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Case 1:17-cv-00842-CRC Document 24-1 Filed 11/17/17 Page 1 of 43

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY


PROJECT, INC.,

Plaintiff,

v. No. 17-cv-0842-CRC

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

Defendants.

DEFENDANTS’ MEMORANDUM OF LAW IN


SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Case 1:17-cv-00842-CRC Document 24-1 Filed 11/17/17 Page 2 of 43

TABLE OF CONTENTS

INTRODUCTION ......................................................................................................................... 1
BACKGROUND ........................................................................................................................... 1
I. Plaintiff’s FOIA Requests and Defendants’ Responses..................................................... 1
A. OIP’s Response ...................................................................................................... 2
B. OLC’s Response .................................................................................................... 3
C. NSD’s Response .................................................................................................... 3
D. DOD’s Response.................................................................................................... 4
E. State’s Response .................................................................................................... 4
II. Statutory Background and Standard of Review ................................................................. 5
ARGUMENT ................................................................................................................................. 6
I. Defendants Fulfilled Their Obligation Under FOIA to Conduct Adequate Searches for
Responsive Records. .......................................................................................................... 6
A. OIP’s Searches of the Office of the Attorney General and Office of the Deputy
Attorney General Were Adequate. ......................................................................... 7
B. OLC’s Search Was Adequate. ............................................................................... 8
C. NSD’s Search Was Adequate. ............................................................................... 9
D. DOD’s Search of the Office of General Counsel and the Joint Staff Were
Adequate. ............................................................................................................. 10
E. State’s Search of the Office of Legal Adviser Was Adequate. ............................ 11
II. Defendants Properly Asserted FOIA Exemption 5 to Withhold In Part or In Full
Information Protected from Disclosure. .......................................................................... 13
A. Defendants Properly Withheld Information Protected by the Presidential
Communications Privilege. .................................................................................. 13
B. Defendants Properly Withheld Information Protected by the Attorney-Client
Privilege. .............................................................................................................. 16
C. Defendants Properly Withheld Information Protected by the Deliberative
Process Privilege. ................................................................................................. 20
III. Defendants Properly Withheld Classified Information In the Legal Memorandum
Pursuant to FOIA Exemptions 1 and 3. ........................................................................... 26
A. Defendants Properly Withheld Classified Information Under Exemption 1. ...... 26
B. Defendants Properly Withheld Classified Information Under Exemption 3. ...... 30

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IV. Defendants Released All Reasonably Segregable Information. ...................................... 32


CONCLUSION ............................................................................................................................. 33

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TABLE OF AUTHORITIES

Cases Page(s)
ACLU v. CIA,
109 F. Supp. 3d 220 (D.D.C. 2015) ............................................................................ 15, 16, 18

Afshar v. Dep’t of State,


702 F.2d 1125 (D.C. Cir. 1983) ............................................................................................. 28

Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd.,


830 F.2d 331 (D.C. Cir. 1987) ............................................................................................... 30

Bayala v. U.S. Dep’t of Homeland Sec., Office of Gen. Counsel,


827 F.3d 31 (D.C. Cir. 2016) ................................................................................................. 30

Beltranena v. U.S. Dep’t of State,


821 F. Supp. 2d 167 (D.D.C. 2011) ....................................................................................... 33
Blazy v. Tenet,
979 F. Supp. 10 (D.D.C. 1997) ............................................................................................. 8, 9
Campbell v. Dep’t of Justice,
164 F.3d 20 (D.C. Cir. 1998) .................................................................................................... 7

CIA v. Sims,
471 U.S. 159 (1985) ......................................................................................................... 31, 32
Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice,
746 F.3d 1082 (D.C. Cir. 2014) ................................................................................................ 6
Citizens For Responsibility & Ethics in Wash. v. U.S. Dep’t of Labor,
478 F. Supp. 2d 77 (D.D.C. 2007) .......................................................................................... 25
Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854 (D.C. Cir. 1980)........................................................................................... 20. 21
Competitive Enter. Inst. v. EPA,
232 F. Supp. 3d 172 (D.D.C. 2017) ........................................................................................ 24
Competitive Enter. Inst. v. EPA,
12 F. Supp. 3d 100 (D.D.C. 2014) ........................................................................................... 25

Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice,


331 F.3d 918 (D.C. Cir. 2003) ............................................................................................... 27
Cuban v. SEC,
744 F. Supp. 2d 60 (D.D.C. 2010) .......................................................................................... 17

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Diamond v. Atwood,
43 F.3d 1538 (D.C. Cir. 1995) ................................................................................................. 5

DiBacco v. U.S. Army,


795 F.3d 178 (D.C. Cir. 2015) ............................................................................................... 31

Dillon v. Dep’t of Justice,


102 F. Supp. 3d 272 (D.D.C. 2015) ....................................................................................... 27
Elec. Privacy Info. Ctr. v. Dep’t of Justice,
584 F. Supp. 2d 65 (D.D.C. 2008) ........................................................................ 15, 16, 18, 22
Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec.,
384 F. Supp. 2d 100 (D.D.C. 2005) .................................................................................. 16-17

FBI v. Abramson,
456 U.S. 615 (1982) ................................................................................................................. 5

Fitzgibbon v. CIA,
911 F.2d 755 (D.C. Cir. 1990) ............................................................................................... 27
Formaldehyde Inst. v. HHS,
889 F.2d 1118 (D.C. Cir. 1989) .............................................................................................. 20
Freedom Watch, Inc. v. Nat’l Sec. Agency,
49 F. Supp. 3d 1 (D.D.C. 2014) .......................................................................................... 6, 24

Frugone v. CIA,
169 F.3d 772 (D.C. Cir. 1999) ............................................................................................... 27

Gardels v. CIA,
689 F.2d 1100 (D.C. Cir. 1982) ............................................................................................. 31

Ground Saucer Watch, Inc. v. CIA,


692 F.2d 770 (D.C. Cir. 1981) ............................................................................................. 6-7

Gula v. Meese,
699 F. Supp. 956 (D.D.C. 1988) ............................................................................................ 30

Halperin v. CIA,
629 F.2d 144 (D.C. Cir. 1980) ............................................................................................... 32

Hayden v. NSA/Cent. Sec. Serv.,


608 F.2d 1381 (D.C. Cir. 1979) ............................................................................................. 31
In re Apollo Grp., Inc. Securities Litig.,
251 F.R.D. 12 (D.D.C. 2008) ................................................................................................. 21

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In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) .......................................................................................... 14, 20
In re Sealed Case,
737 F.2d 94 (D.C. Cir. 1984) .................................................................................................. 16

Iturralde v. Comptroller of the Currency,


315 F.3d 311 (D.C. Cir. 2003) ................................................................................................. 7
Jean-Pierre v. Fed. Bureau of Prisons,
78 F. Supp. 3d 329 (D.D.C. 2015) ...................................................................................... 5, 12

Jefferson v. Fed. Bureau of Prisons,


578 F. Supp. 2d 55 (D.D.C. 2008) ........................................................................................... 8

John Doe Agency v. John Doe Corp.,


493 U.S. 146 (1989) ................................................................................................................. 5

Jordan v. U.S. Dep’t of Justice,


591 F.2d 753 (D.C. Cir. 1978) ............................................................................................... 30

Juarez v. U.S. Dep’t of Justice,


518 F.3d 54 (D.C. Cir. 2008) ........................................................................................... 32-33
Judicial Watch v. Clinton,
880 F. Supp. 1 (D.D.C. 1995) ........................................................................................... 22, 24
Judicial Watch v. Dep’t of Justice,
365 F.3d 1108 (D.C. Cir. 2004) .............................................................................................. 14
Judicial Watch v. Dep’t of Army,
466 F. Supp. 2d 112 (D.D.C. 2006) ........................................................................................ 16

Judicial Watch v. Export-Import Bank,


108 F. Supp. 2d 19 (D.D.C. 2000) ......................................................................................... 20
Judicial Watch, Inc. v. U.S. Dep’t of Def.,
245 F. Supp. 3d 19 (D.D.C. 2017) ................................................................................... passim

Judicial Watch, Inc. v. Dep’t of Def.,


715 F.3d 937 (D.C. Cir. 2013) ............................................................................................... 27
Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec.,
736 F. Supp. 2d 202 (D.D.C. 2010) ......................................................................................... 25
Judicial Watch, Inc. v. U.S. Dep’t of Commerce,
337 F. Supp. 2d 146 (D.D.C. 2004) ........................................................................................ 25

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Judicial Watch, Inc. v. U.S. Dep’t of Treasury,


796 F. Supp. 2d 13 (D.D.C. 2011) .................................................................................... 19, 25
Kelly v. CIA,
No. 00-cv-2498 (TFH), 2002 WL 34463900 (D.D.C. Aug. 8, 2002) .................................... 19

King v. U.S. Dep’t of Justice,


830 F.2d 210 (D.C. Cir. 1987) ............................................................................................... 27

Larson v. Dep’t of State,


565 F.3d 857 (D.C. Cir. 2009) ......................................................................................... 27, 31
Liberation Newspaper v. U.S. Dep’t of State,
80 F. Supp. 3d 137 (D.D.C. 2015) ............................................................................ 8, 9, 10, 11
Loving v. Dep’t of Def.,
550 F.3d 32 (D.C. Cir. 2008) .................................................................................................. 14

