United States District Court, E.D. Pennsylvania
JOEL H. SLOMSKY, District Judge.
Plaintiff Tuan Samahon brings this action under the Freedom of Information Act ("FOIA") seeking an order to compel the United States Department of Justice to publicly disclose two unredacted internal government memoranda. 5 U.S.C. § 552. Both memoranda sought by Samahon were drafted in the Office of Legal Counsel at the Department of Justice. One was sent to Counsel to the President of the United States. The other was not sent but was maintained in a file at the Office of Legal Counsel. Both memoranda address the legal limits of the presidential recess appointment power granted by the United States Constitution. The Department of Justice claims that both memoranda are ineligible for full disclosure because they are subject to FOIA Exemption 5 as privileged agency memoranda. Plaintiff claims that the Department of Justice waived its privilege because it cited these memoranda in a third memorandum which was publicly-disclosed.
II. PROCEDURAL HISTORY
The parties in this lawsuit are Plaintiff Tuan Samahon, a law professor, and Defendant the United States Department of Justice ("DOJ"). On July 15 and November 6, 2013, Samahon filed FOIA requests with the DOJ Office of Legal Counsel ("OLC"),  for two OLC agency records: first, on July 15, 2013, he sought an unredacted version of a 2004 memorandum from Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, titled "Re: Recess Appointments in the Current Recess of the Senate" ("Goldsmith Memorandum"); and second, on November 6, 2013, he sought a 2009 "file" memorandum from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, titled "Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Pro Forma Sessions'" ("Elwood Memorandum").
In letters dated July 26, 2013 and November 15, 2013, the DOJ denied Samahon's two FOIA requests for the Goldsmith and Elwood Memoranda respectively, claiming that both documents were properly withheld under Exemption 5, which protects privileged inter - and intra-agency documents from disclosure. 5 U.S.C. § 552(b)(5). Samahon appealed both denials to the DOJ's Office of Information Policy ("OIP"), which affirmed the OLC decisions on September 10, 2013 and January 24, 2014. (Doc. No. 16 at 4.)
After exhausting his administrative remedies, Samahon instituted the current action in this Court by filing a Complaint (Doc. No. 1) on November 6, 2013 and an Amended Complaint (Doc. No. 16) on February 19, 2014. The Amended Complaint alleges four separate FOIA violations: in Count One, failure to provide an unredacted version of the Goldsmith Memorandum; in Count Two, failure to provide reasonably segregable portions of the Goldsmith Memorandum; in Count Three, failure to release the Elwood Memorandum; and in Count Four, failure to provide reasonably segregable portions of the Elwood Memorandum. (Doc. No. 16 ¶¶ 36-63.) In the Amended Complaint, Samahon requests an order declaring the nondisclosures unlawful, and seeks injunctive relief and attorney's fees. (Id. at 12.)
Before the Court are the parties' cross-motions for summary judgment. In deciding the motions, the Court has considered the following documents: Defendant's Motion for Summary Judgment filed on May 7, 2014 (Doc. No. 22), Plaintiff's Motion for Summary Judgment filed on June 18, 2014 (Doc. No. 24), Defendant's Response in Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply in Support of its Motion for Summary Judgment filed on July 16, 2014 (Doc. No. 25), and Plaintiff's Reply to Response to Motion for Summary Judgment (Doc. No. 28).
For reasons that follow, Defendant's Motion for Summary Judgment will be granted on Counts One, Two, and Three of the Amended Complaint, and Plaintiff's Motion for Summary Judgment will be denied on those counts. The Court, however, will reserve judgment on Count Four, pending the results of an in camera inspection of the Elwood Memoranda to determine what, if any, portion of this Memorandum should be disclosed because it may contain facts that are nonexempt and reasonably segregable from exempt material.
Plaintiff Samahon is a tenured professor at Villanova University School of Law, where he researches separation of powers at the federal level. (Doc. No. 1 at 2.) According to Samahon, his FOIA requests and this litigation arose out of his research about the scope of the President's recess appointment power. (Id.) Under FOIA, he requests disclosure of the Goldsmith and Elwood Memoranda because he believes the advice contained therein served as a legal foundation for President Barack Obama's January 4, 2012 decision to use his recess appointment power to fill three vacancies on the National Labor Relations Board during skeletal "pro forma" sessions of the Senate. The appointments were made without Senate approval. (Doc. No. 16 at 1, 4.) The recess appointments made during the pro forma sessions were met with public criticism and judicial scrutiny, and ultimately were held unconstitutional by the Supreme Court in National Labor Relations Board v. Noel Canning, 134 S.Ct. 2550 (U.S. 2014).
