Protect Democracy Project, Inc. v. NSA, No. 17-1000, 2020 WL 1331996 (D.D.C. Mar. 23, 2020) (Kollar-Kotelly, J.)

Protect Democracy Project, Inc. v. NSA, No. 17-1000, 2020 WL 1331996 (D.D.C. Mar. 23, 2020) (Kollar-Kotelly, J.)

Re:  Request for records concerning contacts between NSA and others relating to potential Russian involvement in 2016 national election

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

• Exemption 5, Presidential Communications Privilege:  "[T]he Court's in camera review of [a memorandum drafted by former Deputy Director of the NSA ("Ledgett Memorandum")] demonstrates that the conversation memorialized in the Memorandum involved advice solicited by, and provided to, the President that directly related to presidential decision-making with respect to foreign relations and intelligence-gathering activities."  "Such decisions are important presidential functions, and deliberations about these decisions and activities are among those principally protected by the presidential communications privilege."  "At bottom, the Ledgett Memorandum is a document 'that reflect[s] presidential . . . deliberations and that the President believes should remain confidential.'"  "'Disclosure of the [Ledgett Memorandum] would reveal the President's deliberations.'"
  
  Regarding plaintiff's argument that government misconduct may have overcome the privilege, the court finds that "while the D.C. Circuit suggested that (outside the FOIA context) the deliberative process privilege 'disappears altogether' if 'there is any reason to believe government misconduct occurred,' it did not say the same in the context of the presidential communications privilege."  "Instead, it focused on the requirement for showing an adequate need for the withheld documents, even when there are allegations of misconduct."  "This focus, and the subsequent discussion and citations, appear to suggest that any government misconduct exception does not apply in the same form – or with the same force – to the presidential communications privilege; it is instead part of the determination of whether there is a need sufficient to overcome the privilege."  "However, as noted above, the D.C. Circuit has found that no need can overcome the presidential communications privilege in the FOIA context 'because the particular purpose for which a FOIA plaintiff seeks information is not relevant in determining whether FOIA requires disclosure.'"  "At bottom, in light of precedent (and the lack thereof), [plaintiff's] brief invocations of this exception without further explanation is insufficient to convince the Court that extending any potential government misconduct exception to this context is appropriate."  "Although the Court recognizes [plaintiff's] concern that withholding of documents may be used to shield government wrongdoing, the Court declines to extend the exception here."
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  Regarding the presidential communications privilege, the court finds that "the D.C. Circuit has consistently explained that '[o]nce the privilege applies, the entirety of the document is protected.'"  The court holds that "as the doctrine currently stands, the entire Memorandum here is protected from disclosure under the presidential communications privilege."
   
• Waiver:  First, "the Court rejects [plaintiff's] argument that part of the Ledgett Memorandum can be released via a segregability analysis."  Plaintiff bases this argument on the idea that "at least some of that information . . . has already been officially disclosed."  "As the Court noted above, however, documents properly withheld under the presidential communications privilege are generally withheld or released in full."  "The Court consequently considers [plaintiff's] request for the Ledgett Memorandum in full."  The court finds that based on "the Court's in camera review of the Ledgett Memorandum, the information disclosed and released in the Mueller Report is not sufficiently specific."  "In other words, the information requested by [plaintiff] – the Ledgett Memorandum – is not as specific as the information previously disclosed and released in the Report."  "The Mueller Report's description of the phone call and resulting Memorandum is not as comprehensive as the Ledgett Memorandum itself; the Memorandum contains a significant amount of information that was not included in the Mueller Report."