Case 1:17-cv-00842-CRC Document 1 Filed 05/08/17 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

THE PROTECT DEMOCRACY PROJECT, )

INC.

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2020 Pennsylvania Avenue, NW, #163

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Washington, DC 20006

)

)

Plaintiff,

) Civil Action No.

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v.

)

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U.S. DEPARTMENT OF JUSTICE

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950 Pennsylvania Avenue, NW

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Washington, DC 20530,

)

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U.S. DEPARTMENT OF DEFENSE

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1400 Defense Pentagon

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Washington, DC 20301, and

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U.S. DEPARTMENT OF STATE

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2201 C St., NW

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Washington, DC 20520,

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)

Defendants.

)

)

COMPLAINT

Plaintiff The Protect Democracy Project, Inc. (hereinafter “Protect Democracy”) brings

this action against Defendants U.S. Department of Justice, Department of Defense, and

Department of State to compel compliance with the Freedom of Information Act (FOIA), 5

U.S.C. § 552. Plaintiff alleges as follows:

JURISDICTION AND VENUE

1. The Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B)

and 28 U.S.C. § 1331.

2. Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B).

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PARTIES 3. Plaintiff The Protect Democracy Project, Inc. is an organization awaiting 501(c)(3) status, incorporated under the laws of the District of Columbia, and located at 2020 Pennsylvania Avenue, NW, #163, Washington, DC 20006. Plaintiff’s mission is to protect our democracy from descending into a more autocratic form of government by preventing those in power from depriving Americans of a free, fair, and fully-informed opportunity to exercise ultimate sovereignty. As part of this mission, Plaintiff seeks to inform public understanding of operations and activities of the government by gathering and disseminating information that is likely to contribute significantly to the public understanding of executive branch operations and activities. Plaintiff regularly requests such information pursuant to FOIA. Plaintiff intends to give the public access to documents transmitted via FOIA on its website, www.protectdemocracy.org, and to provide information about and analysis of those documents as appropriate. 4. Defendant U.S. Department of Justice (DOJ) is an agency of the executive branch of the federal government of the United States. Defendant DOJ is headquartered at 950 Pennsylvania Avenue, NW, Washington, DC 20530-0001. Defendant has possession, custody, and control of the documents that Plaintiff seeks in response to its FOIA request. 5. Defendant U.S. Department of Defense (DOD) is an agency of the executive branch of the federal government of the United States. Defendant DOD is headquartered at 1400 Defense Pentagon, Washington, DC 20301. Defendant has possession, custody, and control of the documents that Plaintiff seeks in response to its FOIA request. 6. Defendant U.S. Department of State (State Department) is an agency of the federal government of the United States headquartered at 2201 C Street NW, Washington DC
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20520. Defendant has possession, custody, and control of the documents that Plaintiff seeks in response to its FOIA request.
STATEMENT OF FACTS President Trump’s Military Strikes Against Syria on April 6, 2017 7. On August 31, 2013, then-President Barack Obama announced that while he believed taking military action against the Syrian government in retaliation for the use of chemical weapons is in “our national security interests,” he would not do so without prior Congressional authorization. President Obama stated that he had made this decision “mindful that I’m the president of the world’s oldest constitutional democracy.” 8. The U.S. Congress has not authorized the use of force against the Syrian government of President Bashar al-Assad. 9. The United Nations Charter, a treaty ratified by the United States, permits the use of force against another country only with permission of the United Nations Security Council or as a matter of self-defense. There is no U.N. Security Council resolution providing legal authority for military action against the Syrian government. 10. After opposing military action against the Syrian government as a candidate, in April 2017, President Trump authorized a U.S. military attack against the Syrian government. Pursuant to orders from President Trump, on April 6, 2017, U.S. warships launched 59 Tomahawk cruise missiles at a Syrian government airbase. The Administration’s Failure to Explain the Legal Rationale for the Strikes 11. On April 8, 2017, the President provided notification to Congress of the strikes, in a document slightly longer than one page, stating that he “acted in the vital national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct
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foreign relations and as Commander in Chief and Chief Executive.” The President’s letter further stated that “[t]he United States will take additional action, as necessary and appropriate, to further its important national interests.”
12. The April 8, 2017 letter does not articulate the domestic or international law justification for the strikes or identify any legal limits on the President’s perceived authority to take additional military action. The letter does not acknowledge the absence of congressional authorization for the use of force against the Syrian regime. The letter also does not acknowledge that there is no United Nations Security Council resolution authorizing force.
13. Neither the President, nor any Administration official, has publicly released a legal opinion, a legal analysis, memorandum, or other written record of the legal justification under domestic and international law authorizing the President’s military action in Syria.
14. In public statements, Administration officials have provided conflicting rationales for the strikes.
15. On April 10, 2017, White House spokesman Sean Spicer cited humanitarian reasons and ISIS, and claimed that the Constitution gives the President “the full authority to act” whenever military force is “in the national interest.”
16. On April 10, 2017, the Secretary of State Rex Tillerson referred to “holding to account any and all who commit crimes against the innocents anywhere in the world.”
17. On April 11, 2017, Defense Secretary James Mattis said: “Our military policy in Syria has not changed. Our priority remains the defeat of ISIS.” He also described the decision to use a military response in Syria as the best way to “deter the regime” from using chemical weapons in violation of international prohibitions.
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18. To Plaintiff’s knowledge, the Department of Justice has not issued any public or official statement explaining the legal justification for the actions in Syria. This is in contrast to the Department of Justice’s actions in 2011 when the United States initiated the use of force against Libya. Then, the Department of Justice’s Office of Legal Counsel published a 14-page “Memorandum Opinion for the Attorney General,” dated April 1, 2011, entitled “Authority To Use Military Force in Libya.”
19. In the case of Syria, more than one month after the strikes, no Administration lawyer has issued any statement articulating the Administration’s views on the limits of the Executive Branch’s authority to initiate further military action against Syria or any other nation.
20. On April 27, 2017, President Trump stated that a “major, major conflict with North Korea” could be coming.
21. Given recent military action in Syria and potential future military action in other new theatres, the Administration’s foreign policy, military, and legal agencies have an obligation to provide a straightforward, consistent legal justification for military action.
22. For the past six years, Syrian President Bashar al-Assad has carried out a barbaric, horrifying campaign of atrocities against the people of Syria, including using chemical weapons against civilians.
23. The United States and international community have debated how to respond to such brutal acts. That debate has been frustratingly slow and has sadly done little to either stop al-Assad’s atrocities or relieve the suffering of the Syrian people. That difficult debate has, however, focused on what type of response would be appropriate, effective and lawful under domestic and international law.
24. To resolve that debate, our Constitution divides war-making powers between
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Congress and the President. This is both to avoid a situation in which it is too easy for one person to initiate a war, and to ensure that the United States only goes to war when the people support doing so. In order for Congress to exercise its role as a representative of the people, the people must be able to provide their representatives with their views. The public cannot do this in an informed way in the absence of information from Defendant agencies about the legal authority that is being asserted.
25. Because the President has asserted that he may take additional military action against Syria at any time, and has also stated that a conflict with North Korea may also be imminent, it is imperative that the public be informed of the Administration’s assessments of its authority in order for the public to weigh in their views to Congress immediately.
26. For the records to serve their purpose in informing the public on these matters, there is urgency in accessing the information from Defendant agencies and making it widely available, which Plaintiff seeks to do.
FOIAs to DOJ and its components, Office of Legal Counsel and National Security Division 27. On April 7, Plaintiff sent a FOIA request to Defendant DOJ seeking the following records: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, The Protect Democracy Project hereby requests that your office produce within 20 business days the following records (see below for clarity on the types of records sought): Any and all records, including but not limited to emails and memoranda, reflecting, discussing, or otherwise relating to the April 6, 2017 military strike on Syria and/or the President’s legal authority to launch such a strike. This request includes, but is not limited to, internal Department of Justice communications, communications between Department of Justice employees and the Executive Office of the President, and communications between Department of Justice employees and other agencies. The timeframe for this request is April 4, 2017 through the present.
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See Exhibit A (DOJ FOIA request). 28. Plaintiff also requested expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E)
and 28 C.F.R. § 16.5(e). 29. Plaintiff also requested a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) or 5
U.S.C. § 552(a)(4)(A)(ii)(II). See Exhibit A. 30. Plaintiff’s request was submitted by fax on April 7, 2017. On April 13, 2017,
Defendant Department of Justice, Office of Information Policy on behalf of the Office of the Attorney General, wrote a letter to Plaintiff acknowledging receipt of the request on April 7, 2017 and assigning it a case reference number. See Exhibit B.
31. On April 13, 2017, Defendant Department of Justice, Office of the Attorney General, wrote to Plaintiff that it granted expedited processing of Plaintiff’s request, but indicating that it had not yet initiated processing. See Exhibit B.
32. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request – that is, May 4, 2017 – Defendant was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” Plaintiff’s right “to seek assistance from the FOIA Public Liaison of the agency,” and, in the case of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i).
33. To date, Defendant has failed to make the required determination and notifications. Nor has Defendant made a determination regarding Plaintiff’s request for a fee waiver.
DOJ Office of Legal Counsel 34. On April 7, Plaintiff sent a FOIA request to Defendant DOJ Office of Legal Counsel (OLC) seeking the following records:
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Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, The Protect Democracy Project hereby requests that your office produce within 20 business days the following records (see below for clarity on the types of records sought):
Any and all records, including but not limited to emails and memoranda, reflecting, discussing, or otherwise relating to the April 6, 2017 military strike on Syria and/or the President’s legal authority to launch such a strike. This request includes, but is not limited to, internal Department of Justice communications, communications between Department of Justice employees and the Executive Office of the President, and communications between Department of Justice employees and other agencies.
The timeframe for this request is April 4, 2017 through the present. See Exhibit C (OLC FOIA request).
35. Plaintiff also requested expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R. § 16.5(e).
36. On April 26, the OLC FOIA Officer wrote a letter to Plaintiff acknowledging receipt of Plaintiff’s request on April 7, 2017 and assigning it a tracking number. See Exhibit D.
37. OLC also granted plaintiff’s request for expedited processing, but indicated that it would not respond to the request with the statutory deadline.
38. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request – that is, May 4, 2017 – Defendant was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” Plaintiff’s right “to seek assistance from the FOIA Public Liaison of the agency,” and, in the case of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i).
39. To date, Defendant has failed to make the required determination and notifications. Nor has Defendant made a determination regarding Plaintiff’s request for a fee waiver.
DOJ National Security Division 40. On April 7, Plaintiff sent a FOIA request to Defendant DOJ National Security
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Division (NSD) seeking the following records: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, The Protect
Democracy Project hereby requests that your office produce within 20 business days the following records (see below for clarity on the types of records sought):
Any and all records, including but not limited to emails and memoranda, reflecting, discussing, or otherwise relating to the April 6, 2017 military strike on Syria and/or the President’s legal authority to launch such a strike. This request includes, but is not limited to, internal Department of Justice communications, communications between Department of Justice employees and the Executive Office of the President, and communications between Department of Justice employees and other agencies.
The timeframe for this request is April 4, 2017 through the present. See Exhibit E (NSD FOIA request).
41. Plaintiff also requested expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R. § 16.5(e).
42. On April 14, the NSD FOIA Office emailed a letter to Plaintiff acknowledging receipt of Plaintiff’s request on April 7, 2017. See Exhibit F.
43. NSD did not decide Plaintiff’s request for expedited processing, only noting that it was “under consideration.”
44. Plaintiff’s request concerns “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity that affect public confidence,” 28 C.F.R. § 16.5(e)(1)(iv) and because there is an urgent need “to inform the public about an actual or alleged Federal Government activity.” 28 C.F.R. § 16.5(e)(1)(ii).
45. There can be no question that the President’s decision to initiate military action is of the utmost importance to the public.
46. Similarly, whether the President has the legal authority to launch a military strike – or used military force without legal authorization – is a question that is fundamental to our democracy. The public has an immediate right to understand the Administration’s position with
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respect to the legality of the recent strike against Syria, and to assess whether that position is justified.
47. Plaintiff’s request for material related to the President’s legal authority to order the Syrian strikes could reveal whether or not the President acted outside of domestic and/or international law, as well as whether the President exceeded his authority vis a vis Congress.
48. Records showing conduct outside the bounds of executive authority would go directly to the question of government integrity that affects public confidence.
49. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request – that is, May 4, 2017 – Defendant was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” Plaintiff’s right “to seek assistance from the FOIA Public Liaison of the agency,” and, in the case of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i).
50. To date, Defendant has failed to make the required determination and notifications. Nor has Defendant made a determination regarding Plaintiff’s request for a fee waiver.
DOD FOIA 51. On April 7, Plaintiff sent a FOIA request to Defendant DOD seeking the following records: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, The Protect Democracy Project hereby requests that your office produce within 20 business days the following records (see below for clarity on the types of records sought): Any and all records, including but not limited to emails and memoranda, reflecting, discussing, or otherwise relating to the April 6, 2017 military strike on Syria and/or the President’s legal authority to launch such a strike. This request includes, but is not limited to, internal Department of Defense communications, communications between Department of Defense employees and the Executive Office of the President, and communications between Department of Defense employees and other agencies.
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The timeframe for this request is April 4, 2017 through the present. See Exhibit G (DOD FOIA request). 52. Plaintiff also requested expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R. § 16.5(e). 53. Plaintiff also requested a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) or 5 U.S.C. § 552(a)(4)(A)(ii)(II). See Exhibit G. 54. Plaintiff’s request was submitted by fax on April 7, 2017. 55. Defendant DOD acknowledged receipt of the request on April 10, 2017 in a letter to Plaintiff dated April 12, 2017. In its letter, DOD denied Plaintiff’s request for expedited processing. See Exhibit H. 56. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request – that is, May 5, 2017 – Defendant was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” Plaintiff’s right “to seek assistance from the FOIA Public Liaison of the agency,” and, in the case of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i). 57. To date, Defendant has failed to make the required determination and notifications. Nor has Defendant made a determination regarding Plaintiff’s request for a fee waiver.
State Department FOIA 58. On April 7, Plaintiff sent a FOIA request to Defendant State Department seeking the following records: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, The Protect Democracy Project hereby requests that your office produce within 20 business days the following records (see below for clarity on the types of records sought):
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Any and all records, including but not limited to emails and memoranda, reflecting, discussing, or otherwise relating to the April 6, 2017 military strike on Syria and/or the President’s legal authority to launch such a strike. This request includes, but is not limited to, internal Department of State communications, communications between Department of State employees and the Executive Office of the President, and communications between Department of State employees and other agencies.
The timeframe for this request is April 4, 2017 through the present. See Exhibit I (State Department FOIA request). 59. Plaintiff also requested expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R. § 16.5(e). 60. Plaintiff also requested a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) or 5 U.S.C. § 552(a)(4)(A)(ii)(II). See Exhibit I. 61. Plaintiff’s request was submitted by fax on April 7, 2017. 62. Defendant State Department acknowledged receipt of the request on April 12, 2017 in a letter to Plaintiff. The State Department informed Plaintiff that it denied Plaintiff’s requests for a fee waiver. See Exhibit J. 63. Though Plaintiff disagrees with the State Department’s determination that a fee waiver is not warranted here, Plaintiff will forgo its appeal rights because of the urgency and importance of the records requested. 64. Separate and apart from the fee waiver issue, pursuant to 5 U.S.C. § 552(a)(4)(A)(viii), the State Department is prohibited from assessing search fees for this request because it has failed to comply with relevant statutory time limits. 65. In the State Department’s April 12, 2017 letter to Plaintiff, it also denied Plaintiff’s requests for expedited processing. Plaintiff’s request concerns “[a] matter of widespread and exceptional media interest in which there exist possible questions about the
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government's integrity that affect public confidence,” 28 C.F.R. § 16.5(e)(1)(iv) and because there is an urgent need “to inform the public about an actual or alleged Federal Government activity.” 28 C.F.R. § 16.5(e)(1)(ii).
66. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request – that is, by May 5, 2017 – Defendant was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” Plaintiff’s right “to seek assistance from the FOIA Public Liaison of the agency,” and, in the case of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i).
67. To date, Defendant has failed to make the required determination and notifications.
COUNT I (Violation of FOIA, 5 U.S.C. § 552) 68. Plaintiff re-alleges and incorporates by reference all preceding paragraphs. 69. Defendants are in violation of FOIA by failing to respond to Plaintiff’s request within the statutorily prescribed time limit and by unlawfully withholding records responsive to Plaintiff’s request.
COUNT II (Violation of FOIA, 5 U.S.C. § 552(a)(6)(E)) 70. Defendants DOJ NSD, DoD, and the State Department are in violation of FOIA by failing to grant expedited processing to Plaintiff under 5 U.S.C. §(a)(6)(E) and Defendants’ corresponding regulations.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court: (1) Order Defendants, by a date certain, to conduct a search that is reasonably likely to
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lead to the discovery of any and all records responsive to Plaintiff’s request; (2) Order Defendants, by a date certain, to demonstrate that it has conducted an adequate
search; (3) Order Defendants, by a date certain, to produce to Plaintiff any and all non-exempt
records or portions of records responsive to Plaintiff’s request, as well as a Vaughn index of any records or portions of records withheld due to a claim of exemption;
(4) Enjoin Defendants from improperly withholding records responsive to Plaintiff’s request;
(5) Order Defendants to grant Plaintiff’s request for a fee waiver; (6) Grant Plaintiff an award of attorney fees and other reasonable litigation costs pursuant to 5 U.S.C. § 552(a)(4)(E); (7) Order Defendants DOJ NSD, DOD, and the State Department to grant Plaintiff’s request for expedited processing of its request; (8) Grant Plaintiff such other relief as the Court deems appropriate.

