified its attorney-client privilege withholdings.”  “It withheld parts of the action memo and background document under this privilege, plus all of the draft talking points.”  “First, the action memo and attachment.”  “State noted they contain ‘legal analysis and advice’ from State’s attorneys to inter-agency clients about the Paris Agreement and acceptance of it.”  “The background document contains more of the same.”  “And they ‘include facts divulged to one or more attorneys for the purpose of obtaining legal advice.’”  “Releasing this information would reveal the legal questions the agency clients had, plus information provided to attorneys so they could provide answers.”  “State also attests that all redacted legal advice ‘was kept confidential within the executive branch.’”  “Those assertions, plus the presumption of good faith the Court affords agency declarations, more than establishes the privilege.”  “Second, the talking points.”  “State explains that the National Security Council asked an attorney-advisor for State to prepare them.”  “That attorney then sent talking points providing legal advice about the background and domestic legal process through which the United States may join the Paris Agreement.”  “State again reassures that all redacted legal advice ‘was kept confidential within the executive branch.’”  “These assertions also establish the privilege; the draft talking points involve legal matters for which one agency ‘has sought professional advice’ from State’s attorneys.”
  
  “State also meets its foreseeable harm burden.”  “[A]s this Court has explained, an agency’s foreseeable harm burden ‘may be more easily met when invoking other privileges . . . for which the risk of harm through disclosure is more self-evident and the potential for agency overuse is attenuated.’”  “The attorney-client privilege falls within this category.”  “Releasing attorney-client communications ‘would undoubtably undermine our legal culture’ because agencies ‘would lose an important tool in their decisionmaking process – employees’ ability to confidentially consult agency lawyers.’”  “The law therefore ‘already acknowledges and guards against the risk of harm that would come from disclosing attorney-client communications.’”  “State has articulated a persuasive description of that risk.”  “The record shows that disclosure of the redactions would impair the relationship of trust between an agency and its attorneys.”  “And it would ‘undermine the ability and willingness of executive branch officials to seek legal advice before making decisions about issues with significant legal ramifications.’”  “More, as State’s declarant explains, receiving legal advice as part of an action memo is ‘essential to appropriately entering into an international agreement.’”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The court holds that “State declares that it conducted ‘line-by-line review’ of each document before determining that no more information could be segregated and released.”  “These sworn statements are presumed accurate.”  “The Court thus finds that State has met its burden.”