A. Public Disclosure of the Existence of the Goldsmith and Elwood Memoranda
The Goldsmith and Elwood Memoranda were not disclosed to the public at the time of their creation in 2004 and 2009. Their existence was first revealed on January 12, 2012 through public dissemination of another OLC memorandum to Counsel to President Obama from Viriginia Seitz, Assistant Attorney General, entitled "Re: Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions." This memorandum, known as the "Seitz Memorandum, " was written on January 6, 2012-two days after the January 4, 2012 appointments to the NLRB-and served as part of the government's response to public inquiry regarding the recess appointments. (Doc. No. 16 ¶ 21; Doc. No. 16, Ex. F ["Seitz Memo."]). It was subsequently published on January 12, 2012 on the OLC's website. (Id.)
The Seitz Memorandum proclaimed to be a mere recitation of verbal advice previously given to Counsel to the President by the OLC before January 4, 2012, and it opined that the President had the authority to make recess appointments during the Senate's pro forma sessions. (Doc. No. 16 ¶ 23.) The Seitz Memorandum refers to the Goldsmith Memorandum six times, and to the Elwood Memorandum once. (Doc. No. 24 at 5-7.)
Samahon argues that the Goldsmith and Elwood Memoranda should be disclosed because they are referred to in the Seitz Memorandum, which itself was publicly discussed or referred to by the Obama Administration in two instances after its disclosure.
First, on January 12, 2012-the day on which the Seitz Memorandum was initially disclosed-journalists asked Presidential Press Secretary Jay Carney if the January 4 appointments were made without DOJ approval, because the Seitz Memorandum was dated two days after the appointments were made. (See Doc. No. 24, Ex. H at 7.) Mr. Carney responded:
No. The fact is the opinion was rendered verbally prior to the date of the opinion itself. The opinion was based on the advice provided by OLC, and it is very standard for-especially a long-as you've seen in the lengthy opinion that was put out, for those things to be developed over a period of time. And this is-the timeframe for this is very similar to, in my understanding, to previous occasion [sic].
(Id.) Later in that briefing, with respect to the President's recess appointments, a different reporter asked Mr. Carney if the Obama Administration "[was] ready for those [litigation] fights when they do come?" (Id. at 9.) Mr. Carney responded, "Well, I would just refer you to the OLC memo, " referring to the Seitz Memorandum. (Id.)
In the second instance, the United States Solicitor General cited the Seitz Memorandum once in its petition for certiorari and five times in a merits brief filed in the United States Supreme Court on behalf of the Obama Administration in the case involving the legality of the NLRB "recess" appointments. (Doc. No. 24 at 8-9); Petition for Writ of Certiorari, NLRB v. Noel Canning, 134 S.Ct. 2250 (2014) (No. 12-1281) (2013 WL 1771081); Brief for Petitioner, NLRB v. Noel Canning, 134 S.Ct. 2550 (2014) (No. 12-1281) (2013 WL 5172004).
B. Samahon Requests the Goldsmith and Elwood Memoranda
On July 15, 2013, Samahon made the request for the release of the Goldsmith Memorandum from the OLC. (Doc. No. 24 at 11.) In response, on July 26, 2013, the OLC released a heavily redacted version of the Goldsmith Memorandum to Samahon, but refused to disclose an unredacted copy. ( Id., Ex. A.) Seven sentences of the Goldsmith Memorandum survived redaction, all of which state the memorandum's conclusion. (Doc. No. 24-2, Ex A.) Not to be dissuaded, Samahon requested a copy of the Elwood Memorandum on November 6, 2013. (Doc. No. 24 at 12.) On November 15, 2013, the OLC refused to disclose any part of the Elwood Memorandum, ultimately thwarting Samahon's research efforts. (Id.)