Date: May 8, 2017

Respectfully submitted,
/s/ Allison F. Murphy ALLISON F. MURPHY (Bar No. 975494)
Allison.Murphy@protectdemocracy.org JUSTIN FLORENCE (DC Bar No. 988953)
(pro hac vice to be filed) Justin.Florence@protectdemocracy.org The Protect Democracy Project, Inc. 2020 Pennsylvania Ave., NW #163 Washington, DC 20006 Phone: 202-599-0466 Fax: 929-777-8428
Counsel for Plaintiff

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PROTECT DEMOCRACY PROJECT, INC.,

Plaintiff, v.

Case No. 17-cv-00842 (CRC)

U.S. DEPARTMENT OF DEFENSE, et al.,

Defendants.

MEMORANDUM OPINION On April 6, 2017, President Trump ordered Tomahawk cruise missile strikes against a Syrian-government airbase. The next day, The Protect Democracy Project, Inc. (“Protect Democracy”) submitted requests under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to the Department of State, the Department of Defense, and three separate components of the Department of Justice, seeking documents relating to the President’s legal authority to launch the strikes. The organization also sought expedited processing. About one month later, with none of the requested documents and with two of its expedited processing requests having been denied, Protect Democracy brought suit in this Court. It then moved for a preliminary injunction, seeking to compel all three agencies to process its requests on an expedited basis, and to produce all responsive records by a date certain. For the reasons that follow, the Court will grant the former relief but deny the latter. I. Background Agencies typically process FOIA requests in the order received, but FOIA’s “expedited processing” provision recognizes that some requests are urgent enough to warrant a spot towards