Mapother v. Dep’t of Justice,


3 F.3d 1533 (D.C. Cir. 1993) ................................................................................................. 20

Milner v. Dep’t of the Navy,


562 U.S. 562 (2011) ................................................................................................................. 5
Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force,
566 F.2d 242 (D.C. Cir. 1977) .......................................................................................... 17, 32

Montrose Chem. Corp. of California v. Train,


491 F.2d 63 (D.C. Cir. 1974) ................................................................................................. 21

Morley v. CIA,
508 F.3d 1108 (D.C. Cir. 2007) ............................................................................................. 31
Nixon v. Adm’r of Gen. Servs.,
433 U.S. 425 (1997) ............................................................................................................... 14

NLRB v. Robbins Tire & Rubber Co.,


437 U.S. 214 (1978) ................................................................................................................. 5
NLRB v. Sears, Roebuck & Co.,
421 U.S. 132 (1975) ................................................................................................... 13, 20, 22
Oglesby v. U.S. Dep’t of Army,
920 F.2d 57 (D.C. Cir. 1990) .......................................................................................... 6, 7, 12
People for the Am. Way Found. v. Nat’l Park Serv.,
503 F. Supp. 2d 284 (D.D.C. 2007) .................................................................................. 22, 24

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Performance Coal Co. v. U.S. Dep’t of Labor,


847 F. Supp. 2d 6 (D.D.C. 2012) .............................................................................. 7, 9, 10, 12
Ray v. Turner,
587 F.2d 1187 (D.C. Cir. 1978) ............................................................................................. 27
Russell v. Dep’t of the Air Force,
682 F.2d 1045 (D.C. Cir. 1982) ........................................................................................ 20, 21

SafeCard Servs., Inc. v. SEC,


926 F.2d 1197 (D.C. Cir. 1991) ............................................................................................... 6

Schrecker v. U.S. Dep’t of Justice,


349 F.3d 657 (D.C. Cir. 2003) ................................................................................................. 7
Shurtleff v. EPA,
No. 10-cv-2030, 2012 WL 4472157 (D.D.C. Sept. 25, 2012) ............................................... 25
Sussman v. U.S. Marshals Serv.,
494 F.3d 1106 (D.C. Cir. 2007) .............................................................................................. 33
Tax Analysts v. IRS,
117 F.3d 607 (D.C. Cir. 1997) .......................................................................................... 16, 17
Taxation With Representation Fund v. IRS,
646 F.2d 666 (D.C. Cir. 1981) ................................................................................................ 13
Touarsi v. U.S. Dep’t of Justice,
78 F. Supp. 3d 332 (D.D.C. 2015) .......................................................................................... 13
United States v. Nixon,
418 U.S. 683 (1974) ............................................................................................................... 14
United States v. Weber Aircraft Corp.,
465 U.S. 792 (1984) ............................................................................................................... 13
Weisberg v. Dep’t of Justice,
705 F.2d (D.C. Cir. 1983) ......................................................................................................... 6
Wolf v. CIA,
473 F.3d 370 (D.C. Cir. 2007) .................................................................................................. 6

Statute
5 U.S.C. § 552 ...................................................................................................................... passim
18 U.S.C. § 798 .................................................................................................................... passim
50 U.S.C. § 3024(i)(1) ................................................................................................................. 31
50 U.S.C. § 3605 .......................................................................................................................... 31

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Exec. Order 12333 § 1.7(c), 46 Fed. Reg. 59, 941 (Dec. 4, 1981) .............................................. 31
Exec. Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009) ........................................................ passim
Fed. R. Civ. P. 56(a) ...................................................................................................................... 5

Legislative Material
H.R. Rep. No. 89-1497, pt. 3, as reprinted in 1966 U.S.C.C.A.N. 2418 (1966) ............................ 5

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INTRODUCTION

Plaintiff in this Freedom of Information Act (“FOIA”) case, The Protect Democracy

Project (“Plaintiff”), seeks records from Defendants, the Department of Justice (“DOJ”),

Department of Defense (“DOD”), and Department of State (“State”) (collectively,

“Defendants”), relating to the President’s legal authority to launch the April 6, 2017 military

strike against a Syrian government airbase (Shayrat Airfield) in Syria. Defendants are entitled to

judgment as a matter of law because they have fully complied with their obligations under FOIA.

Defendants conducted searches reasonably calculated to uncover responsive records. Moreover,

Defendants properly withheld in full or in part information protected from disclosure pursuant to

the presidential communications, attorney-client, and deliberative process privileges; information

that is currently and properly classified; and information protected from disclosure by the

National Security Act of 1947, as amended, and 18 U.S.C. § 798. Because the supporting

declarations attached hereto establish that Defendants’ searches were adequate and that the

withheld information falls within FOIA Exemptions 1, 3, and 5, the Court should grant

Defendants summary judgment.

BACKGROUND

I. Plaintiff’s FOIA Requests and Defendants’ Responses

On April 7, 2017, Plaintiff submitted FOIA requests to DOJ’s Office of Information

Policy (“OIP”), Office of Legal Counsel (“OLC”), and National Security Division (“NSD”);

DOD’s Office of the Secretary of Defense and the Joint Staff; and State seeking “[a]ny 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.” See Pl.’s Compl. at Exs. A, C, E, G, I, ECF No. 1. Each of Plaintiff’s

FOIA requests also included a request for expedited processing of the records sought therein. Id.
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Plaintiff filed the instant lawsuit on May 8, 2017. See Pl.’s Compl. At that time,

Defendants had not provided Plaintiff with final determinations on its FOIA requests.1 See

Defs.’ Answer (June 23, 2017) ¶¶ 33, 39, 50, 57, 67, ECF No. 13. Following discussion between

counsel for the parties, Plaintiff agreed to narrow the scope of its FOIA requests to documents

analyzing or explaining the President’s legal authority to launch the April 6 strike. Defs.’ Status

Report (July 28, 2017) at 1 n.1, ECF No. 17. The parties further agreed that Defendants would

exclude from processing certain prior non-final versions of documents.2 Id.

A. OIP’s Response

OIP responded to Plaintiff in an April 13, 2017 letter acknowledging receipt of the

request and granting Plaintiff’s request for expedited processing. See Declaration of Daniel R.

Castellano, Senior Attorney in the Office of Information Policy, U.S. Department of Justice

(“Castellano Decl.”) ¶ 7 (attached hereto as Exhibit 1).

On August 18, 2017, OIP provided an interim response to Plaintiff’s request informing it

that OIP was withholding two pages of records in full pursuant to FOIA Exemption 5. Id. ¶ 26.

OIP provided a final response by later dated September 8, 2017, in which OIP released 53 pages

of records in full and seven pages with excisions, and determined that 10 pages must be withheld

1
Plaintiff subsequently moved for a preliminary injunction seeking an order compelling
Defendants to expedite the processing of Plaintiff’s FOIA requests and an order requiring
Defendants to release all responsive records within 20 days of the date of the Court’s order on its
motion. See Pl.’s Mot. for a Prelim. Inj. (May 22, 2017), ECF No. 3. The Court ultimately
granted in part and denied in part the motion for a preliminary injunction, ordering DOD and
State to process Plaintiff’s requests on an expedited basis, but declining to order production of
responsive documents by a date certain. See Mem. Op. (July 13, 2017) at 13, ECF No. 14.
2
Specifically, Plaintiff agreed to exclude from processing all prior non-final versions of
documents that Defendants were processing in response to Plaintiff’s FOIA requests or that have
been publicly released, including correspondence discussing or transmitting those prior
versions. Castellano Decl. ¶ 10; Herrington Decl. ¶ 5. Where a document was never finalized,
Defendants processed only the last edited version of such document. Id.

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in full. Id. ¶ 27. Redactions and withholdings were made pursuant to FOIA Exemptions 5, 6,

and 7(C). Id. ¶¶ 26-27.

B. OLC’s Response

On April 26, 2017, OLC acknowledged receipt of Plaintiff’s FOIA request and granted

expedited processing. See Declaration of Paul P. Colborn, Special Counsel in the Office of

Legal Counsel, U.S. Department of Justice (“Colborn Decl.”) ¶ 10 (attached hereto as Exhibit 2).

OLC provided an interim response on August 18, 2017, informing Plaintiff that OLC had

three records responsive to its narrowed request. Id. ¶ 11. One of those records was referred to

OIP for a direct response to Plaintiff. Id. OLC withheld the remaining two records in full, one

pursuant to FOIA Exemptions 1 and 5 and the other pursuant to Exemption 5. Id. On September

8, 2017, OLC sent Plaintiff a final response to its request. Id. ¶ 12. OLC notified Plaintiff that it

had not located “any additional non-duplicative records that were not already being processed by

another recipient of the request.” Id. (citation omitted).

C. NSD’s Response

In an email dated April 14, 2017, NSD acknowledged receipt of Plaintiff’s FOIA request.

See Declaration of Kevin G. Tiernan, Supervisory Records Manager in the Records and FOIA

Unit in the Office of Risk Management and Strategy of the National Security Division, U.S.

Department of Justice (“Tiernan Decl.”) ¶ 8 (attached hereto as Exhibit 3). On May 1, 2017, it

granted Plaintiff’s request for expedited processing. Id. ¶ 9.