The DOJ defends its decision to withhold the unredacted version of the Goldsmith Memorandum and the entire Elwood Memorandum by asserting that they are privileged and therefore excused from disclosure under Exemption 5 to FOIA, which permits an agency to withhold "inter-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). Under Exemption 5, three privileges are relied upon by the DOJ which would justify withholding the Goldsmith Memorandum as an inter-agency communication: (1) the deliberative process privilege; (2) the presidential communications privilege; and (3) the attorney-client privilege. (Doc. No. 22-1 at 8.) The DOJ is withholding the Elwood Memorandum on the basis that it is protected by two privileges arising under Exemption 5: (1) the deliberative process privilege and (2) the attorney-client privilege. (Doc. No. 22-1 at 15.)
Conversely, Samahon claims that the DOJ waived its claims of privilege for the Goldsmith and Elwood Memoranda in two ways: first, because they were relied upon and cited in the Seitz Memorandum, which itself was adopted by President Obama and his administration; and second, because both documents should be categorized as "working law" of the Obama Administration because they were adopted as official statements by Carney and in the petition for a writ of certiorari and the merits brief in the NLRB litigation in the United States Supreme Court. (Doc. No. 24 at 2, 13, 19.) The DOJ denies that it waived any privilege for either document. (Doc. No. 22-1 at 2.)
In the alternative, Samahon claims that even if portions of either memorandum are properly subject to Exemption 5, it is nevertheless improper for the DOJ to withhold "reasonably segregable" facts contained in them pursuant to § 552(b) of FOIA, which requires that "[a]ny reasonably segregable portion of a record  be provided to any person requesting such a record after deletion of the portions which are exempt...." 5 U.S.C. § 552(b); (Doc. No. 24 at 33.) In defense, the DOJ claims that the privileged portions of both memoranda are not reasonably segregable from facts that would otherwise be subject to disclosure.
The Court will address first whether the Goldsmith and Elwood Memoranda are covered by privileges under Exemption 5, then will discuss whether the Obama Administration waived any privilege that would justify not disclosing the two memoranda. Finally, the Court will consider whether the government is required to turn over any portion of the two memoranda that is reasonably segregable from privileged material.
IV. STANDARD OF REVIEW
Ordinarily, summary judgment is only appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In this case, the material facts enumerated above are not in dispute.
Most FOIA actions are resolved by summary judgment. See Lewis v. EPA, No. 06-2660, 2006 WL 3227787, at *2 (E.D. Pa. Nov. 3, 2006). But the standard of review on summary judgment for FOIA actions is unique: "the familiar standard of appellate review promulgated by Federal Rule of Civil Procedure 56(c) does not apply, and the District Court is actually required to make distinct decisions as to factual questions." Venkataram v. Office of Info. Policy, 590 F.Appx. 138, 138 n.1 (3d Cir. 2014) (citations and internal quotation marks omitted).
Accordingly, when disposing of a FOIA case on summary judgment, the District Court must first have an "adequate factual basis for its determination." Manna v. U.S. Dep't of Justice, 51 F.3d 1158, 1162 (3d Cir. 1995); see also Frankenberry v. FBI, 567 F.Appx. 120, 121 (3d Cir. 2014). In light of this requirement, the agency claiming an exemption to FOIA bears the burden of proving that the claimed exemption applies by providing an adequate factual basis. Manna, 51 F.3d at 1163. To satisfy its burden, the agency must "fil[e] affidavits describing the material withheld and detailing why it fits within the claimed exemption." Id . (internal quotation marks omitted). These descriptive affidavits serve the purpose of informing the Court and the FOIA requester of the contents of the documents:
The significance of agency affidavits in a FOIA case cannot be underestimated. As, ordinarily, the agency alone possesses knowledge of the precise content of documents withheld, the FOIA requester and the court both must rely upon its representations for an understanding of the material sought to be protected.
Id. (quoting McDonnell v. United States, 4 F.3d 1227, 1241 (3d Cir. 1993)). Thus, the agency's explanation of the document in the affidavit must be "full and specific enough to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding." Id. at 1162-63 (quoting McDonnell, 4 F.3d at 1242). In view of these requirements, the agency is entitled to summary judgment when the affidavits
describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.