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the front of the line. 5 U.S.C. § 552(a)(6)(E). As relevant here, the statute directs that requests should be expedited where the requester shows a “compelling need” for the records sought, id. § 552(a)(6)(E)(i)(I)—which is the case where the requester is “primarily engaged in disseminating information,” and there is an “urgency to inform the public concerning actual or alleged Federal Government activity,” id. § 552(a)(6)(E)(v). Once expedited, requests must be “process[ed] as soon as practicable.” Id. § 552(a)(6)(E)(iii). Agencies have promulgated regulations implementing these provisions. See 28 C.F.R. § 16.5(e) (DOJ expedited processing regulations); 32 C.F.R. § 286.8(e) (DOD regulations); 22 C.F.R. § 171.11(f) (State regulations). Despite modest variations among the schemes, they are materially the same: Each at a minimum implements the “compelling need” standard. See 28 C.F.R. § 16.5(e)(1)(ii); 32 C.F.R. § 286.8(e)(1)(i); 22 C.F.R. § 171.11(f)(2).
On April 7, 2017, the day after the U.S. conducted the above-referenced military strikes against the Syrian government, Protect Democracy sent FOIA requests to the Department of State (“State”), the Department of Defense (“DOD”), and three components of the Department of Justice (“DOJ”): the Office of Information Policy, which processes FOIA requests for the Offices of the Attorney General and Deputy Attorney General; the Office of Legal Counsel; and the National Security Division. See Pl.’s Mem. Supp. Mot. Prelim. Inj. (“MPI”), Exs. A–E. The identical requests sought:
Any and all records [from April 4, 2017 through the present], including but not limited to emails and memoranda, reflecting, discussing, or otherwise relating to the April 6, 2017 military strike on Syria and/or the President’s legal authority to launch such a strike. This request includes, but is not limited to, internal [agency] communications, communications between [agency] employees and the Executive Office of the President, and communications between [agency] employees and other agencies. Pl.’s MPI, Ex. A, at 2. Protect Democracy also requested expedited processing, pointing among
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other things to the public’s “immediate right to understand the administration’s position with respect to the legality of the recent strike against Syria, and to assess whether that position is justified.” Id. at 2–3. Citing its website and 501(c)(3) status, the organization also noted that its “request [was] submitted in consort with [its] mission to gather and disseminate information that is likely to contribute significantly to the public understanding of executive branch operations and activities.” Id. at 3–4.
Over the next several weeks, each of the DOJ components granted Protect Democracy’s requests for expedited processing. See Pl.’s MPI, Exs. F & G; Defs.’ Mem. Opp’n Pl.’s MPI (“Defs.’ Opp’n”), Ex. 1. At the same time, the DOJ components had not conducted even a preliminary search for relevant documents, and they offered no estimated processing timeline. For example, OIP indicated that it had “not yet completed a search to determine whether there are records within the scope of [the] request,” and that the “time needed to process [the] request [would] necessarily depend on the complexity of our records search and on the volume and complexity of any records located.” Pl.’s MPI, Ex. F. DOD and State, on the other hand, denied the expedition requests, summarizing the relevant regulations but not explaining how Protect Democracy’s request fell short of those standards. See MPI, Exs. I & J.
On May 8, roughly one month after submitting its requests, Protect Democracy brought suit in this Court, alleging FOIA violations. See Pl.’s Compl., ECF No. 1. Two weeks after that, before Defendants had responded to the Complaint, Protect Democracy moved for a preliminary injunction that would “compel all Defendants to process its FOIA requests on an expedited basis, and produce all requested records (or acknowledge if there are no such records)” within a date certain. Pls.’ MPI 2. Defendants opposed the motion, and the Court held a hearing.
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II. Legal Standard “A [party] seeking a preliminary injunction must establish [1] that he is likely to succeed
on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (alteration in original) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)). “[I]t is especially important for the movant to demonstrate a likelihood of success on the merits.” Nat’l Head Start Ass’n v. U.S. Dep’t of Health & Human Servs., 297 F. Supp. 2d 242, 246 (D.D.C. 2004) (citing Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 360, 366 (D.C. Cir. 1999)). A preliminary injunction is an “extraordinary” remedy, and so “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (emphasis in original) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948 (2d ed. 1995)).
III. Analysis When brought under FOIA, preliminary injunction motions generally present one of two
questions. First, has the relevant agency appropriately denied a request for expedited processing? See, e.g., Progress v. Consumer Fin. Prot. Bureau, No. 17-686, 2017 WL 1750263 (D.D.C. May 4, 2017); Wadelton v. Dep’t of State, 941 F. Supp. 2d 120 (D.D.C. 2013); Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270 (D.D.C. 2012). Second, assuming a request should be expedited, is the agency processing it as quickly as “practicable,” 5 U.S.C. § 552(a)(6)(E)(iii)? See, e.g., Daily Caller v. U.S. Dep’t of State, 152 F. Supp. 3d 1 (D.D.C. 2015); Elec. Privacy Info. Ctr. v. Dep’t of Justice, 416 F. Supp. 2d 30 (D.D.C. 2006). Protect
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Democracy’s motion implicates both questions. The Court will evaluate each in turn, according to the four preliminary injunction factors.
A. Whether Processing Should Be Expedited 1. Likelihood of Success on the Merits
The Court first asks whether Protect Democracy is likely to succeed on the merits of its claim that its requests are entitled to expedited processing. Because the DOJ components have already granted Protect Democracy’s expedition requests, only DOD’s and State’s denials remain relevant to this issue. A decision denying expedited processing is reviewed by the courts de novo, Al-Fayed v. CIA, 254 F.3d 300, 304 (D.C. Cir. 2001), “based on the record before the agency at the time of the determination,” 5 U.S.C. § 552(a)(6)(E)(iii). Recall that, under FOIA, requests should be expedited where the requester shows a “compelling need” for the relevant information, 5 U.S.C. § 552(a)(6)(E)(i)(I), meaning that (1) the requester is “primarily engaged in disseminating information” and (2) there is an “urgency to inform the public concerning actual or alleged Federal Government activity,” id. § 552(a)(6)(E)(v).
Consider first the requirement that a requester be “primarily engaged in disseminating information.” As suggested by the statute’s plain meaning and legislative history, the standard “requires that information dissemination be the main [and not merely an incidental] activity of the requestor.” Progress, 2017 WL 1750263, at *3 (quoting Landmark Legal, 910 F. Supp. 2d at 276). On the other hand, publishing information “need not be [the organization’s] sole occupation.” Id. The Court easily finds that, with its representations to DOD and State, Protect Democracy satisfied these standards. The organization noted in both requests that it “intend[ed] to disseminate the information obtained”; that its “core mission . . . is to inform public understanding on operations and activities of government,” including by “gather[ing] and
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disseminat[ing] information that is likely to contribute significantly to the public understanding of executive branch operations and activities”; and that it “intend[ed] to give the public access to documents transmitted via FOIA on [its] website.” Pl.’s MPI, Exs. D, E at 2–4. These representations likely established that Protect Democracy is “primarily engaged in disseminating information.” 5 U.S.C. § 552(a)(6)(E)(v).
The Court turns next to whether Protect Democracy’s request likely demonstrated an “urgency to inform the public concerning actual or alleged Federal Government activity.” 5 U.S.C. § 552(a)(6)(E)(v). In evaluating whether this criterion has been satisfied, courts have been directed to weigh three main factors: “(1) whether the request concerns a matter of current exigency to the American public; (2) whether the consequences of delaying a response would compromise a significant recognized interest; and (3) whether the request concerns federal government activity.” Al-Fayed, 254 F.3d at 310. The relevant agency regulations identify similar considerations. See 22 C.F.R. 171.11(b)(2) (State Regulation) (“urgently needed” information must have “a particular value that will be lost if not disseminated quickly”); 32 C.F.R. § 286.8(e)(3) (DOD Regulation) (requester “must establish a particular urgency to inform the public about the [relevant] government activity”).
There is no dispute that Protect Democracy’s requests relate to federal government activity. But do the requests touch on “a matter of current exigency to the American public,” and would “delaying a response . . . compromise a significant recognized interest,” Al-Fayed, 254 F.3d at 310? Likely, the answer to both questions is yes. Regarding nationwide “exigency”: In its requests, submitted the day after the April 6 missile strikes against Syria, Protect Democracy explained that “the President’s decision to initiate military action is of the utmost importance to the public,” and that “whether the President has the legal authority to launch [such] a military
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strike” is similarly critical. Pl.’s MPI, Exs. D, E at 2. Few would take issue with these
assertions. But as evidence that they were justified, one need look no further than the
widespread media attention—including by some of the nation’s most prominent news outlets—
paid both to the April 6 strike and its legality, as early as the date of Protect Democracy’s requests.1 Under the regulations promulgated by both DOD and State, such media coverage is
strong evidence of an “urgency to inform” the public. See 32 C.F.R. § 286.8(e)(3) (DOD) (“The
existence of numerous articles published on a given subject can be helpful in establishing the
requirement that there be an ‘urgency to inform’ the public on the topic.”); 22 C.F.R. § 171.11
(State) (defining “[u]rgently needed information” as being “[o]rdinarily” related to “a breaking
news story of general public interest”). There is little doubt, in other words, that “the subject
matter of the request[s] [is] central to a pressing issue of the day.” Wadelton v. Dep’t of State, 941 F. Supp. 2d 120, 123 (D.D.C. 2013).2
Relatedly, the Court also finds it likely that a significant delay in processing Protect
Democracy’s requests would “compromise a significant recognized interest.” Al-Fayed, 254
F.3d at 310. In particular, if production is unduly delayed, both Protect Democracy and the
1 See, e.g., Charlie Savage, Was Trump’s Syria Strike Illegal? Explaining Presidential War Powers, N.Y. Times, Apr. 7, 2017, https://www.nytimes.com/2017/04/07/us/politics/military-force-presidential-power.html; Ryan Lizza, Was Trump’s Strike on Syria Legal?, The New Yorker, Apr. 7, 2017, http://www.newyorker.com/news/ryan-lizza/was-trumps-strike-on-syria-legal; Ariane de Vogue, Was Trump’s Syria strike legal? An expert weighs in, CNN Politics, Apr. 7, 2017, http://www.cnn.com/2017/04/07/politics/was-trump-syria-strike-legal/index.html; Sabrina Siddiqui & Lauren Gambino, Are Donald Trump’s Missile Strikes in Syria Legal?, The Guardian, Apr. 7, 2017, https://www.theguardian.com/us-news/2017/apr/07/donald-trump-usmissile-strikes-syria-legal.
2 Protect Democracy also cites “time-sensitive” Congressional debates over U.S. military actions in Syria. Pl.’s MPI 6, 21. However, as Defendants point out, see Defs.’ Opp’n 12–13, none of those pending congressional resolutions specifically concerns the legality of the April 6 strikes against the Syrian government.
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public at large will be “precluded . . . from obtaining in a timely fashion information vital to the current and ongoing debate surrounding the legality of” a high-profile government action, EPIC I, 416 F. Supp. 2d at 41—namely, military strikes against the Syrian government. Being closed off from such a debate is itself a harm in an open democracy. See Elec. Frontier Found. v. Office of Dir. of Nat. Intelligence, 2007 WL 4208311, at *7 (N.D. Cal. Nov. 27, 2007) (“[O]ngoing public and congressional debates about issues of vital national importance cannot be restarted or wound back.”) (internal quotations omitted). But there is another potential harm, too: The possibility for the strikes to recur without legal justification. By then, any damage will have been done. See Payne Enterprises, Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988) (“[S]tale information is of little value.”). In short, because Protect Democracy has demonstrated a “compelling need” for the information it requested, the Court finds that the organization is likely to prevail on the merits of its expedited processing claim.
2. Irreparable Harm The Court turns to assessing Protect Democracy’s expedition request in light of the remaining preliminary injunction factors, beginning with the likelihood of “irreparable harm in the absence of preliminary relief.” Aamer, 742 F.3d at 1038. As may be apparent, in the course of evaluating whether “delaying a response would compromise a significant recognized interest,” Al-Fayed, 254 F.3d at 310, the Court also found that harm would result from undue delay. But there is a key distinction between the analysis above and here. In assessing the merits of the agencies’ denial decisions, the Court considered only information available to the agencies “at the time of the determination[s].” 5 U.S.C. § 552(a)(6)(E)(iii). The Court is not aware of any similar constraint, however, that applies in assessing irreparable harm or the other preliminary injunction factors. In other words, the Court may here consider events that have transpired since
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Protect Democracy’s April 7 requests.
Those intervening events have a common theme: increasing U.S. hostility towards the
Syrian government. U.S.-led forces conducted strikes against pro-regime forces in Syria on May
18, June 6, and June 8,3 and a U.S. fighter jet shot down a Syrian military jet on June 18.4 As the
Government points out, these military actions may not have been directly related to the April 6
strike, which was aimed at punishing the Syrian government for its suspected use of chemical
weapons. See Defs.’ Opp’n 13. But they nevertheless evidence mounting U.S. hostilities against
pro-Syria forces. And on June 26, the White House indicated that another April 6-like attack
may be imminent: It stated that Syria appeared to be readying for another chemical weapons
attack, and “warned that [it] would ‘pay a heavy price’ if one took place.”5 At the same time,
despite public requests from at least two members of Congress,6 the Administration has not
offered any detailed legal support for the April 6 strike.
The recent escalation in hostilities between U.S. and Syria, plus indications from the
3 See CJTF-OIR, Coalition Statement on At Tanf Garrison, May 18, 2017, http://www.inherentresolve.mil/News/Article/1186578/coalition-statement-on-attanf-garrison; CJTF-OIR, Coalition Statement on Actions Near At Tanf, Syria, June 7, 2017, http://www.inherentresolve.mil/News/Article/1205543/coalitionstatement-%20on-actions-nearat-tanf-syria; CJTF-OIR, Coalition Statement on At Tanf, June 8, 2017, http://www.inherentresolve.mil/News/Article/1208008/coalition-statement-on-at-tanf.
4 See Thomas Gibbons-Neff & Kareem Fahim, U.S. Aircraft Shoots Down a Syrian Government Jet Over Northern Syria, Pentagon Says, June 18, 2017, Wash. Post, https://www.washingtonpost.com/news/checkpoint/wp/2017/06/18/a-u-s-aircraft-has-shot-downa-syrian-government-jet-over-northern-syria-pentagon-says/?utm_term=.1959576788de.
5 Michael D. Shear, Helene Cooper & Eric Schmitt, Syria Will ‘Pay a Heavy Price’ for Another Chemical Attack, White House Says, N.Y. Times, June 26, 2017, https://www.nytimes.com/2017/06/26/us/politics/syria-will-pay-a-heavy-price-for-anotherchemical-attack-trump-says.html.
6 Jeremy Herb, Kaine, Schiff Demand White House Legally Justify Syria Strike, CNN Politics, Apr. 25, 2017, http://www.cnn.com/2017/04/25/politics/kaine-schiff-syriastrike/index.html.
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White House that another chemical weapons attack may be in the offing, make it more likely that irreparable harm will result without expedited processing of Protect Democracy’s requests. Again, the potential for irreparable harm under these circumstances exists “because ongoing public and congressional debates about issues of vital national importance cannot be restarted or wound back.” Elec. Frontier Found., 2007 WL 4208311, at *7. That is especially so, here, where the use of military force is implicated. That fact distinguishes this case from those where the looming event is, for example, the promulgation of an administrative rule, see Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270 (D.D.C. 2012), or even the passage of legislation, see Elec. Privacy Info. Ctr. v. DOJ, 15 F. Supp. 3d 32, 46 (D.D.C. 2014). Military strikes cannot be undone.
3. Other Preliminary Injunction Factors In light of the Court’s finding that Protect Democracy’s requests likely warrant expedited processing, both “the balance of equities” and “the public interest,” Aamer, 742 F.3d at 1038, counsel in favor of granting that relief. Defendants nowhere claim that it would overburden them merely to comply with FOIA’s expedited processing requirements. Instead, they take issue with Protect Democracy’s request for the production of documents by a date certain, which the Court addresses in the following section. Furthermore, it is clear that the public interest favors expediting Protect Democracy’s requests, assuming those requests meet the relevant “compelling need” standards, 5 U.S.C. § 552(a)(6)(E)(v). Not only would the public benefit from participation in the “ongoing debate” discussed above, but an agency’s compliance with a mandatory statutory regime is presumably always in the public interest. See Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977) (“[T]here is an overriding public interest . . . in the general importance of an agency’s faithful adherence to its statutory mandate.”). In sum, for
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the reasons just outlined, Protect Democracy is entitled to a preliminary injunction directing the expedited processing of its requests.
B. Processing the Requests “As Soon As Practicable” Protect Democracy has shown that it is entitled to expedited processing, but that is only half its battle. The organization also seeks an order directing that its requests be processed and responsive documents produced by a date certain. It must therefore carry its burden to show that the four preliminary injunction factors support awarding that relief, as well.
1. Likelihood of Success on the Merits FOIA directs agencies to process expedited requests “as soon as practicable.” 5 U.S.C. § 552(a)(6)(E)(iii). Protect Democracy argues that, because FOIA also requires agencies to make a “determination” within twenty days of receiving a typical, non-expedited request, see 5 U.S.C. 552(a)(6)(A)(i), an agency’s “failure to respond [to an expedited request] in twenty working days creates a rebuttable presumption that the agency has not processed [that] request ‘as soon as practicable.’” Pl.’s Reply 11; see also Pl.’s MPI 19–20. Protect Democracy misreads the applicable provision, however. The automatic “penalty” for failing to meet FOIA’s twentyday timeline is not the imposition of another explicit timeline, but rather “that the agency cannot rely on the administrative exhaustion requirement to keep cases from getting into court.” Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n, 711 F.3d 180, 189 (D.C. Cir. 2013). Once FOIA’s deadlines have passed, “the agency may continue to process the request, and the court (if suit has been filed) will supervise the agency’s ongoing progress, ensuring that the agency continues to exercise due diligence in processing the request.” Id.; see also Daily Caller v. U.S. Dep’t of State, 152 F. Supp. 3d 1, 10 (D.D.C. 2015) (“[The twenty-day] provision . . . serves primarily as a means to obtain immediate judicial supervision over an
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agency’s response to an outstanding FOIA request.”). In cases where expedited processing has been granted, it follows that the district court’s supervision will aim to ensure that the agency is processing a request with “due diligence” and as quickly “as practicable.” 5 U.S.C. § 552(a)(6)(E)(iii). But there is no reason to assume that any request processed in less than twenty days has failed to meet that standard.7 In light of Defendants’ representations that they are actively processing Protect Democracy’s requests, and without evidence to the contrary, the Court finds that the merits weigh in favor of Defendants on this issue.
2. Irreparable Harm and Other Preliminary Injunction Factors The Court previously found that Protect Democracy had demonstrated a “compelling need” for the information it requested, and that the organization and the public would be irreparably harmed if the release of that information were unduly delayed. It cannot be said, however, that there will be irreparable harm if the requested information is not released within, say, twenty days. As Defendants note, Protect Democracy “has not identified a single imminent deadline” related to its request, or any event set to occur on a particular date. Defs.’ Opp’n 13. And while U.S.-Syria tensions have been rising, there is no reason to expect further hostilities within any definite time window—for example, next week or next month. Accordingly, Protect Democracy has not demonstrated that it will experience irreparable harm without an order directing processing by a date certain. Finally, “the balance of equities” and “the public interest,” Aamer, 742 F.3d at 1038, previously on the side of Protect Democracy, here favor Defendants. Imposing on Defendants an
7 Protect Democracy’s “rebuttable presumption” argument rests on a single, nonprecedential case. See EPIC I, 416 F. Supp. 2d 30. While the EPIC I court did initially apply a rebuttable presumption that processing had occurred less quickly than “practicable” based on FOIA’s twenty-day timeline, id. at 39, it later reconsidered that order, and ultimately allowed the defendants up to 120 additional days. See Defs.’ Opp’n, Ex. 5.
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arbitrary deadline for processing would run the risk of overburdening them, and could even lead to the mistaken release of protected information. See Daily Caller, 152 F. Supp. 3d at 14 (“Requiring the agency to process and produce [requested] materials under an abbreviated deadline raises a significant risk of inadvertent disclosure of records properly subject to exemption under FOIA.”). And requiring production by a date certain, without any factual basis for doing so, might actually disrupt FOIA’s expedited processing regime rather than implement it. See Elec. Privacy Info. Ctr. v. DOJ, 15 F. Supp. 3d 32, 47 (D.D.C. 2014) (“[A]llowing [a plaintiff] to jump to the head of the line would upset the agency’s processes and be detrimental to the other expedited requesters, some of whom may have even more pressing needs.”) (emphasis added). In short, all four preliminary injunction factors counsel against requiring Defendants to process Protect Democracy’s requests by a date certain, at least at this stage and on this record.
IV. Conclusion For the foregoing reasons, the Court will grant in part and deny in part Protect
Democracy’s motion for a preliminary injunction. As set forth in the accompanying Order, the Court will direct Defendants to process Protect Democracy’s requests on an expedited basis, but will stop short, at this juncture at least, of ordering production by a date certain.
In accordance with its supervisory role, however, and in light of the fact that, as it represented at the hearing, Protect Democracy has offered to narrow its request to cover only documents specifically related to legal justifications for the April 6 Syria strikes, the Court will direct Defendants to file, by July 28, 2017, a status report on their ongoing search and processing efforts. That status report at a minimum should include the estimated number of documents responsive to Protect Democracy’s requests, and a proposed processing and production timeline.
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No later than August 2, 2017, Protect Democracy may file a response to Defendants’ timeline, including its own proposal for processing and production. The Court will consider both proposals, and direct further proceedings as necessary.8