NSD provided a final response to Plaintiff’s FOIA request by later dated September 8,

2017. Id. ¶ 17. NSD informed Plaintiff that it located 66 pages of responsive records, all of

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which originated with the Department of Justice’s Senior Management Offices and thus were

referred to OIP for a direct response to Plaintiff.3 Id. ¶¶ 15, 17.

D. DOD’s Response

DOD acknowledged receipt of Plaintiff’s FOIA request and denied expedited processing

by letter dated April 12, 2017. See Declaration of Mark H. Herrington, Associate Deputy

General Counsel in the Office of General Counsel, U.S. Department of Defense (“Herrington

Decl.”) ¶ 4 (attached hereto as Exhibit 4); see also Pl.’s Compl. at Ex. H.

On August 18, 2017, DOD provided an interim response, informing Plaintiff that DOD

located two documents responsive to its narrowed request. Id. ¶ 10. Both documents were

withheld in full, one under FOIA Exemption 5 and the other under Exemptions 1 and 5. Id. On

September 8, 2017, DOD issued a final response to Plaintiff’s request. Id. ¶ 10. DOD notified

Plaintiff that it had located two additional documents. Id. ¶ 11. One document was released in

part with portions of the document withheld pursuant to FOIA Exemption 5; the other document

was withheld in full pursuant to Exemptions 1 and 5. Id.

E. State’s Response

State responded in a letter dated April 12, 2017, acknowledging receipt of Plaintiff’s

FOIA request and denying Plaintiff’s request for expedited processing. See Declaration of Eric

F. Stein, Director of the Office of Information Programs and Services, U.S. Department of State

(“Stein Decl.”) ¶ 5 (attached hereto as Exhibit 5).

On August 18, 2017, State provided an interim response to Plaintiff’s request, informing

it that State was withholding one record in full pursuant to FOIA Exemption 5 and another

3
OIP subsequently determined, upon review of the records referred by NSD, that all sixty-
six pages were entirely duplicative of documents already located by OIP and notified Plaintiff of
this fact in its September 8, 2017 response. See Castellano Decl. ¶ 29.

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record in full under Exemptions 1 and 5. Id. ¶ 7. State provided a final response by later dated

September 8, 2017, in which it withheld in full two records pursuant to Exemption 5. Id. ¶ 8.

II. Statutory Background and Standard of Review

The Freedom of Information Act, 5 U.S.C. § 552, generally mandates disclosure, upon

request, of government records held by an agency of the Federal Government, except to the

extent such records are protected from disclosure by one of nine exemptions. Milner v. Dep’t of

the Navy, 562 U.S. 562, 563-566 (2011). “The basic purpose of FOIA is to ensure an informed

citizenry, vital to the functioning of a democratic society, needed to check against corruption and

to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437

U.S. 214, 242 (1978). At the same time, Congress recognized “that legitimate governmental and

private interests could be harmed by release of certain types of information and provided nine

specific exemptions under which disclosure could be refused.” FBI v. Abramson, 456 U.S. 615,

621 (1982); see also 5 U.S.C. § 552(b). While these exemptions are to be “narrowly construed,”

Abramson, 456 U.S. at 630, courts must not fail to give them “meaningful reach and

application,” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). The FOIA thus

represents “a workable balance between the right of the public to know and the need of the

Government to keep information in confidence to the extent necessary without permitting

indiscriminate secrecy.” Id. (quoting H.R. Rep. No. 89-1497, pt. 3 as reprinted in 1966

U.S.C.C.A.N. 2418, 2423 (1966)).

FOIA cases are typically and appropriately resolved on motions for summary judgment.

See, e.g., Jean-Pierre v. Fed. Bureau of Prisons, 78 F. Supp. 3d 329, 331 (D.D.C. 2015)

(Cooper, J.). As with non-FOIA cases, summary judgment is appropriate when there is no

genuine issue as to any material fact and the moving party is entitled to judgment as a matter of

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law. See Fed. R. Civ. P. 56(a); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995).

Defendants may demonstrate entitlement to summary judgment through affidavits that “‘describe

the justifications for nondisclosure with reasonably specific detail [and] demonstrate that the

information withheld logically falls within the claimed exemption, and [that] are not

controverted by either contrary evidence in the record nor by evidence of agency bad faith.”’

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082, 1088 (D.C.

Cir. 2014) (citations omitted). “Ultimately, an agency’s justification for invoking a FOIA

exemption is sufficient if it appears ‘logical’ or ‘plausible.”’ Wolf v. CIA, 473 F.3d 370, 374-75

(D.C. Cir. 2007) (citation omitted).

ARGUMENT

I. Defendants Fulfilled Their Obligation Under FOIA to Conduct Adequate


Searches for Responsive Records.

The Court may grant summary judgment concerning the adequacy of an agency’s search

for responsive records where the agency demonstrates that it conducted a search which was

“reasonably calculated to uncover all relevant documents.” Weisberg v. Dep’t of Justice, 705

F.2d 1344, 1351 (D.C. Cir. 1983). To carry this burden, agencies may submit relatively detailed

affidavits that “set forth the search terms and the type of search performed and aver that all files

likely to contain responsive materials were searched.” Freedom Watch, Inc. v. Nat’l Sec.

Agency, 49 F. Supp. 3d 1, 6 (D.D.C. 2014) (Cooper, J.) (quoting Oglesby v. U.S. Dep’t of Army,

920 F.2d 57, 68 (D.C. Cir. 1990)). Absent either contrary evidence in the record or evidence of

agency bad faith, such affidavits are sufficient to demonstrate an agency’s compliance with

FOIA. See id. The agency is entitled to “a presumption of good faith, which cannot be rebutted

by ‘purely speculative claims about the existence and discoverability of other documents.”’

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer

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Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). Because the process of conducting a

reasonable search requires “both systemic and case-specific exercises of discretion and

administrative judgment and expertise,” it “is hardly an area in which the courts should attempt

to micro manage the executive branch.” Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 662

(D.C. Cir. 2003) (citation omitted).

“[T]he adequacy of a FOIA search is generally determined not by the fruits of the search,

but by the appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller

of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Reasonableness, not perfection, is the

Court’s guiding principle in determining the adequacy of a FOIA search. Id.; Campbell v. Dep’t

of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). Defendants are entitled to summary judgment

because, as set forth more fully in the attached declarations, “all files likely to contain responsive

materials (if such records exist) were searched . . . .” Oglesby, 920 F.2d at 68.

A. OIP’s Searches of the Office of the Attorney General and Office of the
Deputy Attorney General Were Adequate.

As the Castellano Declaration explains, based on the nature of Plaintiff’s narrowed

request and the type of documents sought, OIP determined that the Office of the Attorney

General (“OAG”) and Office of the Deputy Attorney General (“ODAG”) were the offices most

likely to possess responsive records. See Castellano Decl. ¶ 18; see also Performance Coal Co.

v. U.S. Dep’t of Labor, 847 F. Supp. 2d 6, 13 (D.D.C. 2012) (“a reasonable search tailored to the

nature of a particular request” is adequate) (citing Campbell v. U.S. Dep’t of Justice, 164 F.3d

20, 28 (D.C. Cir. 1998)).

OIP conducted broad searches of OAG and ODAG records in order to capture all

potentially responsive documents, including (1) conducting remote electronic searches of the

email and electronic files of all OAG and ODAG officials on staff from April 4, 2017 to April

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13, 2017 (twenty-eight custodians in total), and (2) providing instructions for those same

officials to identify any additional records, such as hard copy paper records, that could not be

searched electronically. See Castellano Decl. ¶ 20. Additionally, OIP’s search for responsive

OAG and ODAG records included electronic searches of records within the Departmental

Executive Secretariat (“DES”), which is the “official records repository of all formal

correspondence of OAG and ODAG.” Id. ¶ 22.

All of OIP’s electronic searches were designed to capture a comprehensive set of search

results by using broad search terms, i.e., “Syria” and “Shayrat,” id. ¶¶ 20, 22, which were

“reasonably tailored to uncover documents responsive to [Plaintiff’s] FOIA request,” Liberation

Newspaper v. U.S. Dep’t of State, 80 F. Supp. 3d 137, 146 (D.D.C. 2015) (rejecting requester’s

argument that the agency should have used alternative search terms to yield more responsive

documents) (citation omitted)). And OIP’s searches employed a date range—April 4, 2017 (the

timeframe expressly provided in the request) to April 13, 2017 (the date the search was

initiated)—that was sufficient to capture all responsive records. See Castellano Decl. ¶¶ 20, 22;

see also Jefferson v. BOP, 578 F. Supp. 2d 55, 60 (D.D.C. 2008) (noting that the proper inquiry

is “whether the cut-off date used was reasonable in light of the specific request”; finding date-of-

request cut-off was reasonable); see also Blazy v. Tenet, 979 F. Supp. 10, 17 (D.D.C. 1997)

(finding date-of-acknowledgement cut-off was reasonable).

B. OLC’s Search Was Adequate.

The declaration submitted on behalf of OLC likewise establishes that OLC’s searches

satisfy FOIA. In response to Plaintiff’s request, OLC consulted with knowledgeable staff in its

relatively small office who were likely to be familiar with the assignment of OLC attorneys on

national security matters. Colborn Decl. ¶ 13. Through that process, OLC appropriately

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identified attorneys—two senior attorneys and two line attorneys—who might potentially have

records in classified or unclassified email accounts or electronic file storage responsive to

Plaintiff’s narrowed FOIA Request. Id. ¶¶ 13-14; see Performance Coal Co., 847 F. Supp. 2d at

13.