Id. at 1163-64 (quoting Am. Friends Serv. Comm. v. Dep't of Defense, 831 F.2d 441, 444 (3d Cir. 1987)). Importantly, the agency enjoys a presumption of good faith in the submission of these affidavits: "The court should not question the veracity of the agency's submissions explaining the reason for its nondisclosure unless there is evidence of bad faith." Andela v. Admin. Office of U.S. Courts, No. 13-0865, 2014 WL 695209, at *2 (E.D. Pa. Feb. 21, 2014), aff'd, 569 F.Appx. 80 (3d Cir. 2014).
Moreover, FOIA cases demand an enhanced level of judicial scrutiny. See Samahon v. FBI, No. 12-4839, 2014 WL 4179933, at *5 (E.D. Pa. Aug. 25, 2014) (quoting U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989)). In lieu of the "arbitrary and capricious" standard used for reviewing an agency determination, judicial review of an agency's denial of a FOIA request is de novo. Id .; see also AT&T Inc. v. FCC., 582 F.3d 490, 496 (3d Cir. 2009), rev'd on other grounds, 131 S.Ct. 1177 (2011); Amro v. U.S. Customs Serv., 128 F.Supp.2d 776, 781 (E.D. Pa. 2001).
A. FOIA Overview
FOIA is a statute which "reflects a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." U.S. Dep't of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 494 (1994) (internal quotation marks omitted). Under FOIA, any agency, upon any request, must make records promptly available to any person. Am. Civil Liberties Union of N.J. v. FBI, 733 F.3d 526, 531 (3d Cir. 2013) (quoting 5 U.S.C. § 552(a)(3)(A)) (internal quotation marks omitted).
Generally, there is a presumption in favor of disclosure. Manna, 51 F.3d at 1163. However, "because public access to government information is not all encompassing, " there are nine categories of documents exempt from FOIA's broad disclosure requirements. Am. Civil Liberties Union of N.J., 733 F.3d at 531; see 5 U.S.C. § 552(b)(1)-(9). These exemptions must be "narrowly construed, because disclosure, not secrecy, is the dominant objective of the Act." Andela, 2014 WL 695209, at *3 (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 7 (2001)) (internal quotation marks omitted). Nevertheless, despite their narrow application, "the statutory exemptions are intended to have meaningful reach and application and should not be construed in a nonfunctional way." Manna, 51 F.3d at 1163 (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)).
B. Exemption 5
In this case, the DOJ argues that the Goldsmith and Elwood Memoranda are protected from disclosure by privileges arising under FOIA's Exemption 5. 5 U.S.C. § 552(b)(5). Exemption 5 spares from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Id . To qualify under Exemption 5, the document must satisfy the following two preconditions: (1) "its source must be a Government agency;" and (2) "it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it." Klamath, 532 U.S. at 8.
Here, it is not in dispute that the OLC is a government agency, satisfying the first precondition. "[A]gency is defined to mean each authority of the Government, and includes entities such as Executive Branch departments, military departments, Government corporations, Government-controlled corporations, and independent regulatory agencies." Klamath, 532 U.S. at 2 (citing 5 U.S.C. §§ 551(1), 552(f)) (citations and internal quotation marks omitted). The parties do not contest that the DOJ and the OLC are departments within the Executive Branch. Thus, the Goldsmith and Elwood Memoranda are the type of agency memoranda covered by Exemption 5.
Under the second precondition, Exemption 5 encompasses only those documents which fall within traditional discovery privileges. Abdelfattah v. U.S. Dep't of Homeland Sec., 488 F.3d 178, 184 (3d Cir. 2007); see also Conoco Inc. v. U.S. Dep't of Justice, 687 F.2d 724, 727 (3d Cir. 1982) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)) (internal quotation marks omitted) (stating that Exemption 5 protects any document which would be "normally privileged in the civil discovery context").
In this case, as noted above, the DOJ asserts that the Goldsmith Memorandum is protected under Exemption 5 by three separate privileges: the deliberative process, attorney-client, and presidential communications privileges. For the Elwood Memorandum, as a "file" memorandum, the DOJ only claims protection under the deliberative process and attorney-client privileges. Because these privileges can be asserted during discovery in litigation, the deliberative process, presidential communications, and attorney-client privileges fall within Exemption 5's ambit. See, e.g., Klamath, 532 U.S. at 2 ("Those privileges [covered by Exemption 5] include the privilege for attorney work product and the so-called deliberative process privilege'...."); Judicial Watch, Inc. v. U.S. Dep't of Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004) ("Exemption 5 also has been construed to incorporate the presidential communications privilege."). Thus, the DOJ has met its initial burden of proving that the Goldsmith and Elwood Memoranda are eligible for protection under Exemption 5.
