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@ CAUSE ' ofACTION

Advocates for Government Accountability

A 501(c)(3) Nonprofit Corporat ion

March 25, 2014
VIA FIRST CLASS MAIL

Ms. Ramona Romero General Counsel Room 107-W Jamie L. Whitten Federal Building U.S. Department of Agriculture 1400 Independence Avenue, SW Washington, DC 20250-1400
Re: Freedom of Information Act Appeal, FOIA No. ECM-7944830

Dear Ms. Romero: This is an appeal from the action of the U.S. Department of Agriculture (USDA) on Cause of Action's Freedom of Information Act (FOIA) request concerning the review of agency documents by the White House -- an opaque vetting process that has hindered access to records throughout the federal government. 1
Procedural Background

On November 26,2013, Cause of Action submitted a FOIA request to USDA seeking access to "records reflecting communications between ( 1) The Office of White House Counsel and the [USDA] FOIA Office, and (2) The Office of White House Counsel and the USDA Office of the General Counsel, concerning the Office of White House Counsel's review of agency records" from January 1, 2012 to November 26, 2013. 2

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See CAUSE OF ACTION, GRADING THE GOVERNMENT: HOW THE WHITE HOUSE TARGETS DOCUMENT REQUESTERS (Mar. 18, 2014), available at http://causeofaction.org/grading-govemment-white-house-targets-documentrequesters/. See also C.J. CiaremeJla, Report: White House Review Hindering FOIA Releases, FREE BEACON (Mar. 21, 20 14), http://freebeacon.com/report-white-house-review-hindering-foia-releases/ (discussing Cause of Action's March 18, 2014 report); Aaron Stem, Report: Obama Administration Skirted FOIA From the Start, NEWSMAX (Mar. 20, 20 14), http://www.newsmax.com/newsfront/obama-foia-white-house-2009-memo/20 14/03/20/id/560781 / (same); Mark Tapscott, 'Most Transparent' White House Ever Rewrote the FOIA To Suppress Politically Sensitive Docs, WASH. EXAM'R (Mar. 18, 2014), http://washingtonexaminer.com/most-transparent-white-house-ever-rewrotethe-foia-to-suppress-politicaiiy-sensitive-docs/article/2545824 (same); Becket Adams, Obama White House Quietly Amended Rules Regarding the Freedom of Information Act: Report, THE BLAZE, (Mar. 18, 20 14), http://www. theb laze.com/stories/20 14/03/18/obama-wh ite-house-q ui etly-amended-rules-regarding-the-freedom -ofinformation-act-report/ (same). 2 Letter from Cause of Action to Alexis R. Graves, Departmental FOIA Officer, U.S. Dep't of Agr. (Nov. 26, 2013) [hereinafter FOIA Request] (enclosed as Exhibit 1).

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Ms. Ramona Romero March 25, 2014 Page 2

On February 27, 2014, USDA provided Cause of Action with a final response to its request, indicating that 51 pages of responsive records had been located. 3 Of these 51 pages, USDA released "approximately 9 pages in full" and withheld "approximately" 42 pages in full or in part. 4 USDA's response explained that most of the withheld material was protected from disclosure pursuant to Exemption 5, 5 U.S.C. § 552(b)(5), and that a "minimal amount of information" was being withheld pursuant to Exemption 6, 5 U.S.C. § 552(b)(6). 5
The Attorney-Client Privilege Does Not Protect Communications Between USDA and the White House Counsel's Office

In its final response, USDA stated that Exemption 5 was invoked, in part, to withhold responsive records that are protected by "attorney-client privilege," including "confidential communications ... relating to a legal matter for which the client has sought professional advice," as well as "any opinions the attorney gives to the client based upon those facts" provided by the client in the course of the legal relationship or which "reflect client-supplied information." 6 Among the records that USDA withheld under this privilege were "confidential communication between OGC and the Office ofthe White House Counsel" 7 The attorney-client privilege, however, does not apply to communications between the White House Counsel's Office and USDA, as discussed below. The attorney-client privilege protects confidential communications made by a client to an attorney "for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding." 8 In the governmental context, an agency is the "client" and its departmental counsel is the "attorney." 9 The privilege properly applies only to communications created in the context of an actual attorney-client relationshiPc, and not simply whenever an agency communicates with another entity composed of lawyers. 0 Indeed, the privilege "must be 'strictly confined within the narrowest possible limits consistent with the logic of its principle. "' 11 Quite simply, the White House Counsel's Office does not provide legal services to USDA (or to other agencies), but rather provides legal assistance to the President and the White House staff in their official capacities. 12 USDA has not identified any facts or cited any legal authority that suggests that an attorney-client relationship exists between the agency

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Letter from Shawn S. McGruder, Assistant Gen. Counsel, Gen. Law & Research Div., Office of Gen. Counsel, U.S. Dep't of Agr. (Feb. 27, 2014) [hereinafter McGruder Letter] (enclosed as Exhibit 2). 4 /d. 5 /d. Cause of Action does not challenge the agency's Exemption 6 withholdings.
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McGruder Letter, supra note 3. In reSealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984). 9 See Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997). 10 See Brinton v. Dep 't ofState, 636 F.2d 600, 603 (D.C. Cir. 1980) ("[T]he attorney-client privilege applies only when information is the product of an attorney-client relationship and is maintained as confidential between attorney and client."). 11 In re Lindsey, 148 F.3d 1100, 1108 (D.C. Cir. 1998) (citation omitted), 12 /n re Lindsey, 158 F.3d 1263, 1268 n.l (D.C. Cir. 1998) (referencing White House Counsel's declaration that "White House Counsel's Office provides confidential counsel to the President in his official capacity, to the White House as an institution, and to senior advisors about legal matters that affect the White House's interests").

Ms. Ramona Romero March 25,2014 Page 3

and the White House Counsel's Office. Accordingly, Cause of Action's request should be remanded for reprocessing.
USDA's Reliance on Exemption 5 Appears to be Overbroad

Further, Cause of Action believes that USDA may have failed to release segregable, nonexempt information withheld under Exemption 5. With rare exception, USDA has failed to release any substantive content from the responsive records, instead providing Cause of Action with e-mails consisting only of friendly salutations, contact information for department employees, and e-mail privacy statements. In light of the volume of the withheld records, one would expect at least some of these e-mails to contain segregable, non-exempt information of a substantive nature. Instead, USDA redacted the e-mail exchanges in sizeable blocks. This suggests that a careful, line-by-line review might not have been undertaken. The failure to carefully review responsive records is contrary to the explicit mandate of the FOIA, which requires that an agency release "any reasonably segregable portion of a record." 13 As the Attorney General has explained, agencies "should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure." 14
USDA May Not Have Adequately Searched for Responsive Records

The agency's final response states that a search for responsive records was performed "within OGC'sfiles." 15 But the scope of Cause of Action's request is not limited to communications between White House Counsel's Office and OGC, but includes communications between the White House Counsel's Office and USDA's FOIA office. 16 Therefore, it is unclear why the files of the FOIA office were not also searched, or, if they were, why USDA has not indicated as much. Thank you for your attention to this matter. Sincerely,

ALLAN BLUTSTEIN MANAGING COUNSEL

Encls.
5 u.s.c. § 552(b). Attorney General's Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of Information Act I (March 19, 2009), available at http://www.justice.gov/ag/foia-memo-march2009.pdf. 15 McGruder Letter, supra note 3 (emphasis added). 16 The agency's final response misquoted Cause of Action's request by omitting our reference to USDA's FOIA office. Compare FOIA Request, supra note 2, with McGruder Letter, supra note 3.
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