OLC then conducted electronic searches of the four custodians’ classified email and

electronic files over the relevant time period, using broad keywords that would reasonably locate

responsive documents —i.e., “Syria,” “Shayrat,” “Shaykuhn,” and “Sheikhoun.” Colborn Decl.

¶ 15; see also Liberation Newspaper, 80 F. Supp. 3d at 146. One custodian was also asked to

search an unclassified email account for the same information. Colborn Decl. ¶ 15. And,

separately, the custodians were asked to provide any responsive records that would not be

captured by the electronic searches of classified and unclassified information. Id. Finally, “[a]s

a check against the quality of the search, OLC’s FOIA Attorney also consulted with the other

agency defendants in this action to determine whether they were aware of OLC equities in any

other documents not located in OLC’s search.” Id.

C. NSD’s Search Was Adequate.

The Tiernan Declaration also establishes that NSD is entitled to summary judgment

concerning the adequacy of its search. In response to Plaintiff’s FOIA request, NSD identified

two components that were most likely to have potentially responsive records: the Office of Law

and Policy (“OLP”) and the Office of the Assistant Attorney General (“OAAG”) for NSD. See

Tiernan Decl. ¶ 11. OLP “develops and implements Department of Justice policies with regard

to intelligence, counterterrorism, and other national security matters; assists the Assistant

Attorney General in liaising with the Director of National Intelligence; and provides legal

assistance and advice on matters of national security law. Id. The OAAG consists, among

9
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others, of the Assistant Attorney General for National Security (“AAG”) and Deputy Assistant

Attorneys General (“DAAGs”) responsible for supervising NSD’s components, such as OLP. Id.

In consultation with these offices, NSD identified four attorneys total who, based on the subject

matter of plaintiff’s FOIA request, “would be the most likely records custodians because of their

expertise and responsibilities within their NSD components.” Id. ¶ 12; see Performance Coal

Co., 847 F. Supp. 2d at 13.

NSD conducted comprehensive searches designed to identify all potentially responsive

records maintained by the OAAG and OLP custodians on both classified and unclassified

systems. In particular, at the direction of the NSD FOIA staff, the OLP custodians conducted

electronic searches of their email accounts and other electronic files, as well as searches of their

paper files. See Tiernan Decl. ¶ 13. Moreover, NSD FOIA staff conducted electronic searches

of email accounts and other electronic records of NSD leadership (AAG and DAAGs). Id. ¶ 14.

In each case, records were searched using the term—“Syria”—within the date range of the

request. Id. ¶¶ 13-14; see Liberation Newspaper, 80 F. Supp. 3d at 146.

D. DOD’s Search of the Office of General Counsel and the Joint Staff Were
Adequate.

The declaration submitted by DOD likewise demonstrates that it met its obligation under

FOIA to conduct an adequate search. In response to Plaintiff’s FOIA request, DOD tasked

relevant custodians in DOD’s Office of General Counsel (International Affairs) (“DOD OGC

(IA)”) and the Office of the Legal Advisor to the Chairman of the Joint Chiefs of Staff (“CJCS

LA”), the offices which provide legal advice to the most senior officials of DOD, to search for

potentially responsive records. Herrington Decl. ¶ 6. These two offices are the only offices in

the Office of the Secretary of Defense and the Joint Staff that would likely possess responsive

records. Id.; see Performance Coal Co., 847 F. Supp. 2d at 13. Within DOD OGC (IA), DOD

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identified three attorneys who were involved in predecisional deliberations concerning the

President’s legal authority to conduct the strike. See Herrington Decl. ¶ 7. Custodians in the

Joint Staff included the Legal Advisor to the Chairman of the Joint Staff and another attorney in

his office who was involved in the predecisional deliberations. Id. ¶ 6. Searches of the Joint

Staff also included the files of the J3 – the division in charge of operations. Id.

Broad searches were performed by the relevant custodians in order to gather up all

potentially responsive documents. Specifically, attorneys in DOD OGC (IA) searched for

records at all levels of clearance in both personal and shared electronic folders and emails. Id.

For those electronic searches, search terms included “Syria,” “CW,” “chemical,” “April 7,”

“April 6,” “Shayrat,” and the names of three attorneys involved in the deliberations. Id. ¶ 8; see

Liberation Newspaper, 80 F. Supp. 3d at 146. Like the searches of DOD OGC (IA), searches of

the relevant custodians in CJCS LA, as well as the files of the J3, were also performed at all

classification levels and included electronic searches of emails and the drives of individuals

involved in the predecisional deliberations. Herrington Decl. ¶ 6. Search terms included

“Syria,” “Syrian,” “Chemical Weapons,” “targets,” “targeting,” “strike options,” “strike,”

“POTUS,” “SecDef,” and “Shayrat.” Id. ¶ 7; see Liberation Newspaper, 80 F. Supp. 3d at 146.

The timeframe for the searches encompassed April 4, 2017, to the date of the search, as stated in

Plaintiff’s request. Herrington Decl. ¶¶ 6, 7.

E. State’s Search of the Office of Legal Adviser Was Adequate.

Finally, as explained in the Stein Declaration, based upon Plaintiff’s narrowed request,

State determined that the only office reasonably likely to have responsive documents was the

Office of the Legal Adviser (“L”). Stein Decl. ¶ 10. This office “furnishes advice on all legal

issues, domestic and international, arising in the course of the Department’s work.” Id. ¶ 13.

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“[A]n attorney in L, who was knowledgeable of both the FOIA request at issue and L’s records

systems, determined that the only L component reasonably likely to maintain responsive records

was the Office of Political-Military Affairs (“L/PM”),” which provides legal assistance in

matters relating to, among other things, “use of force and war powers[,] and laws of war.” Id. ¶

14; see Performance Coal Co., 847 F. Supp. 2d at 13.

Thereafter, an Attorney-Adviser in L/PM, who is a subject matter expert and was directly

involved in drafting documents relevant to Plaintiff’s FOIA request, and who is knowledgeable

about the files and locations reasonably likely to contain responsive records and the best means

of locating such records, searched L/PM’s electronic files for any documents responsive to

Plaintiff’s narrowed FOIA request. Stein Decl. ¶ 15. The L/PM files searched consisted of the

unclassified and classified email records of the Attorney-Adviser, unclassified and classified

document files of the Attorney-Adviser, an electronic shared drive (a collection of folders stored

on a local network), and the office’s electronic records management system Content Server. Id.

The Attorney-Adviser searched electronic files using the search terms “Syria,” “chemical

weapons,” and “Shayrat,” and a date range of April 4, 2017 through the date of the search. Id.;

Liberation Newspaper, 80 F. Supp. at 146.

* * *

The attached declarations demonstrate that each of the Defendants searched those offices

and custodians most likely to possess documents responsive to Plaintiff’s FOIA requests, and

that Defendants used methods which can be “reasonably expected to produce the information

requested.” Oglesby, 920 F.2d at 68. Accordingly, Defendants have satisfied their burden to

demonstrate the adequacy of their searches as a matter of law. See Jean-Pierre, 78 F. Supp. 3d

at 331.

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II. Defendants Properly Asserted FOIA Exemption 5 to Withhold In Part or In Full


Information Protected from Disclosure.

Defendants have withheld each responsive document in full or in part pursuant to FOIA

Exemption 5, which shields from mandatory disclosure “inter-agency or intra-agency

memorandums or letters that would not be available by law to a party . . . in litigation with the

agency.” 5 U.S.C. § 552(b)(5); see Touarsi v. U.S. Dep’t of Justice, 78 F. Supp. 3d 332, 344

(D.D.C. 2015) (Cooper, J.). Exemption 5 ensures that members of the public cannot obtain

through FOIA what they could not ordinarily obtain through discovery in a lawsuit against the

agency. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). It thus protects from

disclosure those documents that, as here, are shielded by the presidential communications

privilege, the attorney-client privilege, and the deliberative process privilege. See, e.g., United

States v. Weber Aircraft Corp., 465 U.S. 792, 800 (1984); Taxation With Representation Fund v.

IRS, 646 F.2d 666, 676 (D.C. Cir. 1981). Because the withheld information fits squarely within

these privileges, the Court should grant Defendants summary judgment.4

A. Defendants Properly Withheld Information Protected by the Presidential


Communications Privilege.

Defendants properly asserted FOIA Exemption 5 to withhold information in three records

protected from disclosure by the presidential communications privilege. Vaughn Index, Docs. 1-

3 (legal memorandum) (attached hereto as Exhibit 6). The presidential communications

privilege applies to “communications that directly involve the President,” as well as

“communications authored or solicited and received by [] members of an immediate White

4
Defendants also asserted FOIA Exemptions 6 and 7(C) to protect the name of a federal
government employee in three responsive emails. Vaughn Index, Docs. 11-13. Plaintiff
informed counsel for Defendants that it is not challenging withholdings pursuant to Exemptions
6 and 7(C). Accordingly, these exemptions are not discussed further herein.

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House adviser’s 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.” In re Sealed Case, 121 F.3d 729, 751-52 (D.C. Cir. 1997). In

particular, the privilege applies “to communications in performance of (a President’s)

responsibilities, . . . and made in the process of shaping policies and making decisions.” Nixon v.