Date: July 13, 2017

CHRISTOPHER R. COOPER United States District Judge

8 As noted at the hearing, the Court also encourages the parties to work together to prioritize the processing of documents from particular components—such as the Office of Legal Counsel, State’s Legal Advisor’s Office, and the DOD General Counsel’s offices—that are most likely to contain responsive and material records.
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 </s> Case 1:17-cv-00842-CRC Document 44 Filed 08/21/18 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT, INC.,

Plaintiff,

v.

Case No. 17-cv-00842 (CRC)

U.S. DEPARTMENT OF DEFENSE, et al.,

Defendants.

MEMORANDUM OPINION On April 6, 2017, President Trump ordered a cruise missile strike on the Shayrat military airfield in western Syria. Administration officials explained that the strike was a response to the chemical attack that had killed dozens of Syrian civilians three days earlier—one that, according to U.S. intelligence, had been directed by Syrian president Bashar Al-Assad. The day after the U.S. missile strike, a nonprofit called The Protect Democracy Project, Inc. submitted several requests under the Freedom of Information Act (“FOIA”) seeking documents related to the President’s legal authority to launch the strike. It filed these requests with the Department of State, the Department of Defense, and three components of the Department of Justice, including the Office of Legal Counsel. The agencies released some responsive documents but withheld fifteen documents in full. The withheld documents fall into three categories. The first includes three iterations of a legal memorandum produced by an interagency group of lawyers for the President’s national security staff on the day the strike was ordered. The second is an outline drafted by attorneys in the Department of Justice’s Office of Legal Counsel to help the Office advise the Attorney General on the legal basis for the strike the day after it was launched. And the third includes several sets of talking points prepared to assist

