Advocates for the West v. DOJ, No. 17-00423, 2018 WL 3733639 (D. Idaho August 6, 2018) (Nye, J.)

Advocates for the West v. DOJ, No. 17-00423, 2018 WL 3733639 (D. Idaho August 6, 2018) (Nye, J.)

Re:  Twelve legal memoranda prepared by the Office of Legal Counsel (OLC) about the President's authority to alter national monuments under the Antiquities Act of 1906

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Litigation Consideration, Vaughn Index/Declaration: In response to the plaintiff's argument that the defendant does not list "a specific recipient for each of the records in its index," the court notes, "there are not strict requirements" for Vaughn indices.  Although the defendant "could have added more details, it has provided sufficient information here to 'permit the adversarial process to function.'"  The defendant "has stated since the beginning of this case that all of the documents went to the President and/or his senior advisors and staff – all of whom are covered under the privileges asserted."  The court explains that where "all the documents at issue are essentially the same, it is not unusual that the descriptions of each document are essentially the same as well."
   
• Exemption 5, Presidential Communications Privilege: The court rejects the plaintiff's request to "construe the [presidential communications privilege] narrowly [and] limit it to Article II powers."  The court explains, "restricting the presidential communications privilege to Article II powers would draw an arbitrary line – a line without legal basis at this point and 'undermine the purpose for which the privilege exists.'"  The court holds that the presidential communications privilege applies to "ten [memoranda] to senior presidential advisors in an effort to assist with presidential decision making and deliberations" and "the communications memorialized in two File Memoranda [that] were likewise legal advice given to the President's senior advisors." 

• Exemption 5, Deliberative Process Privilege: The parties agree that the two file memoranda are predecisional and deliberative, but disagree as to the nature of the two form and legality memoranda.  The court finds that "while the F&L Memos may be a quasi-final position of OLC as it relates to its job in advising the President and other top officials, it is by no means a final policy of DOJ or OLC."  Accordingly, the court holds that the "F&L Memos were not final policies, but predecisional and deliberative in nature."  The court finds that the deliberative process privilege is not overcome in this case by the working law or adoption doctrines. 
   
• Segregability: The court holds that segregation is not required because the presidential communications privilege applies to the document in its entirety.  As further support, the court cites to the defendant's declaration to explain "'[a]lthough the attached cover letters do not themselves contain legal advice, their disclosure would reveal the titles of the relevant proclamations, and accordingly would reveal which proclamations were subject to this additional confidential legal advice.'"