Prop. of the People v. OMB, No. 17-1677, 2019 WL 3891166 (D.D.C. Aug. 19, 2019) (Contreras, J.)

Prop. of the People v. OMB, No. 17-1677, 2019 WL 3891166 (D.D.C. Aug. 19, 2019) (Contreras, J.)

Re:  Remaining challenge to withholding of eight calendar entries related to meetings of National Security Council

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

• Exemption 5, Presidential Communications Privilege:  "[B]ecause the NSC is a purely advisory entity with no meaningful role apart from the White House, . . . [defendant's] declaration and the Vaughn index are enough to demonstrate that the eight meetings were communications solicited and received by immediate White House advisers 'in the course of preparing advice to the President . . . .'"  "OMB has accordingly met its burden of showing that the calendar entries corresponding to the meetings fall within the scope of the presidential communications privilege."  "The entries are thus exempt from disclosure under FOIA Exemption 5."  The court relates that "[h]ere, OMB does not assert that the eight NSC meetings constitute communications that actually reached the President."  "The agency concedes that the President did not himself attend the majority (and maybe all) of the eight meetings."  "Rather, most of these meetings, OMB says, involved the NSC's Principals Committee . . . or Principals Small Group . . . – which are the 'Cabinet-level senior interagency forum[s] for considering policy issues' affecting national security . . . ."  "Notwithstanding the President's absence, OMB contends that the eight meetings are privileged because the NSC is, by its nature, a body whose sole purpose is to advise the President."  "Consequently, any NSC meeting, OMB argues, is a communication 'solicited and received' by the President’s immediate advisers."  "First, though not dispositive, OMB is correct that the NSC and its subcommittees exercise no 'meaningful non-advisory authority.'"  "Second, the structure and composition of the NSC leave little doubt that the meetings fall within the ambit of the presidential communications privilege."  "Those meetings are clearly privileged, as they constitute policy-oriented 'communications directly involving . . . the President.'"  "Third, the Court thinks it relevant that the D.C. Circuit has held that the NSC is not itself an 'agency' subject to FOIA."  "[I]t matters here that a member of the public could not obtain the NSC's schedule directly from the NSC."  "[F]ourth and final reason for granting OMB's motion, which is that application of the presidential communications privilege to these specific records is consistent with the privilege's underlying purpose."  "Each calendar entry at issue may contain a minimal amount of information, but the nature of the information has the potential to be quite revelatory."  "The privilege is rooted in the need 'for confidentiality to ensure that presidential decisionmaking is of the highest caliber, informed by honest advice and full knowledge.'"  "And that confidentiality must be extended to the President's immediate advisers (like the National Security Advisor and Homeland Security Advisor) because 'potential exposure of the information in the possession of an adviser can be as inhibiting as exposure of the actual advice she' ultimately gives to the President."