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Executive Branch officials in answering questions from the press and from Congress. To justify withholding these documents, the agencies invoked several FOIA exemptions. Chief among them was Exemption 5, which shields from disclosure documents that would typically be privileged in civil discovery. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).
Protect Democracy and the government now ask the Court to decide whether the documents were properly withheld under FOIA. For the most part, the Court finds the agencies’ withholdings justified. The Court does, however, find that a small amount of information in several of the talking-point documents has already been officially acknowledged, and thus that the agencies may not withhold that information. It will therefore grant in part and deny in part each party’s motion for summary judgment.
I. Background On April 7, 2017, the day after the Shayrat airfield strike, Protect Democracy sent
identical FOIA requests to the Department of State (“State”), the Department of Defense (“DOD”), and three components of the Department of Justice (“DOJ”)—collectively, “the agencies.” The requests sought:
Any and all records [from April 4, 2017 through the present], including but not limited to emails and memoranda, reflecting, discussing, or otherwise relating to the April 6, 2017 military strike on Syria and/or the President’s legal authority to launch such a strike. This request includes, but is not limited to, internal [agency] communications, communications between [agency] employees and the Executive Office of the President, and communications between [agency] employees and other agencies. Compl. Exs. A, C, E, G, I.
Having received no responses to these requests a month after their submission, Protect Democracy brought this lawsuit alleging violations of FOIA. It also moved for a preliminary injunction that would compel the agencies to review its requests on an expedited basis. Mot. Prelim. Inj. at 2. In July 2017, this Court granted that request. See Order, ECF No. 15 (July 17,
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2017). The parties worked to narrow the scope of Protect Democracy’s requests and the agencies provided a final response in September 2017. Joint Status Report, ECF No. 20, ¶¶ 2–3 (Sept. 15, 2017). The agencies released some documents in full, released redacted versions of others, and withheld fifteen outright. In redacting and withholding certain documents, the agencies invoked several of FOIA’s exemptions—specifically, Exemptions 1, 5, 6, and 7. The parties then filed cross-motions for summary judgment on the question of whether the agencies properly withheld the fifteen documents. At this point, the crux of their dispute is whether the documents are protected under Exemption 5, which shields materials “normally privileged in the civil discovery context.” Sears, 421 U.S. at 149.
After an initial review of the parties’ filings, the Court concluded that it needed to see the talking points—documents 5 through 15 in the government’s Vaughn index1—before it could resolve an important aspect of the dispute. See 5 U.S.C. § 552(a)(4)(B) (authorizing the Court to “examine the contents of [withheld] agency records in camera to determine whether such records or any part thereof shall be withheld” under a FOIA exemption). Specifically, Protect Democracy contends that the government has waived any privileges applicable to the withheld documents by publicly acknowledging information contained in them. See Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990) (“[W]hen information has been ‘officially acknowledged,’ its disclosure may be compelled even over an agency’s otherwise valid exemption claim.”). With respect to documents 5 through 15, the Court found that Protect Democracy had cited public statements by Trump Administration officials sufficient to meet its “initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.” Order,
1 A “Vaughn index” is a document that summarizes the government’s withholdings of documents responsive to a FOIA request. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
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ECF. No. 33, at 3 (Apr. 25, 2018) (quoting Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)). Yet the government’s descriptions of the documents were not detailed enough for the Court “to decide whether their information sufficiently overlaps with the public statements so as to satisfy the D.C. Circuit’s exacting test for public acknowledgment.” Id. The Court has now reviewed documents 5 through 15 in camera.
The Court also directed supplemental briefing on another issue related to public acknowledgement. On May 31, 2018, the Office of Legal Counsel (“OLC”) publicly released a 22-page memorandum justifying the legality of a second set of missile strikes that President Trump directed against Syria on April 13, 2018. See Steven A. Engel, Ass’t Att’y Gen., OLC, April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities (May 31, 2018), https://perma.cc/NX69-56E6. Noting that little of the 2018 memorandum’s analysis was “particularized to the recent strike” and that some of its reasoning “closely align[ed] with the publicly stated rationale for the 2017 strike,” the Court found it “at least plausible that ‘specific information in the public domain’ (i.e., the 2018 memorandum) duplicated ‘that being withheld’ (i.e., the 2017 memorandum).” Order, ECF No. 36, at 3–4 (June 5, 2018) (quoting Afshar, 702 F.2d at 1130). The Court therefore ordered the parties to file supplemental briefs, with affidavits as necessary, addressing whether OLC’s release of the 2018 memorandum constituted a waiver of any applicable privileges for purposes of Exemption 5. The parties submitted those briefs in late June. The government’s included a sworn declaration from Paul Colborn, a senior OLC official responsible for overseeing the Office’s FOIA requests.
II. Legal Standards FOIA requires federal executive agencies to produce their records upon request unless
one of the Act’s nine exemptions applies. See 5 U.S.C. § 552(b). The exemptions aim “to
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balance the public’s interest in governmental transparency against ‘legitimate governmental and private interests [that] could be harmed by release of certain types of information.’” United Techs. Corp. v. DOD, 601 F.3d 557, 559 (D.C. Cir. 2010) (alteration in original) (quoting Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc)). “But these limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976). Thus, where a plaintiff challenges an agency’s withholding of records, the agency bears the burden of showing that one of FOIA’s exemptions applies. ACLU v. DOD, 628 F.3d 612, 619 (D.C. Cir. 2011).
FOIA disputes are generally resolved on cross-motions for summary judgment. In evaluating each motion, the Court must view the record in the light most favorable to the nonmovant. The agency may satisfy its burden of showing that a FOIA exemption applies through an affidavit that “describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith.” ACLU v. DOD, 628 F.3d at 619.
III. Analysis The agencies withheld fifteen documents that they deemed responsive to Protect
Democracy’s requests. The Court will evaluate the agencies’ claims of privilege over each category of documents in turn: the legal opinion, the OLC outline, and the talking points.
A. Interagency Legal Memorandum The agencies’ Vaughn index identifies three versions of a seven-page legal memorandum prepared on April 6, 2017 by a group of attorneys from State, DOD, and OLC. The first two
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documents are final versions of the memorandum—one belongs to State and the other to DOJ. The third is a “prior draft” version from DOD. The government contends that all three documents are exempt from disclosure under FOIA Exemption 5.2 The Court agrees.
Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Put more simply, the exemption shields information that would be “normally privileged in the civil discovery context.” Sears, 421 U.S. at 149. “Normally privileged” means that, unlike in civil discovery, courts do not ask whether the agency’s assertion of privilege is overcome by the plaintiff’s showing of need. Rather, “[t]he test under Exemption 5 is whether the documents would be ‘routinely’ or ‘normally’ disclosed upon a showing of relevance.” FTC v. Grolier Inc., 462 U.S. 19, 26 (1983). If not, then withholding is proper.
The government contends that the legal memorandum is covered by three wellestablished privileges—those that protect presidential communications, attorney-client communications, and deliberative processes. Each of these privileges has been recognized as a basis for withholding documents under Exemption 5. See Judicial Watch, Inc. v. DOJ, 365 F.3d 1108, 1113 (D.C. Cir. 2004); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980).
2 The agencies initially also invoked Exemptions 1 and 3 in withholding the memorandum, claiming that it contained classified and statutorily protected information. But Protect Democracy has clarified that it seeks only portions of the document that provides legal analysis regarding the military strikes, and not any of its factual information. The Government concedes that this legal analysis is not protected under Exemptions 1 or 3, and that the information Protect Democracy seeks is segregable from the protected factual material in the memorandum. Thus, the sole remaining issue with the memorandum is whether information in the documents was properly withheld under Exemption 5.
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Before explaining its conclusion that the memorandum falls within at least one of these
privileges, the Court must confront the threshold issue of whether any of its information has been
“officially acknowledged” such that the information must be disclosed over the agencies’
otherwise valid Exemption 5 claim, or if any applicable privileges have been otherwise waived.
For information to be “officially acknowledged,” “(1) the information requested must be as
specific as the information previously released; (2) the information requested must match the
information previously disclosed; and (3) the information requested must already have been
made public through an official and documented disclosure.” ACLU v. DOD, 628 F.3d at 620–
21. The related doctrine of waiver is more context-specific, but at a minimum it bars agencies
from withholding documents under Exemption 5 that have been shared outside of the
government. See Ctr. for Int’l Envtl. Law v. Office of U.S. Trade Rep., 237 F. Supp. 2d 17, 25
(D.D.C. 2002) (“[C]ommunications between agencies and outside parties are not protected under Exemption 5.”).3
3 The official acknowledgement doctrine developed in cases involving different FOIA exemptions—namely, Exemptions 1 and 3, which relate to classified or otherwise sensitive information. See ACLU v. DOD, 628 F.3d at 622. The Court is not aware of any cases in this Circuit applying the doctrine to overcome withholdings made under Exemption 5; rather, the courts that have evaluated the relationship between public disclosure and Exemption 5 have done so using the doctrine of waiver. See, e.g., Citizens for Responsibility & Ethics in Wash. v. DOJ, 658 F. Supp. 2d 217, 236–37 (D.D.C. 2009). But, at least in this case, the Court finds the analysis basically duplicative. Surely if the government publicly releases information that specifically matches information it has withheld pursuant to a privilege under Exemption 5, that release amounts to a waiver of privilege. See, e.g., N.Y. Times v. DOJ, 756 F.3d 100, 114 (2d Cir. 2014) (“Voluntary disclosures of all or part of a document may waive an otherwise valid FOIA exemption, and the attorney-client and deliberative privileges, in the context of Exemption 5, may be lost by disclosure.” (citations omitted)). And Protect Democracy’s assertion of waiver mostly overlaps with its argument regarding official acknowledgment: it claims “that the government’s public statements in the wake of the strike . . . waived privilege as to at least some of the material in either the memo and/or the talking points.” Pl.’s Mot. Summ. J. at 29.
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Protect Democracy argues two bases for official acknowledgement or waiver: first, public statements from government officials to the press after the strikes and, second, the OLC opinion released last May about the 2018 strikes. In the Court’s view, neither amounts to official acknowledgement.
The press statements are discussed in more detail below in the context of whether they officially acknowledged the content of press guidance documents prepared after the strike. It is enough to say here that they did not plausibly match the analysis in the legal memorandum closely enough to constitute official acknowledgement. None of the cited public statements mentioned the existence of a legal memorandum regarding the strikes, nor did any officials publicly state a legal rationale particularized enough that one could expect it to duplicate the analysis of a seven-page interagency memorandum. This case is therefore unlike the decision that Protect Democracy primarily relies on, where the Second Circuit found that the release of a “white paper” summarizing an OLC opinion and officials’ public statements acknowledging reliance on the OLC opinion together amounted to a waiver of any applicable privileges over the opinion. See N.Y. Times v. DOJ, 756 F.3d 100, 114–16 (2d Cir. 2014).
Nor does the recently released 2018 OLC opinion officially acknowledge the contents of the 2017 memorandum. In his declaration supporting the government’s supplemental brief, OLC official Paul Colborn states plainly that “[n]othing in the [2018] Opinion quotes from, describes, discloses, or even refers to the [2017 Opinion]. Indeed, no part of the [2018] Opinion makes any reference at all to any legal advice that OLC or any other government attorney did or did not provide to the President or his senior advisers prior to the 2017 military strike against the Al Shayrat airfield.” Third Decl. of Paul P. Colborn Supp. Defs.’ Mot. Summ. J. ¶ 9. The Court must accept this statement as true absent contrary evidence or signs that the agency is acting in
8

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bad faith—neither of which are present here. SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991); see also ACLU v. DOD, 628 F.3d at 621 (giving “substantial weight” to agency affidavit’s statement “that there are substantive differences between the content of the publically released government documents and the withheld information”). And contrary to Protect Democracy’s argument, in camera review of the 2017 memorandum is not warranted, as Mr. Colburn’s declaration provides sufficiently detailed information for the Court “to make a responsive de novo determination” regarding the question of official acknowledgment. Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978); see also ACLU v. CIA, 109 F. Supp. 3d 220, 243 (D.D.C. 2015) (declining to engage in in camera review where government declaration provided “detailed descriptions of [withheld] legal memoranda”). In short, Protect Democracy has not shown that “the information requested” in the 2017 memorandum “match[es] the information previously disclosed” in the 2018 memorandum. ACLU v. DOD, 628 F.3d at 620.
That leaves whether the legal memorandum is privileged, such that the agencies properly withheld it under Exemption 5. The Court finds that the withholding of the memorandum is justified under the presidential communications privilege, and it therefore need not decide whether the attorney-client or deliberative-process privileges would also support withholding.
The presidential communications privilege protects “documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential.” Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997). When properly invoked, the privilege broadly protects “documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.” Id. at 745. But as its name suggests, this privilege is narrow with respect to whose documents it protects. Materials are covered only if they were “authored or solicited and received by those members of an immediate White House adviser’s
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staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.” Id. at 752. If they meet that definition, the communications need not actually be relayed to the President himself, nor even to an immediate White House adviser, because “in many instances advisers must rely on their staff to investigate an issue and formulate the advice to be given to the President.” Id.
The legal memorandum here was not authored or solicited by the President himself. Rather, the government’s asserted basis for the privilege is that the advice in the document was solicited by the Deputy Legal Adviser of the National Security Council (“NSC”).4 According to the government, the Deputy’s role in the President’s national security decisionmaking, plus the fact that the opinion was solicited for the purpose of advising him on whether to launch the strike, means that the opinion is necessarily covered by the privilege.
The Court agrees. At the outset, the structure of the NSC shows that its Legal Adviser is the sort of “immediate White House adviser” whose national security documents are subject to protection by the privilege. The NSC sits within the Executive Office of the President and, among its other goals, works to “assess and appraise the objectives, commitments, and risks of the United States in relation to the actual and potential military power of the United States, and make recommendations thereon to the President.” 50 U.S.C. § 3021(b)(2). The Council consists of the President and Vice President, several cabinet members, and “a civilian executive secretary
4 In its summary judgment motion and accompanying declarations, the government revealed only that “staff’ to the NSC Legal Adviser solicited the opinion. In response to Protect Democracy’s argument that these assertions were not sufficiently specific, the government submitted a supplemental declaration explaining that the Deputy NSC Legal Adviser solicited and received the opinion, and that he also “coordinated with the interagency group of attorneys to create the document.” Suppl. Decl. of Eric F. Stein Supp. Defs.’ Mot. Summ. J ¶ 7.
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appointed by the President” who, in turn, may appoint a staff. Id. § 3021(c)(1), (e)(1)–(2). That staff includes a Legal Adviser who, in the current administration, carries the full title of “Deputy Assistant to the President, NSC Legal Advisor, and Deputy Counsel to the President for National Security Affairs.” Press Release, President Donald J. Trump Announces Key Additions to the Office of the White House Counsel (Mar. 7, 2017), https://perma.cc/W6Y9-EZB2. He attends all meetings of the so-called “Deputies Committee,” which is “the senior sub-Cabinet interagency forum for consideration of, and where appropriate, decision making on policy issues that affect the national security interests of the United States.” Organization of the National Security Council, Homeland Security Council, and Subcommittees, 82 F.R. 16881, 16883 (Apr. 4, 2017). In short, the Legal Adviser has “broad and significant responsibility for investigating and formulating the advice to be given the President” regarding national security. Sealed Case, 121 F.3d at 752. So if the Legal Adviser were to solicit a document related to a national security decision being contemplated by the President, it would no doubt be protected by the presidential communications privilege.
It follows that opinions solicited by the Deputy NSC Legal Adviser are no less protected. Again, the D.C. Circuit has expressly held that documents solicited by the staff of immediate White House advisers may be covered by the privilege. Sealed Case, 121 F.3d at 752 (shielding documents authored by a legal extern “at the request of the two associate White House Counsel with broad and significant responsibility” for a White House investigation). And based on the government’s declarations, it is clear that the Deputy NSC Legal Adviser is the sort of staff member that the D.C. Circuit had in mind when setting the scope of the privilege. As the government explains, the Deputy “has broad and significant responsibility for investigating and formulating advice to the President in matters that implicate the President’s decisions concerning
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foreign policy or national security.” Suppl. Decl. of Eric F. Stein Supp. Defs.’ Mot. Summ. J. (“Suppl. Stein Decl.”) ¶ 6. He is no line attorney. His full title is “Deputy Legal Advisor, Special Assistant to the President, and Senior Associate Counsel to the President.” He is the sole individual with that title. And unlike the officials whose documents the D.C. Circuit declined to protect in Judicial Watch, the Deputy has no official role outside the walls of the White House. Cf. 365 F.3d at 1117 (declining to extend privilege to documents solicited by DOJ officials).
Protect Democracy objects that “the government’s declarations are largely silent as to the role that both the [Deputy NSC Legal Adviser] and the supposed legal advice played” in the President’s decision of whether to launch the strikes. Pl.’s Reply at 8. It claims that, without more specific information on that front, the Court cannot be sure that the opinion was actually solicited to aid presidential decisionmaking.
To be sure, the government’s declarations provide little detail on the role of the legal opinion in the President’s decision. A declaration from a State Department official simply states that the Deputy Legal Adviser solicited the opinion “for the purpose of providing advice and recommendations to the President and other senior Executive Branch officials regarding the legal basis for potential military action.” Suppl. Stein Decl. ¶ 6. There is no indication that the President was briefed on the legal basis for the strike. But the government need not make a particularized showing about the role of a certain document in the President’s decision. Rather, the very nature of the decision here—whether to attack a foreign nation—assures the Court “that even if the President were not a party to the communications over which the government is asserting presidential privilege, these communications nonetheless are intimately connected to his presidential decisionmaking.” Sealed Case, 121 F.3d at 753. That is because commanding the armed forces, like appointing and removing the officers at issue in Sealed Case, is “a
12