A. The DOJ Has Provided an Adequate Factual Basis for the Court to Determine Whether the Memoranda Are Protected by a Privilege
On an additional threshold matter, the DOJ has provided the Court with an adequate factual basis of the contents of the Goldsmith and Elwood Memoranda to determine whether privilege would protect the memoranda from disclosure. As noted above, "before evaluating whether an asserted exemption to disclosure applies, a district court must ensure that it has an adequate factual basis' to make an informed determination." Samahon, 2014 WL 4179933, at *5 (citing McDonnell, 4 F.3d at 1242). In this case, the DOJ provided a sixteen-page affidavit of OLC Special Counsel Paul P. Colborn which details the type of information and advice enumerated in the Goldsmith and Elwood Memoranda. (Doc. No. 22-1 at 5; Doc. 22-2, Declaration of Paul P. Colborn [hereinafter "Colborn Decl."].)
The Colborn affidavit satisfies the DOJ's burden to provide such an adequate factual basis on matters of privilege. The affidavit details the context, purpose, and subsequent utilization of the memoranda by the OLC and presidential administrations, and parts of the affidavit are cited below in discussing the Goldsmith and Elwood Memoranda. The affidavit also provides Samahon an adequate basis to contest the withholding because Samahon has filed a detailed Complaint and Motion for Summary Judgment based on this information. Moreover, as will be evident by the analysis below, the affidavit roadmaps a logical connection between the information sought to be disclosed and Exemption 5, enabling the Court to adequately "review the soundness of the withholding." See Manna, 51 F.3d at 1162-64.
B. The Goldsmith and Elwood Memoranda Were Properly Withheld Under Exemption 5
1. Deliberative process privilege
The deliberative process privilege covers "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Sears, Roebuck & Co., 421 U.S. at 150. The crucial purpose of this privilege is to prevent a chilling effect on the political decisionmaking process- it "rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news...." Klamath, 532 U.S. at 8-9. By extension, such unfettered freedom to engage in "open and frank discussion" promotes the quality of agency deliberations and resulting agency policy. Id.
Agency memoranda must satisfy two criteria to qualify for the deliberative process privilege covered by Exemption 5: they must be both predecisional and deliberative. Abdelfattah, 488 F.3d at 183. A document is "predecisional" when it is "prepared in order to assist an agency decisionmaker in arriving at his decision...." Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 (1975). By definition, the document must be received by the decisionmaker before the decision is made. Berger v. IRS, 487 F.Supp.2d 482, 498 (D.N.J. 2007). "A document is deliberative' when it reflects the give-and-take of the consultative process." Manna v. U.S. Dep't of Justice, 815 F.Supp. 798, 815 (D.N.J. 1993), aff'd, 51 F.3d 1158 (3d Cir. 1995). Put differently, a document is deliberative if "it makes recommendations or expresses opinions on legal or policy matters." State of Delaware Dep't of Natural Res. & Envtl. Control v. U.S. Army Corp of Eng'rs, 722 F.Supp.2d 535, 544 (D. Del. 2010) (quoting Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975)).
In contrast to the concepts of "predecisional" and "deliberative" are finalized agency memoranda and opinions that summarize a decisionmaker's final disposition of an issue or claim. Final opinions must be disclosed pursuant to the statute because they "not only invariably explain agency action already taken or an agency decision already made, but also constitute final dispositions of matters by an agency" under the statute. Sears, Roebuck & Co., 421 U.S. at 153-54 (citing 5 U.S.C. § 552(a)(2)). These final decisions are not protected by Exemption 5 because it would not "intrude on predecisional processes" or affect the quality of the final decision. Id. at 155.
a. Goldsmith Memorandum
The Goldsmith Memorandum contains written advice provided to Counsel for President George W. Bush in February 2004 regarding the recess appointment power of the President. Specifically, the Colborn Affidavit ...