Leopold v. Dep’t of State, No. 18-1550, 2025 WL 622198 (D.D.C. Feb. 26, 2025) (Cooper, J.)

Leopold v. Dep’t of State, No. 18-1550, 2025 WL 622198 (D.D.C. Feb. 26, 2025) (Cooper, J.)

Re:  Request for records concerning decision to withdraw United States from Iran nuclear deal, as well as other topics such as former president’s son and assassination of senior Iranian official

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s cross-motion for summary judgment

• Exemption 5, “Inter-Agency or Intra-Agency” Threshold Requirement & Deliberative Process Privilege:  The court relates that “[t]he first category of materials that the agency withheld under the deliberative-process privilege includes ‘drafts of speeches, opinion-editorial articles for publication (‘op-eds’), correspondence, reports, and other material[.]’”  The court finds that “[t]he withheld records are predecisional, the Department tells us, because they do ‘not include the final version that was ultimately released to the public (if a final version was actually released),’ and ‘do not reflect the ultimate policy determination by the Department.’”  “They are deliberative because they were prepared to assist the Department in developing positions and strategies on a range of foreign policy matters, including ‘relations with Iran, Saudi Arabia, and Ukraine, as well as the Administration’s broader foreign policy.’”  “These explanations provide a sufficient logical and plausible link between the withheld draft materials and the Department’s predecisional deliberative process.”
  
  The court relates that plaintiff objects, arguing the idea of “[w]hether communications between an agency and a then-unconfirmed nominee to a high-level position within the agency can be shielded under the deliberative-process privilege.”  “As [plaintiff] points out, several withheld records include emails and other documents exchanged with members of teams tasked with helping former Secretary of State Mike Pompeo and former Deputy Secretary of State John Sullivan through their respective confirmation processes.”  “The Department confirmed that those records were sent to individuals outside the executive branch.”  “The Court will grant summary judgment to [plaintiff] as to these withholdings.”  “The State Department fails entirely to engage with [American Oversight v. Department of Health and Human Services, 101 F.4th 909 (D.C. Cir. 2024)’s] test for applying the consultant corollary.”  “It instead relies exclusively on a district court ruling in Judicial Watch, Inc. v. Department of State, 306 F. Supp. 3d 97 (D.D.C. 2018), to support its withholding.”  “The agency’s reliance on that case is misplaced because the court there applied the governing test prior to the D.C. Circuit’s clarifying ruling in American Oversight.”  “[T]he question is no longer whether the outsider and the agency share interests, but whether the outsider has interests of his own that would render his opinions ‘anything other than disinterested.’”  “The Department cannot plead ignorance of American Oversight’s prevailing standard.”  “[Plaintiff] raised American Oversight in his cross-motion for summary judgment, arguing that it requires the agency to disclose the communications with nominees because a nominee has a self-interested, independent stake in the confirmation process (namely, getting confirmed).”  “The Department even cited American Oversight in its reply for the proposition that [] D.C. Circuit case law recognizes the consultant corollary but failed to engage with it further.”  “Because [plaintiff] raised this argument in his motion and the agency squandered its opportunity to respond in its reply brief, the Court will treat it as conceded.”  “Given the Department’s concession, the Court will grant summary judgment to [plaintiff] as to these communications with nominees.”  “And because the Department asserts no other exemptions as to these records, the Court will order the agency to produce them.”
  
  “The second category of materials that the agency withheld under the deliberative-process privilege includes ‘talking points, recommendations, and suggested answers to potential questions – both in draft and “final” form[.]’”  “The Department properly withheld these materials.”  “They are predecisional because they predate agency officials’ final decisions of how to articulate the Department’s positions.” “They are also deliberative because they were ‘prepared to assist the authors’ supervisors and high-ranking officials of the Department in articulating the Department’s official policy[.]’”  “And they are intra- or inter-agency because they were not released outside the government.”  “[Plaintiff] raises two quibbles.”  “First, he points out that the Department failed to spell out the relationship between each record’s author and its recipients.”  “Maybe so.”  “But the agency made the important part clear:  [t]he recipients of these talking points were free to deviate from them and make decisions about how to articulate Department policy.” “[Plaintiff’s] second beef also misses the mark.”  “He argues that the Department may have shared talking points outside the executive branch by sending them to ‘surrogates.’”  “But the Department stated in its declaration that it did not share the talking points outside the executive branch.”  “That declaration is accorded a presumption of good faith, which cannot be rebutted by purely speculative claims[.]’”
  