Adm’r of Gen. Servs., 433 U.S. 425, 449 (1977) (citations omitted). The privilege “preserves the

President’s ability to obtain candid and informed opinions from his advisors and to make

decisions confidentially.” Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008); see United

States v. Nixon, 418 U.S. 683, 708 (1974) (describing the privilege as a “presumptive privilege

for [p]residential communications”). Unlike the deliberative process privilege, the presidential

communications privilege “applies to documents in their entirety, and covers final and post-

decisional materials as well as pre-deliberative ones.” In re Sealed Case, 121 F.3d at 745. The

presidential communications privilege thus is a broader privilege that provides greater protection

against disclosure. Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1114 (D.C. Cir.

2004).

Defendants properly withheld in its entirety a classified legal memorandum that is

protected by the presidential communications privilege.5 Vaughn Index, Docs. 1-3. The legal

memorandum, which was drafted by an inter-agency group of attorneys, was solicited and

received by the staff of the most senior legal counsel of the National Security Council (“NSC”),

the NSC Legal Adviser, who has broad and significant responsibility for investigating and

formulating advice to the President on matters of national security and foreign policies. See

5
OLC and State located identical copies of the legal memorandum, while DOD located a
prior draft version. Vaughn Index, Docs. 1-3. Defendants will refer to the documents
collectively as “the legal memorandum” or “memorandum.”

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Colborn Decl. ¶ 23; Herrington Decl. ¶¶ 15, 16; Stein Decl. ¶ 26. The memorandum was related

to Presidential decision-making, as its purpose was to communicate pre-decisional advice and

recommendations to the President and NSC regarding the President’s legal authority to launch a

particular military action. See Colborn Decl. ¶ 25. Disclosure of the legal memorandum “would

reveal the process by which the President receives national security advice from close advisors,

and would reveal information about the advice itself.” Stein Decl. ¶ 26. Such compelled

disclosure “could threaten the quality of presidential decisionmaking by impairing the

deliberative process in which those decisions are made.” Colborn Decl. ¶ 23.

Several judges in this district have found that the presidential communications privilege

protects from disclosure similar types of legal memoranda. See, e.g., ACLU v. CIA, 109 F. Supp.

3d 220, 239-40 (D.D.C. 2015) (Collyer, J.) (holding that the presidential communications

privilege applied to eleven legal memoranda concerning the government’s use of targeted lethal

force); Elec. Privacy Info. Ctr. (“EPIC”) v. Dep’t of Justice, 584 F. Supp. 2d 65, 81 (D.D.C.

2008) (Kennedy, J.) (finding the same with respect to OLC memorandum containing legal

recommendations concerning the President’s authorization of the Terrorist Surveillance

Program). Recently, moreover, Judge Walton held that the presidential communications

privilege applied to five legal memoranda memorializing legal advice provided to President

Obama regarding the then-contemplated raid on Usama Bin Laden’s compound in Pakistan. See

Judicial Watch, Inc. v. U.S. Dep’t of Def., 245 F. Supp. 3d 19, 31 (D.D.C. 2017). Similar to the

legal memorandum withheld in this matter, the communications reflected in the memoranda at

issue in Judicial Watch were made by the President’s senior advisors, including the then-NSC

Legal Adviser, to assist the President and his national security team in determining whether to

launch the raid on Bin Laden’s compound. Id. at 25. And they likewise memorialized the

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confidential legal advice of top national security attorneys on “certain significant legal aspects of

the bin Laden raid,” including “legally available options associated with the then-proposed raid.”

Id. at 29 (citation omitted). Because the communications were made for the purpose of advising

the President and his closest national security advisors on the legality of the specific military

operation, as part of the President’s decision-making process to launch the raid, the court found

that the defendant-agencies had properly withheld the memoranda in their entirety under the

presidential communication privilege. Id. at 31.

As in Judicial Watch, Defendants have met their burden of showing that the legal

memorandum is protected by the presidential communications privilege. See Judicial Watch,

Inc., 245 F. Supp. 3d at 31; see also ACLU, 109 F. Supp. 3d at 239; EPIC, 584 F. Supp. 2d at 81.

Thus, Defendants properly withheld the memorandum in full under Exemption 5.

B. Defendants Properly Withheld Information Protected by the Attorney-Client


Privilege.

Defendants also properly asserted FOIA Exemption 5 to withhold information in six

records protected from disclosure by the attorney-client privilege. Vaughn Index, Docs. 1-3

(legal memorandum); 4 (OLC outline); 14-15 (recommended responses to congressional

inquiries). The attorney-client privilege “protects confidential communications from clients to

their attorneys made for the purpose of securing legal advice or services.” Tax Analysts v. IRS,

117 F.3d 607, 618 (D.C. Cir. 1997) (citing In re Sealed Case, 737 F.2d 94, 98–99 (D.C. Cir.

1984)). “Although it principally applies to facts divulged by a client to his attorney, this privilege

also encompasses any opinions given by an attorney to his client based on, and thus reflecting,

those facts as well as communications between attorneys that reflect client-supplied

information.” Judicial Watch v. Dep’t of Army, 466 F. Supp. 2d 112, 121 (D.D.C. 2006); Elec.

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Privacy Info. Ctr. v. Dep’t of Homeland Security, 384 F. Supp. 2d 100, 114 (D.D.C. 2005)

(same).

“In the governmental context, the ‘client’ may be the agency and the attorney may be an

agency lawyer.” Tax Analysts, 117 F.3d at 618; see Cuban v. SEC, 744 F. Supp. 2d 60, 78

(D.D.C. 2010) (“In the context of Exemption 5, the attorney-client privilege functions to protect

communications between government attorneys and client agencies or departments, as evidenced

by its inclusion in the FOIA, much as it operates to protect attorney-client communications in the

private sector.” (citation omitted)). “[W]hen the Government is dealing with its attorneys as

would any private party seeking advice to protect personal interests, and needs the same

assurance of confidentiality so it will not be deterred from full and frank communications with

its counselors, Exemption 5 applies.” Judicial Watch, Inc., 245 F. Supp. 3d at 32 (citations

omitted). To invoke the attorney-client privilege, a party must demonstrate that the document it

seeks to withhold: (1) involves “confidential communications between an attorney and his

client”; and (2) relates to “a legal matter for which the client has sought professional advice.”

Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977); accord

Cuban, 744 F. Supp. 2d at 78.

1. Defendants have properly invoked Exemption 5 because the attorney-client privilege

applies to the legal memorandum. Vaughn Index, Docs. 1-3. As explained above, an inter-

agency group of attorneys, coordinated by lawyers on the staff of the NSC Legal Adviser,

drafted the legal memorandum for the purpose of advising and providing recommendations to

the President and/or other senior Executive Branch officials regarding the legal basis for

potential military action. See Colborn ¶ 24; Herrington Decl. ¶ 15; Stein Decl. ¶ 24. The

document contains advice based on confidential communications from NSC attorneys to the

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inter-agency attorneys for the purpose of obtaining a legal opinion in connection with the

President’s decision to order the April 6 strikes. See Stein Decl. ¶ 24; see Colborn Decl. ¶ 18.

The legal memorandum was intended to be confidential and there is no indication that that

confidentiality has not been maintained. See Herrington Decl. ¶ 15-16; Stein Decl. ¶ 24. Having

been asked to provide legal advice, the inter-agency attorneys stood in a special relationship of

trust with the President and his advisers. See Colborn Decl. ¶ 22. “Just as disclosure of client

confidences in the course of seeking legal advice would seriously disrupt the relationship of trust

so critical when attorneys formulate legal advice to their clients, so too would disclosure of the

legal advice itself undermine that trust.” Id.

Therefore, the legal memorandum is properly withheld in full under Exemption 5 and the

attorney-client privilege. See Judicial Watch, Inc., 245 F. Supp. 3d at 32-33 (attorney-client

privilege applied to memoranda relating to the legality of raid in which Usama bin Laden was

killed); ACLU, 109 F. Supp. 3d at 239-40 (finding the same with respect to eleven legal

memoranda concerning the government’s use of targeted lethal force); EPIC, 584 F. Supp. 2d at

81 (finding the same with respect to OLC memorandum containing legal recommendations

concerning the President’s authorization of the Terrorist Surveillance Program).

2. OLC likewise properly relied on the attorney-client privilege with respect to an

outline prepared by OLC attorneys for the purpose of advising the Attorney General regarding

the legal bases for the April 6 strikes. Vaughn index, Doc. 4. “The outline was used by the

Acting Assistant Attorney General (“AAG”) in charge of OLC to assist him in providing oral

legal advice to the Attorney General” in connection with the Attorney General’s role as chief

legal adviser to the President. Colborn Decl. ¶ 19. The outline contains limited factual materials

provided to OLC attorneys by other Executive Branch officials for the purpose of developing

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confidential legal advice, as well as the legal advice of OLC attorneys. Id. ¶ 25. The outline was

intended to be confidential and that confidentiality has been maintained. Id. Disclosure of the

document would “seriously disrupt” the critical relationship of trust when attorneys formulate

legal advice for their client, in this case the Attorney General himself. Id. Therefore, the outline

is properly withheld in full under Exemption 5 and the attorney-client privilege.