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quintessential and nondelegable Presidential power.” Id. at 752; see U.S. Const. art. II, § 2, cl. 1.5 Thus, even if the legal analysis in the memorandum was not communicated to the President, the circumstances of its solicitation—by the staff of a close national security adviser leading up to an important military decision—shows that the document was created for the purpose of advising the President on that decision. It is protected by the presidential communications privilege and is therefore exempt from disclosure under FOIA Exemption 5.
B. OLC Outline The agencies have also withheld an “an unclassified outline, prepared by OLC attorneys for the purpose of advising the Attorney General regarding the legal basis” for the April 6 missile strike. Decl. of Paul P. Colborn Supp. Defs.’ Mot. Summ. J. (“First Colborn Decl.”) ¶ 19. The outline is not dated, but OLC believes that it was finalized on April 7, the day after the strike. See Defs.’ Mot. Summ. J. Ex. 6 (“Vaughn Index”) at 3. The Assistant Attorney General in charge of OLC used the outline “to assist him in providing oral legal advice to the Attorney General” regarding the legal basis for the strike. Id. The government claims that the outline is exempt from disclosure under Exemption 5 because it is covered by deliberative process privilege and by attorney-client privilege. The Court agrees with respect to the latter privilege, and thus need not decide whether the former also applies.
5 Of course, Protect Democracy doubts that the President has lawfully exercised this power—it seeks the interagency memorandum in part because it wants to expose the President’s lack of constitutional authority to launch the strikes. But an allegation that the executive’s decision was unlawful cannot render unprotected legal opinions he seeks in making that decision; legal opinions are most valuable in the face of legal indeterminacy. Rather, the relevant point for purposes of the privilege is that the President’s decision here—whether lawful or not—could not be delegated to another executive branch official, and thus the opinion by definition spoke to “governmental operations that . . . call ultimately for direct decisionmaking by the President.” Sealed Case, 121 F.3d at 752.
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An agency relying on attorney-client privilege to withhold a document under FOIA must show two things. First, that the document contains information communicated between an attorney and her client regarding “a legal matter for which the client has sought professional advice.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977). Protect Democracy concedes that the outline meets this requirement. Pl.’s Cross-Mot. Summ. J. at 16; see First Colborn Decl. ¶ 25. Second, that the communication “is based on confidential information provided by the client”—i.e., information that the client expected to remain confidential and that was not actually shared with a third party. Mead Data, 566 F.2d at 254. Protect Democracy challenges application of the privilege on this second ground. It specifically contends that the government has offered “nothing more than conclusory assertions” that confidentiality was maintained. Pl.’s Cross-Mot. Summ. J. at 16. The Court disagrees.
Mr. Colborn explains in his declaration that information in the outline—being based on legal advice provided in the interagency legal memorandum discussed above—“was intended to be confidential and to [his] knowledge has maintained its confidentiality.” First Colborn Decl. ¶ 25. The context of the document’s creation helps explain his expectation of confidentiality: “the outline was prepared by lawyers within OLC in preparation for providing legal advice to the Attorney General in connection with his role as chief legal adviser to the President.” Id. More specifically, the outline (at least in part) summarized legal advice that an interagency group of lawyers had given the President’s national security team the previous day—advice based on factual material provided to the lawyers by the President and his national security team—leading up to the strike. Id. ¶¶ 22, 25; see Second Decl. of Paul Colborn Supp. Defs.’ Mot. Summ. J. ¶ 3.
Protect Democracy is correct that, when invoking attorney-client privilege, the government cannot rely only on conclusory assertions that confidentiality was expected and
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maintained. See Mead Data, 566 F.2d at 255; Senate of the Com. of P.R. ex rel. Judiciary Comm. v. DOJ, 823 F.2d 574, (D.C. Cir. 1987) (“[W]here no factual support is provided for an essential element of the claimed privilege or shield, the label ‘conclusory’ is surely apt.”). But courts routinely endorse invocations of attorney-client privilege based on government declarations similar to Mr. Colborn’s—and, indeed, based on those of Colborn himself. See, e.g., N.Y. Times Co. v. DOJ, 282 F. Supp. 3d 234, 238–39 (D.D.C. 2017); Judicial Watch, 245 F. Supp. 3d at 33–34. The case might be different if there were a basis in the record from which to infer that the contents of the outline were shared beyond the Attorney General, OLC, and the President and his national security staff (as the ultimate “client” for which the advice was intended). See, e.g., Mead Data, 566 F.2d at 255 (observing that “cryptic description” of withheld document “show[ed] that at least part of its information base was not confidential”). But there is no evidence that the specific legal advice provided in the memorandum and summarized in the outline was disclosed beyond that group. And, if anything, the sensitive nature of the legal advice demands the opposite inference. N.Y. Times, 282 F. Supp. 3d at 240 (“Given its classified status, it seems unlikely the [withheld] Memo has been widely or indiscriminately circulated.”).
At bottom, based on the government’s description of the document and its declarations, the Court finds that the outline is the sort of document that would routinely be protected by attorney-client privilege in civil discovery. Its disclosure would undermine the purpose of the privilege: “to assure that a client’s confidences to his or her attorney will be protected, and therefore encourage clients to be as open and honest as possible with attorneys.” Coastal
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States, 617 F.2d at 862. The agencies were permitted to withhold the outline pursuant to Exemption 5.6
C. Talking Points The final category of withheld materials consists of several sets of talking points designed to assist Executive Branch officials in responding to inquiries from the press and from Congress. The documents have some differences—particularly in their format—but share a similar character. Those numbered 5, 6, 7, 9, 10, 12, and 13 in the Vaughn index are versions of a “press guidance” document containing “proposed guidance and a hypothetical question and proposed response.” Document 8 is described as a “Public Affairs Guidance” containing similar advice for high-level officials. Documents 14 and 15 consist of proposed answers to expected questions from Congress. The government asserts that each of these documents is protected by the deliberative process privilege and therefore properly withheld under Exemption 5. Deliberative process privilege “covers ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (quoting Sears, 421 U.S. at 150). To establish that a document is covered by the privilege, the government must show that it is both “predecisional” and “deliberative.” Coastal States, 617 F.2d at 866. A predecisional communication is one that “occurred before any final agency decision on the relevant matter.” Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014). A deliberative
6 Protect Democracy raises the same argument regarding official acknowledgement for the OLC outline as it did for the interagency legal memorandum. For the same reason that the Court rejected its official-acknowledgement argument for the memorandum, it also does so for the outline. None of the public statements that Protect Democracy cites mention the outline, nor do they plausibly match its substance.
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communication is one that “reflects the give-and-take of the consultative process.” Coastal States, 617 F.2d at 866.
Protect Democracy’s main argument is that, because the guidance documents were created after the missile strike, they cannot have been predecisional or deliberative. This argument has an intuitive ring, as “communications made after [a] decision and designed to explain it” are generally not covered by the deliberative process privilege. Sears, 421 U.S. at 152. But courts have generally found that documents created in anticipation of press inquiries are protected even if crafted after the underlying event about which the press might inquire. Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 187–88 (D.D.C. 2017); Freedom Watch, Inc. v. NSA, 49 F. Supp. 3d 1, 8 (D.D.C. 2014); Judicial Watch, Inc. v. Dep’t of Comm., 337 F. Supp. 2d 146, 174 (D.D.C. 2004). The idea is that these sorts of documents reflect deliberation about the decision of how to respond to the press—or, as relevant in this case, to members of Congress.
That is true of the talking-point documents here. Having reviewed all of them in camera, the Court concludes that they qualify as predecisional and deliberative. Revealing their contents would expose the process by which agency officials crafted a strategy for responding to the press and to Congress. Even if many of the documents summarize and collate facts rather than propose conclusions, “[t]he decision to include or exclude certain factual information in or from analytical documents is itself an important part of the deliberative process.” Decl. of Daniel R. Castellano Supp. Defs.’ Mot. Summ. J. ¶ 38; see Mead Data, 566 F.2d at 256 (“In some circumstances, . . . the disclosure of even purely factual material may so expose the deliberative process within an agency that it must be deemed exempted by [Exemption 5].”).
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As it did with the other categories of documents, however, Protect Democracy contends that even if these documents are privileged, the government has officially acknowledged or waived privilege over their contents through public statements. See Coastal States, 617 F.2d at 866 (“[E]ven if [a] document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.”). The Court upon reviewing the parties’ motions for summary judgment found this argument plausible with respect to the talking-point documents and has now reviewed all of those documents in camera. Based on that review, it finds that most of their content has not been officially acknowledged, nor has the deliberative process privilege been otherwise waived.
With one exception. At least one government official has, in an on-the-record statement, replicated a paragraph that appears in several of the guidance documents.7 Even though the agencies’ formulation of this explanatory paragraph would otherwise be protected by deliberative process privilege and thus covered by Exemption 5, the government’s official acknowledgement renders the exemption inapplicable. See Fitzgibbon, 911 F.2d at 765 (“[W]hen information has been ‘officially acknowledged,’ its disclosure may be compelled even over an agency’s otherwise valid exemption claim.”); Sealed Case, 121 F.3d at 741 (“[R]elease of a document only waives . . . privileges for . . . information specifically released, and not for related materials.”). The government must release the portions of the talking-point documents
7 The Court cannot get more specific at this juncture; identifying the relevant material in this opinion would effectively deprive the government of a chance to appeal this ruling. If the government is not able to identify which portion of the guidance documents must be disclosed, the Court can do so ex parte.
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that contain this paragraph, as they are reasonably segregable from the remainder of each document.8
IV. Conclusion The Court concludes that the legal memorandum (documents 1 through 3 in the Vaughn
index) was properly withheld under FOIA Exemption 5 because it would routinely be covered by the presidential communications privilege. The OLC outline (document 4) was properly withheld under that exemption because it is protected by attorney-client privilege. As for the press guidance documents (documents 5 through 15), the Court finds that the documents were properly withheld as a general matter, but that certain of their contents have been disclosed to the public and thus must be released to Protect Democracy.
The Court will therefore grant in part and deny in part both parties’ cross-motions for summary judgment. A separate order accompanies this memorandum opinion.