  “The final category of materials withheld by the agency under the deliberative-process privilege is a catch-all category consisting of email exchanges between employees, employees’ calendar entries and invitations, and internal memoranda that reflect ‘internal deliberations between and among Department officials and other executive branch members regarding foreign policy decisions.’”  “Most of these withholdings are adequately explained.” “The agency explains that these internal communications and other documents were exchanged as part of the agency’s process for arriving at various decisions, such as policy decisions on Iranian and North Korean sanctions, . . . a possible response to a Wall Street Journal article, . . . and the agency’s position on the International Commission Against Impunity in Guatemala . . . .”  “These documents are therefore predecisional and deliberative.” “[Plaintiff] repeats that the agency failed to adequately identify the relevant decision that these records informed, but the Court disagrees.”  “For the reasons discussed above, the agency’s specification that these documents assisted the agency’s decision-making with regard to specific subject matters is sufficient for purposes of Exemption 5.”  “Finally, because these records were exchanged between executive-branch employees, they are either intra- or inter-agency.”
  
  “The Court, however, does agree with [plaintiff] that the agency failed to adequately identify the relevant decision for two records:  . . . a calendar invitation for a scheduled call[] and . . . a set of handwritten notes.” “Both Vaughn Index entries describe the documents as ‘deliberative with respect to a final decision regarding the Administration’s foreign policy.’”  “But given that the State Department’s raison d’être is developing the Administration’s foreign policy, that description amounts to no explanation at all.”  “Accordingly, the Court needs more from the agency to sustain these withholdings.”
  
  “The Court also agrees with [plaintiff] that the agency may have improperly withheld factual information.”  “The Department withheld material from the ‘background’ sections of two documents described as ‘information memorand[a.]’”  “[Plaintiff] argues that these withholdings include purely factual summaries of background information, which some courts have held cannot be shielded under the deliberative-process privilege.”  “This argument seems plausible to the Court.”  “The agency’s explanation of these withholdings comes up short.”  “[I]ts supplemental declaration failed to respond to [plaintiff’s] plausible charge that the background sections in these memoranda contain factual information that the agency could potentially disclose.”  “So while the Department adequately connected the memoranda themselves to deliberative processes, it did not adequately explain the background-section withholdings.”  “The Department must either produce the redacted background material . . . or re-move for summary judgment with a more detailed explanation that (1) addresses whether the agency withheld factual information . . . (and if so, why) and (2) identifies more precisely the decisions or decision-making processes informed by [the documents].”
   
• Exemption 5, Attorney-Client Privilege:  The court relates that “the Department also withheld under the attorney-client privilege emails between State Department employees ‘regarding a need to meet with the then-incoming Legal Adviser to obtain her legal advice[.]’”  Despite “[t]he State Department . . . not respond[ing] to [plaintiff’s] argument . . . in its reply brief,”  “the Court will not order production of these emails or rule on [plaintiff’s] objections.”  “The Department also invoked the deliberative-process privilege as to these emails, . . . and [plaintiff] does not challenge that invocation.”
   
• Exemption 5, Foreseeable Harm and Other Considerations; Litigation Considerations, Evidentiary Showing, Foreseeable Harm Showing:  The court relates that “[h]ere, the agency met its specific, contextual burden by first explaining in every entry in its Vaughn Index the role that each withheld document played in the agency’s decision-making.”  “It then explained that disclosing these records would hamper those policymaking or strategy decisions in the future because ‘line officers and subordinates would temper their opinions and discussions with the knowledge that their views and characterizations would be made public.’” “This kind of concrete showing satisfies FOIA.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  “Finally, the agency explained that it ‘conducted a line-by-line review of the documents at issue in this case and has segregated and released all reasonably segregable, non-exempt information.’”  “[Plaintiff] does not dispute the agency’s account.”  “The Court therefore finds that the agency produced all reasonably segregable materials.”