3. Finally, the attorney-client privilege appropriately protects from disclosure records

located by State concerning recommended responses to congressional inquiries. Vaughn Index,

Docs. 14-15. These documents consist of proposed guidance for responding to questions from

Congress regarding the legal basis for the April 6 strikes, including hypothetical questions and

proposed responses in bullet-point form. Stein Decl. ¶¶ 22, 24. The materials were prepared by

Department attorneys for the purpose of providing legal advice to State Department officials and

reflect confidential communications undertaken between State Department attorneys and their

clients within the Department for the purpose of providing legal advice. Id. ¶ 24. The

communication was intended to be kept confidential and that confidentiality has been

maintained. Id. Accordingly, the proposed guidance for responding to congressional inquiries is

properly withheld in full under Exemption 5 and the attorney-client privilege. See Kelly v. CIA,

No. 00-cv-2498 (TFH), 2002 WL 34463900, at *17 (D.D.C. Aug. 8, 2002) (finding attorney-

client privilege applied to a memorandum containing legal advice about a response to a

congressional inquiry); cf. Judicial Watch, Inc. v. U.S. Dep’t of Treasury, 796 F. Supp. 2d 13, 34

(D.D.C. 2011) (approving the withholding of information from email string regarding press

inquiries pursuant to attorney-client privilege).

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C. Defendants Properly Withheld Information Protected by the Deliberative


Process Privilege.

Finally, Defendants properly asserted FOIA Exemption 5 to withhold information in each

responsive record protected from disclosure by the deliberative process privilege. Vaughn Index,

Docs. 1-15. The deliberative process privilege applies to “decisionmaking of executive officials

generally,” and protects documents containing deliberations that are part of the process by which

government decisions are formulated. In re Sealed Case, 121 F.3d at 737, 745. The purpose of

the deliberative process privilege is to encourage full and frank discussion of legal and policy

issues within the government, and to protect against public confusion resulting from disclosure

of reasons and rationales that were not ultimately the bases for the agency’s action. See, e.g.,

Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993); Russell v. Dep’t of the Air

Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982). The privilege is animated by the common-sense

proposition that “those who expect public dissemination of their remarks may well temper

candor with a concern for appearances to the detriment of the decisionmaking process.” Sears,

Roebuck & Co., 421 U.S. at 150-51 (citation omitted).

To come within the scope of the deliberative process privilege, a document must be both

predecisional and deliberative. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866

(D.C. Cir. 1980). A document is predecisional if “it was generated before the adoption of an

agency policy” and it is deliberative if “it reflects the give-and-take of the consultative process.”

Id. “To establish that a document is predecisional, the agency need not point to an agency final

decision, but merely establish what deliberative process is involved, and the role [sic] that the

documents at issue played in that process.” Judicial Watch v. Export-Import Bank, 108 F. Supp.

2d 19, 35 (D.D.C. 2000) (citing Formaldehyde Inst. v. HHS, 889 F.2d 1118, 1223 (D.C. Cir.

1989)). The privilege therefore applies broadly to “recommendations, draft documents,

20
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proposals, suggestions, and other subjective documents which reflect the personal opinions of the

writer rather than the policy of the agency.” Coastal States, 617 F.2d at 866.

Exemption 5 covers “not only communications which are themselves deliberative in

nature, but all communications which, if revealed, would expose to public view the deliberative

process of an agency,” and, therefore, applies if, “disclosure of even purely factual material

would reveal an agency’s decision-making process . . . .” Russell v. Dep’t of the Air Force, 682

F.2d 1045, 1048 (D.C. Cir. 1982). It has been held to protect “material reflecting deliberative or

policy-making processes . . . .” Montrose Chem. Corp. of California v. Train, 491 F.2d 63, 67

(D.C. Cir. 1974).

1. Defendants properly withheld the legal memorandum pursuant to the deliberative

process privilege and FOIA Exemption 5. Vaughn Index, Docs. 1-3. The legal memorandum

memorializes pre-decisional legal advice prepared by inter-agency attorneys for the

consideration of the President’s national security advisers in advising the President whether to

authorize a contemplated military action. See Colborn Decl. ¶ 21; Herrington Decl. ¶ 16; Stein

Decl. ¶ 20. More specifically, the memorandum addresses the legal authority for such military

action and makes recommendations for policy action based upon the analysis. See Herrington

Decl. ¶ 15. The document is pre-decisional and deliberative because it was used in the larger

Presidential and Executive Branch deliberations regarding the April 6 strike, and because it

reflects the give-and-take and candor of the consultative process. See Colborn Decl. ¶ 21. As a

consequence, the legal memorandum falls squarely within the deliberative process privilege.6

6
Moreover, the version of the legal memorandum identified by DOD is a prior draft
(Vaughn Index, Doc. 3), which by its very nature is pre-decisional and deliberative. Herrington
Decl. ¶ 12. Drafts, like the one identified by DOD, “reflect only the tentative view of their
authors; views that might be altered or rejected upon further deliberation either by their authors
or by superiors.” In re Apollo Grp., Inc. Securities Litig., 251 F.R.D. 12, 31 (D.D.C. 2008) (non-
FOIA case) (citation omitted). Accordingly, “drafts are commonly found exempt under the

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EPIC, 584 F. Supp. 2d at 75 (“legal advice is an integral part of the decision-making process and

is protected by the deliberative process privilege”).

Disclosure of this type of deliberative information would inhibit the frank

communications and the free exchange of ideas that the privilege is designed to protect. See

Colborn Decl. ¶ 21; Herrington Decl. ¶ 16; Stein Decl. ¶ 20; see Sears, Roebuck & Co., 421 U.S.

at 150–51 (“T]hose who expect public dissemination of their remarks may well temper candor

with a concern for appearances to the detriment of the decisionmaking process.”) (citation

omitted). It is essential to the President in carrying out his duties, especially with respect to

ordering military operations and foreign relations actions, and to the proper functioning of the

Executive Branch overall that “legal advice not be inhibited by concerns about the risk of public

disclosure,” “both to ensure that creative and sometimes controversial legal arguments and

theories may be examined candidly, effectively, and in writing, and to ensure that the President,

his advisers, and other Executive Branch officials continue to request and rely on frank legal

advice from. . . government attorneys on sensitive matters.” Colborn Decl. ¶ 21. Defendants,

therefore, have properly withheld the legal memorandum under FOIA Exemption 5.

2. For many of the same reasons, OLC likewise properly asserted the deliberative

process privilege with respect to the OLC outline. Vaughn Index, Doc. 4. Because the outline

was drafted in preparation for the Acting AAG of OLC’s oral briefing of the Attorney General

regarding the legal bases for the April 6 strikes, it is pre-decisional to the advice that the Acting

AAG ultimately provided. Colborn Decl. ¶ 24. To the extent that information from the outline

was conveyed orally to the Attorney General, “that communication was [also] predecisional to

deliberative process exemption.” People for the Am. Way Found. v. Nat’l Park Serv., 503 F.
Supp. 2d 284, 303 (D.D.C. 2007); see also Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 12-13
(D.D.C. 1995) (upholding nondisclosure of draft responses to a congressional inquiry).

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the Attorney General’s decision as to how to advise the President.” Id. The OLC outline is also

deliberative because it contained OLC’s legal advice to the Attorney General for use in his

determination of how to advise the President on future military actions. Id. OLC attorneys are

often asked to provide advice and analysis regarding “very difficult and unsettled questions of

law, and on matters that can be quite controversial.” Id. It is therefore essential that OLC’s

internal notes regarding its legal advice not be inhibited by concerns about the risk of public

disclosure. Id. Accordingly, Defendants have properly withheld the outline under FOIA

Exemption 5.

3. Finally, Defendants properly withheld under the deliberative process privilege inter-

and intra-agency records including advice on how to respond to congressional and press inquiries

about the legal basis for the April 6 strike. Vaughn Index, Docs. 5-13 (documents and emails

containing proposed press guidance and talking points); 14-15 (recommended responses to

congressional inquiries). These documents include proposed press guidance and talking points

(including internal email communications disseminating such materials) consisting of

recommendations by Executive Branch officials regarding both broad issues to emphasize when

discussing the Syrian strike and the specific points that should be illuminated in any discussion,

as well as proposed answers to hypothetical questions. See Castellano Decl. ¶¶ 38, 40, 41;

Herrington Decl. ¶ 14; Stein Decl. ¶¶ 21-22. The documents are pre-decisional, as they pre-date

a final decision on Defendants’ strategy and communications to the press and to Congress about

the April 6 strike, and concern possible statements that had yet been made. See Castellano Decl.

¶¶ 35, 37, 41, 42; Herrington Decl. ¶ 14; Stein Decl. ¶¶ 21-22. They are deliberative because

they reflect advice and recommendations for responding to external inquiries about the April 6

strike, specifically the legal basis for the use of force, which Defendants were free to adopt or not

23
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in formulating their statements. See Castellano Decl. ¶¶ 35, 38-39, 41, 42; Herrington Decl. ¶

13; Stein Decl. ¶¶ 21-22. Moreover, the press guidance and talking point documents reflect the

exchange of ideas and suggestions inherent in the consultative process, as evidenced by the

development of such guidance in the days following the April 6 strike, beginning with

provisional guidance disseminated early in the morning of April 7 (Vaughn Index, Doc. 13).7

See Castellano Decl. ¶ 35.