Date: August 21, 2018

CHRISTOPHER R. COOPER United States District Judge

8 Protect Democracy contends that more information was officially acknowledged through the publication of a document called “Basis for Using Force” on a national security blog. See Marty Lederman, (Apparent) Administration Justifications for Legality of Strikes Against Syria, Take Care (Apr. 8, 2017) (reproduced in Pl.’s Mot. Summ. J. Ex. I). There is no evidence, however, that this document was “made public through an official and documented disclosure,” as would be required for it to force disclosure of any duplicative information withheld under Exemption 5. ACLU v. DOD, 628 F.3d at 621 (emphasis added). Rather, all signs point to its publication being the result of “an anonymous leak,” which “is presumptively an unofficial and unsanctioned act.” Judicial Watch, Inc. v. DOJ, 898 F. Supp. 2d 93, 108 (D.D.C. 2012); see Lederman, supra (“The following document has begun to circulate outside the government. . . . I have not confirmed, however, whether it is a final, approved draft, who its authors are, and/or whether it will receive a more formal distribution.”).
19

 </s> Case: 1:17-cv-00842-CRC As of: 03/26/2019 04:13 PM EDT 1 of 7
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17−cv−00842−CRC

CLOSED

PROTECT DEMOCRACY PROJECT, INC. v. U.S. DEPARTMENT OF DEFENSE et al Assigned to: Judge Christopher R. Cooper Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 05/08/2017 Date Terminated: 08/27/2018 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

PROTECT DEMOCRACY PROJECT, INC.

represented by Anne Harden Tindall PROTECT DEMOCRACY PROJECT 2020 Pennsylvania Avenue, NW #163 Washington, DC 20006 (202) 856−9191 Fax: (929) 777−8428 Email: anne.tindall@protectdemocracy.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin Leon Berwick PROTECT DEMOCRACY PROJECT, INC. 10 Ware Street Cambridge, MA 02138 (202) 599−0466 Fax: (929) 777−8428 Email: ben.berwick@protectdemocracy.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin G. Florence PROTECT DEMOCRACY PROJECT 2020 Pennsylvania Avenue, NW #163 Washington, DC 20006 (202) 599−0466 Fax: (929) 777−8428 Email: justin.florence@protectdemocracy.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven A. Hirsch KEKER, VAN NEST & PETERS LLP 633 Battery Street San Franisco, CA 94111 (415) 391−5400 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Allison F. Murphy PROTECT DEMOCRACY PROJECT 2020 Pennsylvania Avenue, NW #163 Washington, DC 20006 (202) 417−2341 Email: allison.murphy@protectdemocracy.org TERMINATED: 08/01/2018

Case: 1:17-cv-00842-CRC As of: 03/26/2019 04:13 PM EDT 2 of 7

Cameron Oatman Kistler PROTECT DEMOCRACY PROJECT 2020 Pennsylvania Avenue, NW #163 Washington, DC 20006 (202) 236−1661 Email: cameron.kistler@protectdemocracy.org ATTORNEY TO BE NOTICED
David H. Remes 1106 Noyes Drive Silver Spring, MD 20910 (202) 669−6508 Email: remesdh@gmail.com TERMINATED: 05/07/2018

V. Defendant U.S. DEPARTMENT OF DEFENSE
Defendant U.S. DEPARTMENT OF JUSTICE
Defendant U.S. DEPARTMENT OF STATE

represented by Kathryn Celia Davis U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Room 6130 Washington, DC 20530 (202) 616−8298 Fax: (202) 616−8470 Email: Kathryn.C.Davis@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kathryn Celia Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kathryn Celia Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/08/2017
05/08/2017 05/08/2017
05/22/2017

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090−4943202) filed by PROTECT DEMOCRACY PROJECT, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 LCvR 7.1 Disclosure Certificate)(Murphy, Allison) (Entered: 05/08/2017)
Case Assigned to Judge Christopher R. Cooper. (sth) (Entered: 05/08/2017)
2 SUMMONS (5) Issued Electronically as to U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(sth) (Entered: 05/08/2017)
3 MOTION for Preliminary Injunction by PROTECT DEMOCRACY PROJECT, INC. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit

Case: 1:17-cv-00842-CRC As of: 03/26/2019 04:13 PM EDT 3 of 7

05/23/2017 05/23/2017 06/01/2017 06/02/2017 06/02/2017 06/02/2017 06/02/2017 06/06/2017
06/06/2017 06/13/2017
06/20/2017 06/23/2017 06/26/2017 06/27/2017

C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Declaration Declaration of Ian Bassin)(Murphy, Allison) (Entered: 05/22/2017)
4 NOTICE of Appearance by Benjamin Leon Berwick on behalf of PROTECT DEMOCRACY PROJECT, INC. (Berwick, Benjamin) (Entered: 05/23/2017)
5 CERTIFICATE OF SERVICE by PROTECT DEMOCRACY PROJECT, INC. re 3 MOTION for Preliminary Injunction and Supporting Memorandum. (Murphy, Allison) (Entered: 05/23/2017)
6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/24/2017. Answer due for ALL FEDERAL DEFENDANTS by 6/23/2017. (Attachments: # 1 Exhibit Signed certified mail card)(Murphy, Allison) (Entered: 06/01/2017)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 05/24/2017. (Attachments: # 1 Exhibit)(Murphy, Allison) Modified on 6/6/2017 (zrdj). (Entered: 06/02/2017)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. All Defendants (Attachments: # 1 signed certified mail card to DoD, # 2 signed certified mail card to DOJ, # 3 signed certified mail card to State)(Murphy, Allison) Modified on 6/6/2017 (zrdj). (Entered: 06/02/2017)
9 NOTICE of Appearance by Kathryn Celia Davis on behalf of U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE (Davis, Kathryn) (Entered: 06/02/2017)
10 Unopposed MOTION for Extension of Time to File Response/Reply as to 3 MOTION for Preliminary Injunction by U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Davis, Kathryn) (Entered: 06/02/2017)
MINUTE ORDER granting 10 Motion for Extension of Time to File Response/Reply: It is hereby ORDERED that the deadline for Defendants to file an opposition to Plaintiff's Motion for a Preliminary Injunction is extended to June 13, 2017, with any reply by Plaintiff due June 20, 2017. Signed by Judge Christopher R. Cooper on 6/6/2017. (lccrc1) (Entered: 06/06/2017)
Set/Reset Deadlines: Opposition due by 6/13/2017. Reply due by 6/20/2017. (nbn) (Entered: 06/06/2017)
11 Memorandum in opposition to re 3 MOTION for Preliminary Injunction filed by U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Attachments: # 1 Exhibit Email to Ian Bassin, # 2 Exhibit Order 03−2078, # 3 Exhibit Order 00−1396, # 4 Exhibit Order 06−1773, # 5 Exhibit Order 06−0096, # 6 Text of Proposed Order)(Davis, Kathryn) (Entered: 06/13/2017)
12 REPLY to opposition to motion re 3 MOTION for Preliminary Injunction filed by PROTECT DEMOCRACY PROJECT, INC.. (Berwick, Benjamin) (Entered: 06/20/2017)
13 ANSWER to Complaint by U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE.(Davis, Kathryn) (Entered: 06/23/2017)
MINUTE ORDER: It is hereby ORDERED that the parties shall appear for a hearing on Plaintiff's Motion for a Preliminary Injunction on Friday, July 7, at 10:00 AM, in Courtroom 27A. Signed by Judge Christopher R. Cooper on 6/26/2017. (lccrc1) (Entered: 06/26/2017)
Set/Reset Hearings: Motion Hearing set for 7/7/2017 at 10:00 AM in Courtroom 27A before Judge Christopher R. Cooper. (lsj) (Entered: 06/27/2017)

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07/07/2017
07/13/2017 07/13/2017 07/13/2017 07/19/2017

Minute Entry for Motion Hearing held before Judge Christopher R. Cooper on 7/7/2017. Motion 3 for Preliminary Injunction argued. Motion taken under advisement; forthcoming Order. (Court Reporter Lisa Moreira) (lsj) (Entered: 07/07/2017)
14 MEMORANDUM OPINION re: 3 Plaintiff's Motion for Preliminary Injunction. Signed by Judge Christopher R. Cooper on 7/13/2017. (lccrc1) (Entered: 07/13/2017)
15 ORDER granting in part and denying in part 3 Motion for Preliminary Injunction. (See Order for details.). Signed by Judge Christopher R. Cooper on 7/13/2017. (lccrc1) (Entered: 07/13/2017)
Set/Reset Deadlines: Status Report due by 7/28/2017. Responses to Defendants' timeline, including its own proposal for processing and production due by 8/2/2017. (lsj) (Entered: 07/13/2017)
16 TRANSCRIPT OF MOTION HEARING before Judge Christopher R. Cooper held on July 7, 2017; Page Numbers: 1−33. Date of Issuance:July 19, 2017. Court Reporter/Transcriber Lisa A. Moreira, RDR, CRR, Telephone number 202−354−3187, Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

07/28/2017 08/02/2017 08/04/2017
08/04/2017 09/15/2017 09/19/2017

Redaction Request due 8/9/2017. Redacted Transcript Deadline set for 8/19/2017. Release of Transcript Restriction set for 10/17/2017.(Moreira, Lisa) (Entered: 07/19/2017)
17 STATUS REPORT by U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Davis, Kathryn) (Entered: 07/28/2017)
18 RESPONSE re 17 Status Report filed by PROTECT DEMOCRACY PROJECT, INC.. (Murphy, Allison) Modified link on 8/3/2017 (znmw). (Entered: 08/02/2017)
MINUTE ORDER: In light of Defendants' Status Report and Plaintiff's Response, it is hereby ORDERED that Defendants shall provide an interim response to Plaintiff's FOIA request by August 18, 2017, including those records described in the status report which are most relevant to Plaintiff's request and any additional responsive documents that have been processed. It is further ORDERED that Defendants shall provide a final response to Plaintiff's request by September 8, 2017. After that date, the parties are directed to meet and confer in an effort to resolve any outstanding disputes, including the need for and timing of the production of a Vaughn index. No later than September 15, 2017, the parties shall file a joint status report with the Court, indicating whether there are any outstanding issues, and if so, proposing a timeline for further proceedings. Signed by Judge Christopher R. Cooper on 8/4/2017. (lccrc1) (Entered: 08/04/2017)
19 RESPONSE re 18 Response to Document filed by U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Davis, Kathryn) (Entered: 08/04/2017)
20 Joint STATUS REPORT by U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Davis, Kathryn) (Entered: 09/15/2017)
MINUTE ORDER: In light of the 15 Joint Status Report, it is hereby ORDERED that Defendants' Motion for Summary Judgment and Final Vaughn Index is due on or before November 3, 2017; Plaintiff's Opposition is due on or before November 24,

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09/19/2017 10/30/2017 11/01/2017 11/03/2017
11/05/2017 11/17/2017
12/01/2017 12/08/2017
12/08/2017 12/19/2017 12/20/2017 01/09/2018

