Protect Democracy Project, Inc. v. DOJ, No. 20-172, 2021 WL 1167094 (D.D.C. Mar. 26, 2021) (Contreras, J.)

Protect Democracy Project, Inc. v. DOJ, No. 20-172, 2021 WL 1167094 (D.D.C. Mar. 26, 2021) (Contreras, J.)

Re:  Request for records concerning memorandum describing legal advice that government lawyers gave President's advisors about airstrike against Iranian general

Disposition:  Deferring ruling on parties' opposing summary judgment motions until in camera inspection

• Exemption 5, Other Privileges:  The court holds that "[t]here is little doubt that at least the presidential communications privilege covers the OLC Memo."  The court relates that the "Deputy Counsel to the President and Legal Adviser to the National Security Council, asked OLC to prepare the memo to memorialize advice the office had given the President and other senior officials prior to the strike."  The court finds that "[t]hat kind of advice is exactly the sort of communication the privilege is meant to shield."  The court relates that "[Plaintiff] does not disagree."  "Rather than dispute the appropriateness of any privilege individually, it counters that the OLC Memo should be made public either because it represents the Government's 'working law' or because the Government waived its privileges."  "The Court rejects the first argument, but it needs to review the OLC Memo before it can rule on the second."  The court explains that "[w]hile an agency bears the burden of demonstrating that a FOIA exemption applies, the requester bears the burden of establishing that the agency adopted a document as working law."  "[Plaintiff] has not met that burden."  "Given that only [the Defense Department General Counsel's] speech[, which plaintiff points to as support for its argument,] even mentions an OLC opinion and that the three statements [referenced by plaintiff] do not share much in common beyond high-level legal conclusions, it is far from 'evident' that the Executive Branch has adopted the memo's reasoning as its own." 
   
• Waiver and Discretionary Disclosure, Waiver:  However, the court finds that "[the Defense Department General Counsel] certainly quoted from some OLC document (or documents) in his speech."  "But whether he divulged the conclusions and reasoning of the memo dealing specifically with the strike against [the Iranian general] is a different question."  "[I]t may well be that the speech divulged some of the analysis contained in the OLC Memo."  However, "the Court lacks the information it needs to determine the extent to which [the Defense Department General Counsel's] speech disclosed the OLC Memo's contents, if at all."  "The Court has not reviewed the memo."  "And the Government has not provided a detailed enough declaration to help the Court make that determination."  "Its declaration provides only a one-paragraph summary of the memo's contents . . . before a brief passage on waiver that does not even mention the speech."  "Because the Government declaration is 'insufficiently detailed to permit meaningful review,' there is only one document at issue, and the waiver question 'turns on the contents' of the OLC Memo, the Court will order the Government to submit the memo for in camera inspection."