Disclosure of these documents “would seriously inhibit the candor and effectiveness of

the advisers engaged in this deliberative process,” Herrington Decl. ¶ 14, and “could reasonably

be expected to chill the open and frank expression of ideas, recommendations, and opinions that

occur,” Stein Decl. ¶ 22, when agency officials craft responses to Congress or the press. See

Castellano Decl. ¶¶ 36, 39, 41. Additionally, because the press guidance and talking points

“represent only the views of the authors, their release could confuse or mislead the public

regarding the Government’s position if a senior official stated something contradictory to such

advice.” Herrington Decl. ¶ 14.

Numerous courts, including this Court, have specifically found that records related to an

agency’s proposed response to congressional and press inquiries are protected by the deliberative

process privilege. See Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 187-88 (D.D.C.

2017) (finding that “[e]mails generated as part of a continuous process of agency decision-

making regarding how to respond to a press inquiry are protected by the deliberative process

privilege,” and concluding that documents generated as part of agency media strategy were

protected) (citation omitted); Freedom Watch, Inc. v. Nat’l Sec. Agency, 49 F. Supp. 3d 1, 8

7
Furthermore, the version of the press guidance document identified by OIP is a prior draft
(Vaughn Index, Doc. 7), Castellano Decl. ¶ 37, which by its very nature is pre-decisional and
deliberative and thus properly withheld. See People for the Am. Way Found., 503 F. Supp. 2d at
303; see also, Judicial Watch, 880 F. Supp. at 13.

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(D.D.C. 2014) (Cooper, J.) (upholding application of Exemption 5 to cover briefing materials

containing “preliminary thoughts and ideas determined to be important for preparing the senior

officials for an interview with a journalist from a major news media organization,” and

explaining that “[b]ecause these documents reflect intra-agency deliberations on communications

with the media, they fall within the deliberative process privilege”); Competitive Enter. Inst. v.

EPA, 12 F. Supp. 3d 100, 118-19 (D.D.C. 2014) (explaining that the deliberative process

privilege protects “media-related withholdings . . . reflect[ing] ongoing decisionmaking about

‘how the agency’s activities should be described to the general public’”) (citation omitted);

Judicial Watch, Inc., 796 F. Supp. 2d at 30-31 (holding that privilege applied to email string

reflecting discussions among Treasury Department Staff regarding how to respond to a press

inquiry regarding an anticipated news report); Judicial Watch, Inc. v. U.S. Dep’t of Homeland

Sec., 736 F. Supp. 2d 202, 208 (D.D.C. 2010) (finding that privilege covers “email messages

involving recommendations and evaluations for how to respond to Congressional and media

requests for information on [agency witness’s] legal entry into the United States and the grant of

immunity to him”); Citizens For Responsibility & Ethics in Wash. v. U.S. Dep’t of Labor, 478 F.

Supp. 2d 77, 82-83 (D.D.C. 2007) (finding that privilege protects online conversation between

agency’s office of public affairs and agency official regarding agency’s possible response to

newspaper article that commented on agency policies).

Even final versions of briefing materials are pre-decisional and subject to the deliberative

process privilege to the extent that they consist of recommendations for agency actions or

propose talking points for agency officials to incorporate into their presentations or question-and-

answer sessions. See, e.g., Shurtleff v. U.S. EPA, No. 10-cv-2030, 2012 WL 4472157, at *17-18

(D.D.C. Sept. 25, 2012) (briefing materials and talking points created in response to questions

25
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about disputed emails were protected by deliberative process privilege); Judicial Watch, Inc. v.

U.S. Dep’t of Commerce, 337 F. Supp. 2d 146, 174 (D.D.C. 2004) (talking points and

recommendations for how to answer questions about duties of Department of Commerce

officials were properly withheld under deliberative process privilege).

Because information related to proposed responses to congressional and press inquiries

falls within the protections of the deliberative process privilege, Defendants appropriately

withheld such information under Exemption 5.

III. Defendants Properly Withheld Classified Information In the Legal


Memorandum Pursuant to FOIA Exemptions 1 and 3.

Defendants properly asserted FOIA Exemptions 1 and 3 to withhold limited, discrete

information in the legal memorandum (Vaughn Index, Docs. 1-3) that continues to be classified

and protected from release by the National Security Act, as amended, and 18 U.S.C. § 798, as

explained in the Declaration of Patricia Gaviria, Director, Information Management Division,

Office of the Director of National Intelligence (“Gaviria Decl.”) (attached hereto as Exhibit 7).

A. Defendants Properly Withheld Classified Information Under Exemption 1.

FOIA Exemption 1 exempts from disclosure information that is “specifically authorized

under criteria established by an Executive order to be kept secret in the interest of national

defense or foreign policy” and “are in fact properly classified pursuant to such Executive order.”

5 U.S.C. § 552(b)(1). Under Executive Order 13526, an agency may withhold information that

an official with original classification authority has determined to be classified because its

“unauthorized disclosure could reasonably be expected to cause identifiable or describable

damage to the national security[.]” Exec. Order 13526 § 1.4, 75 Fed. Reg. 707, 709 (Dec. 29,

2009). The information must also “pertain[] to” one of the categories of information specified in

the Executive Order, including, as relevant here, “intelligence activities (including covert action),

26
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intelligence sources or methods.”8 Id. § 1.4(c); see also Judicial Watch, Inc. v. Dep’t of Def.,

715 F.3d 937, 941 (D.C. Cir. 2013) (“[P]ertains is not a very demanding verb.”) (citation

omitted)).

When it comes to matters affecting the national security, the courts have specifically

recognized the “propriety of deference to the executive in the context of FOIA claims which

implicate national security.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918,

927–28 (D.C. Cir. 2003); see Ray v. Turner, 587 F.2d 1187, 1194 (D.C. Cir. 1978) (“[T]he

executive ha[s] unique insights into what adverse [e]ffects might occur as a result of public

disclosure of a particular classified record.”). For these reasons, the courts have “consistently

deferred to executive affidavits predicting harm to the national security, and have found it

unwise to undertake searching judicial review.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927; see

Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009) (“Today we reaffirm our deferential

posture in FOIA cases regarding the ‘uniquely executive purview’ of national security.”)

(quoting Ctr. for Nat’l Sec. Studies, 331 F.3d at 927); accord Dillon v. Dep’t of Justice, 102 F.

Supp. 3d 272, 287 (D.D.C. 2015). Consequently, a reviewing court must afford “substantial

weight” to agency declarations “in the national security context.” King v. U.S. Dep’t of Justice,

830 F.2d 210, 217 (D.C. Cir. 1987); see Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990)

(holding that the district court erred in “perform[ing] its own calculus as to whether or not harm

to the national security or to intelligence sources and methods would result from disclosure”);

Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999) (noting that because “courts have little

expertise in either international diplomacy or counterintelligence operations, we are in no

position to dismiss the CIA’s facially reasonable concerns” about the harm that disclosure could

8
As also required by Executive Order 13526, Ms. Gaviria declares that she is an original
classification authority. See Exec. Order 13526 § 1.1(a); Gaviria Decl. ¶ 2.

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cause to national security). FOIA “bars the courts from prying loose from the government even

the smallest bit of information that is properly classified or would disclose intelligence sources or

methods.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983).

The Office of the Director of National Intelligence (“ODNI”) has determined that the

legal memorandum (Vaughn Index, Docs. 1-3) contains discrete words and phrases on one page

of the memorandum that pertain to “intelligence activities (including covert action), intelligence

sources or methods, or cryptology.”9 Exec. Order 13526 §1.4(c); Gaviria Decl. ¶¶ 13, 19.

Specifically, the withheld information relates to the U.S. Government’s assessment that Syrian

government forces carried out a chemical weapons attack on April 4, 2017. See Gaviria Decl. ¶

13. Ms. Gaviria declares that disclosing the withheld information would “reveal specific

[Intelligence Community (‘IC’)], including National Security Agency (‘NSA’), sources,

methods, and targets” underlying intelligence collection, “as well as the analytic tradecraft that

the IC utilizes in preparing intelligence products and informing US Government policymakers.”

Id. ¶ 14. For example, the withheld information specifically identifies the targets of Signals

Intelligence. Id. The fact that Signals Intelligence was directed at these identified targets also

reveals the “specific Signals Intelligence collection and technical capabilities of the NSA.” Id. ¶

15. Additionally, the withheld information includes the IC’s confidence assessment based on its

intelligence analysis of, among other things, Signals Intelligence reporting disseminated by NSA.

Id. ¶ 16. Therefore, the Gaviria Declaration establishes that the withheld information falls

squarely within the boundaries of Section 1.4(c) of Executive Order 13526.

9
Because the legal memorandum is properly withheld in full under the presidential
communications, attorney-client, and deliberative process privileges, all of the information
protected by Exemptions 1 and 3 is also exempt from disclosure under Exemption 5.

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The Gaviria Declaration also confirms that the unauthorized disclosure of the withheld

information reasonably could be expected to cause exceptionally grave and serious damage,

respectively, to the national security of the United States. See Gaviria Decl. ¶ 19. Indeed, Ms.

