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Protect Democracy Project, Inc. v. NSA, No. 20-5131, 2021 WL 3729678 (D.C. Cir. Aug. 24, 2021) (Pillard, J.)


Protect Democracy Project, Inc. v. NSA, No. 20-5131, 2021 WL 3729678 (D.C. Cir. Aug. 24, 2021) (Pillard, J.)

Re:  Request for memorandum drafted by NSA Deputy Director memorializing what was said on phone call he participated in with President and NSA Director

Disposition:  Affirming district court's grant of government's motion for summary judgment

  • Exemption 5, Other Privileges:  The Court of Appeals for the District of Columbia Circuit holds that "[its] own in camera review of [the] memo confirms it was properly withheld pursuant to FOIA Exemption 5."  "The Memo memorializes a phone call that was initiated by the President in which he discussed and sought information relevant to his deliberation over issues connected to foreign relations and intelligence-gathering."  "Such a document falls squarely within the scope of the presidential communications privilege for two main reasons."  "First, the memo 'reflect[s] presidential decisionmaking and deliberations.'"  "Its disclosure 'would reveal the President's deliberations.'"  "[The] memo documents a conversation in which President Trump was himself a direct participant . . . ."  "Records of what was said by or directly to the President lie at the heart of the presidential communications privilege."  "Second, the conversation memorialized in [the] memo concerns 'the President's Article II powers and responsibilities,' which form 'the constitutional basis of the presidential communications privilege.'"  "As described in an NSA declaration, '[the NSA Director at the time] provided the President with information and analysis based on specific NSA intelligence . . . in the context of a conversation related to national security and foreign affairs.'"  "Even the Mueller Report, which investigated the call in relation to concerns about potential obstruction of justice, establishes that Trump and [the NSA Director at the time] discussed matters of foreign relations."  "Those issues implicate the President's responsibilities and his legitimate interest in confidentiality."

    The court relates that "[o]n appeal, [the requester] argues that a record exempt from disclosure under FOIA on the basis of the presidential communications privilege, but that arguably contains nonprivileged information, should be reviewed to determine whether the nonprivileged information can be segregated and released."  The court finds that "[t]he problem for [the requester] is that, under existing precedent, the presidential communications privilege 'applies to documents in their entirety.'"  "Even accepting, then, [the requester's] claim that portions of [the] memo would not be privileged if they existed in isolation, they are nonetheless not segregable under FOIA as part of the memo – a document made to memorialize only one conversation and that, based on [the court's] in camera review, otherwise falls squarely within the scope of the privilege."

    "Alternatively, [the requester] asserts that segregability should be allowed where those portions of a record not protected by the privilege are credibly alleged to concern presidential misconduct."  The court finds that "[t]here is no precedent binding on this court that recognizes the misconduct exception [the requester] proposes."  The court relates that "[the requester] insists that, in asking [the court] to craft a special segregability rule in cases involving credible allegations of misconduct, it does not seek to overcome the privilege – it seeks access only to those parts of a record that are not privileged."  "But insofar as the memo is protected – meaning privileged – in its entirety, [the court finds that] any effort to render the document segregable necessarily amounts to an effort to overcome the privilege."  "Even assuming that [the requester] could overcome the privilege, its allegations of misconduct would not help it do so."  "[T]he showing that is required to overcome the presidential communications privilege does not turn 'on the nature of the presidential conduct that the [requested] material might reveal.'"  "What matters instead is 'the function for which [the] evidence is sought.'"  "It is unclear how [the requester] – which is neither a litigant in need of [the] memo as evidence nor a governmental entity investigating government misconduct, but rather a private FOIA plaintiff – could make any showing of such need."
  • Waiver and Discretionary Disclosure, Waiver:  The Court of Appeals for the District of Columbia Circuit relates that "[the requester] also contends that, even if [the] memo is privileged, the government waived the privilege as to matters disclosed in the Mueller Report."  The court finds that "the government's publication of the Mueller Report did not waive privilege as to [the] memo."  "There seems to be no dispute that the Mueller Report constitutes an official disclosure, so the question under both doctrines is whether the information disclosed is a close enough match to the information withheld."  "[The court's] in camera review of [the] memo confirms that it is not."  "'[T]here are substantive differences between the disclosed [information] and the information that has been withheld.'"  The court also finds that "[the requester's] claim that the report 'directly describes the contents' of the memo is inaccurate."  "The report confirms the existence of that memo and describes the contents of the same phone call memorialized . . . ."  "But the report and the memo are not a complete match; the memo contains details and statements that were not disclosed in the report."  Finally, regarding "[the requester's] . . . argu[ment] that the government must disclose any parts that 'match the facts revealed' in the report," the court finds that "[i]t would in effect require segregability through waiver analysis – a result in tension with [the court's] holding that [the] memo is either privileged in full or not at all."  "Even assuming that such a result were permissible, the matching information in the report is not 'as specific as the information' in the memo."
Court Decision Topic(s)
Court of Appeals opinions
Exemption 5
Exemption 5, Other Considerations
Waiver and Discretionary Disclosure
Updated November 5, 2021