NEEDREPLACE

7 F.Supp.3d 16

Center for Effective Government, Plaintiff,

v.U.S. Department of State, et al., Defendants.

Civil Action No. 13–0414 (ESH)

United States District Court, District of Columbia.

December 17, 2013

Government's motion denied; requester's motion granted. Adina Rosenbaum, Julie A. Murray, Public Citizen Litigation Group, Washington, DC, for Plaintiff.

Kyle Renee Freeny, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge

This Freedom of Information Act (“FOIA”) case pertains to a single document—the Presidential Policy Directive on Global Development (the “PPD–6”). In 2011, plaintiff Center for Effective Government submitted FOIA requests for this document to the U.S. Department of State (“State”) and U.S. Agency for International Development (“USAID”). Both agencies denied the requests upon initial review and on appeal. Before the Court are parties' cross-motions for summary judgment.¹ The sole question presented is whether the PPD–6 is protected from disclosure under FOIA by Exemption 5's “presidential communications privilege.” On November 8, 2013, the Court ordered the government to produce a copy of the PPD–6 to the Court for in camera review. (Order, Nov. 8, 2013 [Dkt. No. 21].) Upon consideration of the entire record, the PPD–6, and the parties' cross-motions for summary judgment, the Court will deny the government's motion and grant plaintiff's motion. ²

The Office of Legal Counsel within the Department of Justice has taken the position “that there is no substantive difference between an executive order and a presidential directive that is not styled as an executive order.” Legal Effectiveness of A Presidential Directive, as Compared to an Executive Order, 2000 WL 33155723, * 1 (Op. Att'y Gen. Jan. 29, 2000). “It is the substance of the presidential action that is determinative [of its legal effect], not the form of the document conveying that action.” Id. The government continues to embrace this interpretation that presidential directives “can have the force of law.” (Gov't Reply at 7.)

As explained in a declaration filed by a senior member of the National Security Staff (“NSS”), Daniel Sanborn, “the President communicates [in the PPD–6] ... his Administration's global development policy objectives and priorities and how Executive Branch resources should be organized and aligned to best achieve them.” (Decl. of Daniel Sanborn (“Sanborn Decl.”), June 21, 2013 [Dkt. No. 11–2] ¶ 9.) In particular, the PPD–6 “calls for the elevation of development as a core pillar of American power and charts a course for development, diplomacy and defense to mutually reinforce and complement one another in an integrated comprehensive approach to national security.” (PPD–6 Fact Sheet at A1.) It also “provides clear policy guidance to all U.S. Government agencies and enumerates [the] core objectives, [the] operational model, and the modern architecture ... need[ed] to implement this policy.” ( Id.)

According to Sanborn, the President initially distributed the PPD–6 to a “limited group of senior foreign policy advisors, cabinet officials, and agency heads concerning the global development policy of the United States.” (Sanborn Decl. ¶ 4.)⁴ The PPD–6 was accompanied by a transmittal memorandum emphasizing “a need for the recipients to safeguard carefully the Directive's content” ( id. ¶ 5) and informing the recipients to “not distribute the document beyond their departments or agencies without advance approval of the NSS.” ( Id. ¶ 6.) However, the recipients were not so limited in their ability to distribute the PPD–6 within their own departments or agencies, where it was permissible to circulate the directive on a “need-to-know basis.” ( Id. ¶ 7.) Under this instruction, it is apparent that the PPD–6 has been widely distributed within the Executive Branch .⁵ As one example, lower-level staff members at State and USAID used the PPD–6 during their preparation of the First Quadrennial Diplomacy and Development Review. ( See The First Quadrennial Diplomacy and Development Review (“QDDR”), U.S. Dep't of State and U.S. Agency for Int'l Dev. (2010) [Dkt. No. 16–1 Att. G] at G20.) The team responsible for that review “was guided by the [PPD–6] to ensure that [the review's] findings and recommendations were aligned and complementary.” ( Id. at G17.) This team included QDDR senior leadership, a fourteen-member executive council, four drafters and editors, and a QDDR leadership team of at least twenty people from the Departments of State and Defense, the USAID, and the Millennium Challenge Corporation, including an “Office Management Specialist,” several “Staff Assistant[s],” and an advisor serving as a Presidential Management Fellow. ( Id. at G20.)