Gaviria has determined that the identity of specific Signals Intelligence targets is classified at the

TOP SECRET level.10 Id. ¶ 14. Revealing “to these targets that they are a target of interest to

the IC” and that “their communications are susceptible to interception” could prompt the targets

to take steps to thwart the IC’s collection efforts, “thereby denying the United States information

crucial to the national security.” Id. Likewise, specific NSA Signals Intelligence collection and

technical capabilities are also classified at the TOP SECRET level. Id. ¶ 15. Disclosure of the

scope, limits, and technical means and methods of NSA’s Signals Intelligence activities could

“alert targets to the vulnerabilities of their communications (and conversely, which of their

communications are not vulnerable)” and could “alert adversaries to the Government’s

awareness of [their] use of specific tradecraft.” Id. Such disclosures could prompt the use of

countermeasures, “causing a loss of information critical to the national security and defense of

the United States.” Id. Finally, the IC’s analytic tradecraft is classified at the level of

SECRET.11 Id. ¶ 16. Disclosing the IC’s confidence assessment could reveal to foreign

adversaries and intelligence services the types of information the IC values and the intelligence

interest the IC has in a particular person, entity, or subject matter, which could “impede future

intelligence operations and compromise critical sources and methods.” Id.

10
Top Secret information is defined as information, “the unauthorized disclosure of which
reasonably could be expected to cause exceptionally grave damage to the national security.”
Exec. Order 13526 § 1.2(a)(1); see Gaviria Decl. ¶¶ 14, 15.
11
Secret information is defined as information, “the unauthorized disclosure of which
reasonably could be expected to cause serious damage to the national security.” Exec. Order
13526 § 1.2(a)(2); see Gaviria Decl. ¶ 16.

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Ms. Gaviria has determined that the withheld information continues to be properly

classified notwithstanding that the Executive Branch provided public statements in a briefing and

background document to the press on April 11, 2017, generally describing information in the

government’s possession with regard to the April 4 chemical weapons attack. Id. ¶ 17. These

statements did not, however, “publicly divulge the specific targets from which [the IC]

successfully collected relevant Signals Intelligence,” “the specific collection and technical

capabilities from which Signals Intelligence was collected,” or “the analytic tradecraft utilized by

the IC to formulate its intelligence assessment.” Id. ¶ 18. The withheld information therefore

continues to be “currently and properly classified,” id., and, as such, Defendants appropriately

withheld such information pursuant to Exemption 1, see 5 U.S.C. § 552(b)(1).

B. Defendants Properly Withheld Classified Information Under Exemption 3.12

FOIA Exemption 3 exempts from disclosure records that are “specifically exempted from

disclosure by [another] statute” if the relevant statute “requires that the matters be withheld from

the public in such a manner as to leave no discretion on the issue” or “establishes particular

criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. §

552(b)(3). The “purpose of Exemption 3 [is] to assure that Congress, not the agency, makes the

basic nondisclosure decision.” Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830

F.2d 331, 336 (D.C. Cir. 1987). An agency’s mandate to withhold information under FOIA

12
In the course of making a classification determination with respect to information
contained in the legal memorandum, the Government determined that FOIA Exemption 3 is
applicable. Although Exemption 3 was not asserted by Defendants at the time of their responses
to Plaintiff’s request, it is nonetheless timely raised in the instant motion as a basis for
withholding certain information that is exempt from release under FOIA. Bayala v. U.S. Dep’t
of Homeland Sec., Office of Gen. Counsel, 827 F.3d 31, 34 (D.C. Cir. 2016) (“It is well-settled
that ‘an agency may prevail on an exemption that it has . . . raised either at the agency level or in
the district court . . . .’”) (quoting Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 779 (D.C. Cir.
1978)); see also Gula v. Meese, 699 F. Supp. 956, 959 n.2 (D.D.C. 1988).

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Exemption 3 is broader than its authority under FOIA Exemption 1, as it does not have to

demonstrate that the disclosure will harm national security. Cf. CIA v. Sims, 471 U.S. 159, 167

(1985); Gardels v. CIA, 689 F.2d 1100, 1106–07 (D.C. Cir. 1982). Instead, “the sole issue for

decision is the existence of a relevant statute and the inclusion of withheld material within the

statute’s coverage. It is particularly important to protect intelligence sources and methods from

public disclosure.” Morley v. CIA, 508 F.3d 1108, 1126 (D.C. Cir. 2007). In analyzing the

propriety of a withholding taken pursuant to FOIA Exemption 3, the Court need not examine

“the detailed factual contents of specific documents” in which withholdings have been taken. Id.

ODNI invokes three statutes that protect from public release IC targets, sources, and

methods: Section 102A(i)(1) and Section 6 of the National Security Act of 1947, as amended

(now codified at 50 U.S.C. §§ 3024(i)(1), 3605, respectively) and 18 U.S.C. § 798. Section

102A(i)(1) requires the Director of National Intelligence to “protect intelligence sources and

methods from unauthorized disclosure.” 50 U.S.C. § 3024(i)(1). Section 6 protects from

disclosure information relating to the function of the NSA, 50 U.S.C. § 3605, such as its Signals

Intelligence mission, Exec. Order 12333 § 1.7(c), as amended. Section 798 of Title 18 protects

from disclosure information concerning communications intelligence activities or information

obtained from communications intelligence processes. See 18 U.S.C. § 798(a)(3), (4). It is well-

settled that each of these statutes qualifies as an Exemption 3 withholding statute. See, e.g.,

DiBacco v. U.S. Army, 795 F.3d 178, 199 (D.C. Cir. 2015) (noting that Section 102A(i)(1) is an

Exemption 3 withholding statute that mandates withholding of intelligence sources and

methods); Hayden v. NSA/Cent. Sec. Serv., 608 F.2d 1381, 1389–90 (D.C. Cir. 1979) (same with

respect to Section 6); Larson, 565 F.3d at 868 (same with respect to 18 U.S.C. § 798). In fact,

the Supreme Court has recognized the “wide-ranging authority” provided by the National

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Security Act to protect intelligence sources and methods. Sims, 471 U.S. at 159, 169–70, 177,

180; see Halperin v. CIA, 629 F.2d 144, 147 (D.C. Cir. 1980) (explaining that the only question

for the court is whether the agency has shown that responding to a FOIA request “can reasonably

be expected to lead to unauthorized disclosure of intelligence sources and methods” (citation

omitted)).

The Gaviria Declaration attests that the classified information is properly withheld under

these three statutory provisions and FOIA Exemption 3. See Gaviria Decl. ¶¶ 21-23. For the

reasons discussed above with regard to Exemption 1, all of the classified information withheld

pertains to intelligence sources and methods protected from disclosure by either Section

102A(i)(1) or Section 6 of the National Security Act, as amended, or 18 U.S.C. § 798. Id. ¶¶ 21-

23. Ms. Gaviria explains that the withheld information cannot be publicly released because it

would reveal certain sensitive intelligence sources and methods associated with the IC’s

assessment of the April 4 chemical weapons attack. Id. ¶¶ 14-16.

Thus, Defendants properly withheld such information under FOIA Exemption 3.

IV. Defendants Released All Reasonably Segregable Information.

FOIA requires that, if a record contains information that is exempt from disclosure, any

“reasonably segregable” information must be disclosed after deletion of the exempt information.

5 U.S.C. § 552(b). Agencies must, therefore, release all non-exempt portions of a document

“unless they are inextricably intertwined with exempt portions.” Mead Data Cent., Inc., 566

F.2d at 260 (stating information is not segregable if, absent exempt information, “the result

would be an essentially meaningless set of words and phrases,” id. at 261). “A ‘document-by-

document’ review and a declaration that each piece of information that is withheld is not

reasonably segregable is sufficient to show that an entire document cannot be produced.”

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Judicial Watch, Inc., 245 F. Supp. 3d at 36-37 (citing Juarez v. U.S. Dep’t of Justice, 518 F.3d

54, 61 (D.C. Cir. 2008); Beltranena v. U.S. Dep’t of State, 821 F. Supp. 2d 167, 178-79 (D.D.C.

2011)). “Agencies are entitled to a presumption that they complied with the obligation to

disclose reasonably segregable material.” See Sussman v. U.S. Marshals Serv., 494 F.3d 1106,

1117 (D.C. Cir. 2007).

Consistent with this obligation, Defendants carefully reviewed document-by-document or

line-by-line each of the records from which information was withheld pursuant to one of the

FOIA Exemptions. See Castellano Decl. ¶ 44, Colborn Decl. ¶ 29, Herrington Decl. ¶ 19, Stein

Decl. ¶ 27. Defendants have submitted declarations affirming that, where portions of records

were released in part with redactions, all non-exempt information in such records was segregated

for release. See Castellano Decl. ¶ 43; Herrington Decl. ¶ 19. Where pages or entire documents

were withheld in full, Defendants have confirmed that no segregation of meaningful information

could be made without disclosing information warranting protection under FOIA. See id.; see

also Colborn Decl. ¶ 29; Stein Decl. ¶ 27.

Defendants have thus established that they released all reasonably segregable, non-

exempt information and are entitled to summary judgment on this issue. Sussman, 494 F.3d at

1117.

CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court grant their

motion and enter summary judgment in their favor.

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Dated: November 17, 2017 Respectfully submitted,

CHAD A. READLER
Principal Deputy Assistant Attorney General

JESSE K. LIU
United States Attorney

ELIZABETH J. SHAPIRO
Deputy Branch Director
Federal Programs Branch

/s/ Kathryn C. Davis


KATHRYN C. DAVIS (DC Bar No. 985055)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW, Rm. 6130
Washington, D.C. 20530
Tel: (202) 616-8298
Fax: (202) 616-8460
Email: Kathryn.C.Davis@usdoj.gov

Attorneys for Defendants

34