Protect Democracy Project, Inc. v. NSA, No. 17-1000, 2020 WL 1078965 (D.D.C. Mar. 6, 2020) (Kollar-Kotelly, J.)

Protect Democracy Project, Inc. v. NSA, No. 17-1000, 2020 WL 1078965 (D.D.C. Mar. 6, 2020) (Kollar-Kotelly, J.)

Re:  Request for memorandum memorializing telephone conversation between President Donald Trump and former NSA Director Admiral Michael Rogers

Disposition:  Ordering in camera inspection of one memorandum

• Litigation Considerations, In Camera Inspection:  The court holds that "making a responsible de novo determination of NSA's exemption claims requires in camera review."  The court relates that "[defendant] primarily argues that [the] Memorandum [at issue] was properly withheld under FOIA Exemption 5 because it is protected by the presidential communications privilege."  The court finds that "[i]t is true that in camera review should not be done as a matter of course, especially in cases like this one, where the declarations indicate that discussions regarding national security issues are memorialized in the . . . Memorandum."  "However, the statements in the affidavits recited above are too broad and vague to determine whether the . . . Memorandum, or portions of it, were properly withheld."  "Nor is it clear how additional affidavits would correct this issue with sufficient specificity in light of the parties' arguments."  "For example, the Court must consider whether the relevant information in the . . . Memorandum has been officially acknowledged, which requires close comparison of the relevant information disclosed in the Mueller Report and the relevant information contained in the . . . Memorandum."  "The affidavits do not provide enough detail on the latter for the Court to make a responsible de novo determination."  "Revealing enough of those contents via additional affidavits filed on the public docket to facilitate that determination may not be possible and is also problematic for the same reasons that NSA argues the memorandum should be withheld."