In sum, the PPD–6 is a widely-publicized, non-classified Presidential Policy Directive on issues of foreign aid and development that has been distributed broadly within the Executive Branch and used by recipient agencies to guide decision-making. Even though issued as a directive, the PPD–6 carries the force of law as policy guidance to be implemented by recipient agencies, and it is the functional equivalent of an Executive Order. ( See supra note 3.) The government, however, claims that the PPD–6 is protected from disclosure under FOIA by Exemption 5's presidential communications privilege. (Gov't Mot. at 5.) The application of the presidential communications privilege to an unclassified, widely distributed presidential directive is an issue of first impression, but the Court is guided by Exemption 5 jurisprudence that teaches that the determination will ultimately turn on the “factual content and purpose of” the PPD–6. Dow Jones & Co. v. Dep't of Justice, 917 F.2d 571, 575 (D.C.Cir.1990).⁶

LEGAL ANALYSIS

I. EXEMPTION 5: PRESIDENTIAL COMMUNICATIONS PRIVILEGE

“FOIA directs that ‘each agency, upon any request for records ..., shall make the records promptly available to any person’ for ‘public inspection and copying,’ unless the records fall within one of the exclusive statutory exemptions.” Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108, 1112 (D.C.Cir.2004) (quoting 5 U.S.C. § 552(a)(2), (a)(3)(A)). “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.” N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); see also N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 153, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (concluding that FOIA “represents a strong congressional aversion to secret (agency) law, and represents an affirmative congressional purpose to require disclosure of documents which have the force and effect of law.” (internal quotation marks and citations omitted)). Pursuant to this purpose, FOIA is broadly conceived to permit access to “official information” as part of a “general philosophy of full agency disclosure,” EPA v. Mink, 410 U.S. 73, 80 & n. 6, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) (citation omitted), such that “the Government's activities be opened to the sharp eye of public scrutiny.” U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 774 & n. 20, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (emphasis omitted). “FOIA thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions. These exemptions are ‘explicitly made exclusive,’ and must be ‘narrowly construed,’ ” Milner v. Dep't of Navy, ––– U.S. ––––, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011) (quoting Mink, 410 U.S. at 79, 93 S.Ct. 827, & FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982)), and it is the government's burden to prove that a given exemption applies. Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 30 (D.C.Cir.1998).

The exemption at issue in this case—Exemption 5—“allows the government to withhold ‘inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency.’ ” Judicial Watch, 365 F.3d at 1113 (quoting 5 U.S.C. § 552(b)(5)). Exemption 5 “incorporates the traditional privileges that the Government could assert in civil litigation against a private litigant,” Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C.Cir.2008) (internal quotation marks omitted), including the presidential communications privilege. Judicial Watch, 365 F.3d at 1113; see also Sears, Roebuck & Co., 421 U.S. at 149 n. 16 & 150, 95 S.Ct. 1504. The test under Exemption 5 is whether, upon a showing of relevance, the documents would “routinely” or “normally” be disclosed in a civil discovery context. U.S. Dep't of Justice v. Julian, 486 U.S. 1, 12, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988). As described by the Supreme Court, “Exemption 5, properly construed, calls for ‘disclosure of all ‘opinions and interpretations' which embody the agency's effective law and policy, and the withholding of all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be.’ ” Sears, Roebuck, & Co., 421 U.S. at 153, 95 S.Ct. 1504 (quoting Kenneth Culp Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L.Rev. 761, 797 (1967)).

The presidential communications privilege is a “presumptive privilege for [p]residential communications,” United States v. Nixon, 418 U.S. 683, 708, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), that “preserves the President's ability to obtain candid and informed opinions from his advisors and to make decisions confidentially.” Loving, 550 F.3d at 37; see also In re Sealed Case, 121 F.3d 729, 750 (D.C.Cir.1997) (“[T]he privilege itself is rooted in the need for confidentiality to ensure that presidential decisionmaking is of the highest caliber, informed by honest advice and full knowledge.” (emphasis added))....