2017; and Defendants' Reply is due on or before December 8, 2017. Signed by Judge Christopher R. Cooper on 9/19/2017. (lccrc1) (Entered: 09/19/2017)
Set/Reset Deadlines: Summary Judgment motions and Vaughn Index due by 11/3/2017. Response to Motion for Summary Judgment due by 11/24/2017. Reply to Motion for Summary Judgment due by 12/8/2017. (lsj) (Entered: 09/19/2017)
21 MOTION to Bifurcate Briefing or, In the Alternative, For an Extension of Time to File Motion for Summary Judgment by U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Davis, Kathryn). Added MOTION for Extension of Time to File on 10/31/2017 (znmw). (Entered: 10/30/2017)
22 Memorandum in opposition to re 21 MOTION to Bifurcate Briefing or, In the Alternative, For an Extension of Time to File Motion for Summary Judgment MOTION for Extension of Time to File filed by PROTECT DEMOCRACY PROJECT, INC.. (Berwick, Benjamin) (Entered: 11/01/2017)
MINUTE ORDER: It is hereby ORDERED that 21 Defendants' Motion to Bifurcate Briefing is DENIED; and 21 Defendants' Motion for Extension of Time to File Motion for Summary Judgment is GRANTED. Defendants' motion for summary judgment is due on or before November 17, 2017; Plaintiff's opposition is due on or before December 8, 2017; and Defendants' reply is due on or before December 22, 2017. Signed by Judge Christopher R. Cooper on 11/3/2017. (lccrc1) (Entered: 11/03/2017)
23 NOTICE of Appearance by David H. Remes on behalf of PROTECT DEMOCRACY PROJECT, INC. (Remes, David) (Entered: 11/05/2017)
24 MOTION for Summary Judgment by U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 − Castellano Decl., # 3 Exhibit 2 − Colborn Decl., # 4 Exhibit 3 − Tiernan Decl., # 5 Exhibit 4 − Herrington Decl., # 6 Exhibit 5 − Stein Decl., # 7 Exhibit 6 − Vaughn Index, # 8 Exhibit 7 − Gaviria Decl., # 9 Statement of Facts, # 10 Text of Proposed Order)(Davis, Kathryn) (Entered: 11/17/2017)
25 Unopposed MOTION to Amend/Correct Order on Motion to Bifurcate,, Order on Motion for Extension of Time to File, , Unopposed MOTION for Extension of Time to File Response/Reply by PROTECT DEMOCRACY PROJECT, INC. (Attachments: # 1 Text of Proposed Order)(Murphy, Allison) (Entered: 12/01/2017)
26 Cross MOTION for Summary Judgment and In Opposition to Defendants' Motion for Summary Judgment by PROTECT DEMOCRACY PROJECT, INC. (Attachments: # 1 Certificate of Service, # 2 Memorandum in Support, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Statement of Facts, # 14 Text of Proposed Order)(Murphy, Allison) (Entered: 12/08/2017)
27 Memorandum in opposition to re 24 MOTION for Summary Judgment filed by PROTECT DEMOCRACY PROJECT, INC.. (See Docket Entry 26 to view document). (znmw) (Entered: 12/11/2017)
MINUTE ORDER granting 25 Plaintiffs' Unopposed Motion to Modify Briefing Schedule. Defendants' combined opposition and reply is due January 9, 2018. Plaintiff's reply is due January 23, 2018. Signed by Judge Christopher R. Cooper on 12/19/2017. (lccrc1) (Entered: 12/19/2017)
Set/Reset Deadlines: Responses due by 1/9/2018. Replies due by 1/23/2018. (lsj) (Entered: 12/20/2017)
28 REPLY to opposition to motion re 26 Cross MOTION for Summary Judgment and In Opposition to Defendants' Motion for Summary Judgment filed by U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Attachments: # 1 Exhibit Suppl. Stein Decl., # 2 Exhibit Second Colborn Decl., # 3 Statement of Facts, # 4 Text of Proposed Order)(Davis, Kathryn) (Entered: 01/09/2018)

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01/09/2018
01/23/2018
04/09/2018 04/16/2018 04/25/2018
04/25/2018 05/04/2018 05/07/2018 06/05/2018 06/05/2018 06/19/2018
07/03/2018
07/26/2018 08/01/2018 08/01/2018 08/01/2018

29 Memorandum in opposition to re 26 Cross MOTION for Summary Judgment and In Opposition to Defendants' Motion for Summary Judgment filed by U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Attachments: # 1 Exhibit Suppl. Stein Decl., # 2 Exhibit Second Colborn Decl., # 3 Statement of Facts, # 4 Text of Proposed Order)(Davis, Kathryn) (Entered: 01/09/2018)
30 REPLY to opposition to motion re 26 Cross MOTION for Summary Judgment and In Opposition to Defendants' Motion for Summary Judgment filed by PROTECT DEMOCRACY PROJECT, INC.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Certificate of Service)(Murphy, Allison) (Entered: 01/23/2018)
31 NOTICE of Recent Developments by PROTECT DEMOCRACY PROJECT, INC. re 30 Reply to opposition to Motion, (Murphy, Allison) (Entered: 04/09/2018)
32 RESPONSE re 31 Notice (Other) filed by U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Davis, Kathryn) (Entered: 04/16/2018)
33 ORDER. Defendants by May 4, 2018 shall produce the documents numbered 5−15 in the Vaughn index (ECF No. 24−7) for the Court's in camera review. See full Order for details. Signed by Judge Christopher R. Cooper on 4/25/2018. (lccrc1) (Entered: 04/25/2018)
Set/Reset Deadlines: Vaughn Index due by 5/4/2018 (lsj) (Entered: 04/25/2018)
34 NOTICE of Delivery for In Camera Inspection by U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE (Davis, Kathryn) (Entered: 05/04/2018)
35 NOTICE OF WITHDRAWAL OF APPEARANCE as to PROTECT DEMOCRACY PROJECT, INC.. Attorney David H. Remes terminated. (Remes, David) (Entered: 05/07/2018)
36 ORDER. Defendants shall file a supplemental brief by June 19, 2018. Plaintiff shall file any response to that brief by July 3, 2018. See full Order for details. Signed by Judge Christopher R. Cooper on 6/5/2018. (lccrc1) (Entered: 06/05/2018)
Set/Reset Deadlines: Supplemental Brief due by 6/19/2018. Responses to brief due by 7/3/2018 (lsj) (Entered: 06/05/2018)
37 RESPONSE TO ORDER OF THE COURT re 36 Order filed by U.S. DEPARTMENT OF DEFENSE, U.S. DEPARTMENT OF JUSTICE, U.S. DEPARTMENT OF STATE. (Attachments: # 1 Exhibit First Suppl. Gaviria Decl., # 2 Exhibit Third Colborn Decl.)(Davis, Kathryn) (Entered: 06/19/2018)
38 RESPONSE to Defendants' Supplemental Brief 37 in Response to the Court's Order of June 5, 2018 filed by PROTECT DEMOCRACY PROJECT, INC.. (Attachments: # 1 Certificate of Service)(Florence, Justin) Modified text on 7/5/2018 (ztd). (Entered: 07/03/2018)
39 NOTICE of Appearance by Cameron Oatman Kistler on behalf of PROTECT DEMOCRACY PROJECT, INC. (Kistler, Cameron) (Entered: 07/26/2018)
40 NOTICE OF WITHDRAWAL OF APPEARANCE as to PROTECT DEMOCRACY PROJECT, INC.. Attorney Allison F. Murphy terminated. (Murphy, Allison) (Entered: 08/01/2018)
41 NOTICE of Appearance by Anne Harden Tindall on behalf of PROTECT DEMOCRACY PROJECT, INC. (Tindall, Anne) (Entered: 08/01/2018)
42 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Steven A. Hirsch, :Firm− Keker, Van Nest & Peters LLP, :Address− 633 Battery Street San Francisco, CA 94111−1809. Phone No. − (415) 391−5400. Filing fee $ 100, receipt number 0090−5615183. Fee Status: Fee Paid. by PROTECT DEMOCRACY PROJECT, INC. (Tindall, Anne) (Entered: 08/01/2018)

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08/03/2018 08/21/2018 08/21/2018

MINUTE ORDER granting 42 Plaintiff's Motion to Admit Attorney Steven A. Hirsch Pro Hac Vice. Signed by Judge Christopher R. Cooper on 8/3/2018. (lccrc1) (Entered: 08/03/2018)
43 ORDER granting in part and denying in part 24 Defendants' Motion for Summary Judgment; and granting in part and denying in part 26 Plaintiff's Cross−Motion for Summary Judgment. Signed by Judge Christopher R. Cooper on 8/21/2018. (lccrc1) (Entered: 08/21/2018)
44 MEMORANDUM OPINION re 43 Order. Signed by Judge Christopher R. Cooper on 8/21/2018. (lccrc1) (Entered: 08/21/2018)


[CONTENT] July 31, 2017 | the Democracy Project, Inc. | the United States ||| Department of State | Department of Defense | the Department of Justice | the Freedom of Information Act | FOIA | 5 | U.S.C. | 552 |||  ||| April 6, 2017 | Trump | Tomahawk | Syrian | Congress | Syrian | Barack Obama ||| FOIA |||  ||| About one month later | two ||| July 13, 2017 | U.S. | Christopher R. Cooper | FOIA | the April 6, 2017 | Syria ||| 263 | 293 ||| September 8, 2017 | FOIA ||| November 17, 2017 | December 8, 2017 | FOIA ||| April 25, 2018 | Cooper | FOIA ||| May 4, 2018 ||| August 21, 2018 | Cooper ||| 320 | 162 |||  ||| March 23, 2019 [SUMMARY] On July 31, 2017, plaintiff, the Democracy Project, Inc., filed this lawsuit in the United States District Court for the District of Columbia. The plaintiff sought injunctive relief against defendants Department of State, Department of Defense, and the Department of Justice under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The plaintiff is a nonpartisan nonprofit organization whose focus is on informing the public of operations and activities of the government by gathering and disseminating information likely to contribute significantly to the public understanding of executive branch operations and activities.

On April 6, 2017, President Trump ordered Tomahawk cruise missile strikes against a Syrian-government airbase without obtaining prior authorization from Congress (a Syrian-based policy promised by former President Barack Obama) and without articulating the legal justification for the strikes. The plaintiff submitted FOIA requests to the defendants the following day for all records “reflecting, discussing, or otherwise relating” to the strike “and/or the President’s legal authority to launch such a strike”. The plaintiff asked for these requests to be processed on an expedited basis. About one month later, having received none of the requested documents and having two of its expedited processing requests denied, the plaintiff brought this suit and filed a motion for preliminary injunction to have the documents produced by a date certain.

On July 13, 2017, U.S. District Judge Christopher R. Cooper granted in part and denied in part the plaintiff’s motion for preliminary injunction, directing the defendants to process the FOIA requests on an expedited basis, but not by a certain date, and to limit the request to documents specifically related to the legal justifications for the April 6, 2017 Syria Strikes. 263 F.Supp.3d 293.

On September 8, 2017, the defendants made a production pursuant to the FOIA requests, but the plaintiff contested that the production was too heavily redacted and insufficient. On November 17, 2017, the defendants filed a motion for summary judgment, with the plaintiff filing a cross-motion for summary judgment on December 8, 2017, on the question of whether the defendants’ withholding of some documents was justified under various FOIA exemptions. On April 25, 2018, Judge Cooper, in reviewing the parties’ cross-motions, determined that he needed to also review the documents before it could resolve the dispute, and he ordered that the defendants produce documents that it had claimed were exempted under FOIA for an in-camera review by the court. On May 4, 2018, the defendants complied with the order and delivered the documents to the court. 

On August 21, 2018, Judge Cooper granted in part and denied in part each party’s motion for summary judgment. 320 F.Supp.3d 162. He found that, for the most part, the defendants’ withholdings were justified; however, he also found that some information in the documents had already been officially acknowledged, so that the defendants could not withhold that information. As of March 23, 2019, there has been no further filings or movement in the case, and the case appears to be closed.