BuzzFeed, Inc. v. FBI, No. 18-2567, 2020 WL 2219246 (D.D.C. May 7, 2020) (Howell, J.)

BuzzFeed, Inc. v. FBI, No. 18-2567, 2020 WL 2219246 (D.D.C. May 7, 2020) (Howell, J.)

Re:  Requests for records concerning FBI's 2018 supplementary background investigation ("SBI") into then-Judge Brett Kavanaugh

Disposition:  Granting defendant's motion for summary judgment; denying plaintiffs' cross-motion for summary judgment

• Exemption 5, "Inter-Agency or Intra-Agency" Threshold Requirement & Other Privileges:  The court holds that "binding D.C. Circuit precedent compels the conclusion that Exemption 5 encompasses the presidential communications privilege and the finding that the SBI File, itself a communication between the FBI and the President and containing additional such communications, constitutes 'intra-agency memorandums or letters' under FOIA Exemption 5."  The court relates that "the D.C. Circuit has explained, 'the Supreme Court [has] deemed it "beyond question" that documents prepared by agency officials to advise the President were within the coverage of Exemption 5 because they were '"intra-agency"' or "inter-agency" memoranda or "letters" that were used in the decisionmaking processes of the Executive Branch.'"  "For this reason, the D.C. Circuit has consistently viewed Exemption 5 as covering the presidential communications privilege." 
   
  The court relates that "[i]n the face of this binding precedent cementing the 'routine' incorporation of the presidential communications privilege into Exemption 5 . . .  plaintiffs rely on [Food Mktg. Inst. v. Argus Leader Media] in which the Supreme Court rejected a 'competitive harm' test unsupported by the text of Exemption 4, to argue that 'policy reasons are irrelevant in light of the plain text of the statute limiting the exemption to "inter-agency or intra-agency" records' . . . ."  The court finds that "[t]o the extent plaintiffs believe that Argus Leader requires new attention to the text of Exemption 5's first condition of an inter- or intra-agency communication, binding precedent in this circuit again dictates the result."  The court notes that "the D.C. Circuit has continued, post-[Dep’t of Interior v. Klamath Water Users Protective Ass’n], to apply its functional approach to find that communications between agencies and outside, or non-agency, entities may indeed meet the first statutory condition of Exemption 5."  "Most relevant here, the D.C. Circuit, post-Klamath, . . . concluded that agency communications with a non-agency government entity, the National Energy Policy Development Group . . . , created and tasked by the President to provide him with advice and assistance, were 'intra-agency' communications even though the President and his immediate staff are not an 'agency' within the meaning of FOIA."  "The court expressly rejected the view that this 'interpretation of Exemption 5' is inconsistent 'with its textual limitation to "intra-agency" or "inter-agency" communications,' explaining '[r]ather, it follows from the principle, well established in this circuit, that a document need not be created by an agency or remain in the possession of the agency in order to qualify as "intra-agency."'"   "This holding recognized 'the basic need of the President and his White House staff to monitor the consistency of executive agency regulations with Administration policy,' and to 'be briefed fully and frequently about rules in the making, and their contributions to policymaking considered.'"
   
• Exemption 5, Presidential Communications Privilege:  The court holds that "the SBI File is protected by the presidential communications privilege under Exemption 5."  The court finds that "the SBI File was 'solicited and received' by 'immediate White House advisers' with 'broad and significant responsibility for investigating and formulating . . . advice to be given the President.'"  Also, the court finds that "the SBI was requested to assist the President [to] 'effectively and faithfully carry out his Article II duties,' in line with the overarching purpose of the privilege."  "As the government points out, the appointment of Supreme Court justices is a core, nondelegable presidential duty specifically enumerated in Article II of the Constitution."  "The critical importance of this function also presents a heightened 'need for confidentiality to ensure that presidential decision-making is of the highest caliber,' . . . which the privilege is designed to provide."
  
  Similarly, the court finds that "the agents' interview notes ["used to compose the privileged FD-302s"] contain information reflected in the FD-302s in the SBI File, which were 'solicited and received' by the White House Counsel's Office, and, as such, are . . . protected."  The court explains that "the presidential communications privilege 'extends to internal agency documents that memorialize privileged communications between the agency and President or immediate White House advisers.'"
  
  In response to plaintiffs' argument "that the SBI was instigated at the request of the Senate Judiciary Committee," the court finds that "even if activity on the Senate Judiciary Committee prompted the SBI, the White House Counsel's Office, not the Committee, actually 'solicited' the SBI in connection with the nomination of a Supreme Court Justice . . . and thus this request was made in the service of a nondelegable presidential duty."  Further, in response to plaintiffs' specific "counter that 'the mere fact that the President issued the order to the FBI to conduct the investigation . . . does not mean that he did so for the purpose of presidential decision-making, which is the relevant question,'" the court finds that "[e]ven if a court were equipped to test the motivations for a specific presidential action in a dynamic political context, doing so would turn the whole point of the presidential communications privilege on its head by undermining the President's ability to 'make decisions confidentially.'"  In response to plaintiffs' second argument, the court finds that "the President's statements publicly touting his nominee and even eschewing the need for the SBI do not undermine application of the presidential communications privilege" because "[t]hese statements did not preclude the possibility that the results of the SBI might or could have altered his view."
  
  Similarly, in response to plaintiffs' argument, the court finds that "personal invocation by the President of the presidential communications privilege is not required in the context of FOIA's Exemption 5."  The court agrees with "other Judges on this Court who have consistently rejected the argument that personal invocation is required to apply the presidential communications privilege in the context of Exemption 5."  The court explains that this "'view finds no warrant in the statute, the legislative history, or legal precedent, and would chain the President to a stack of documents for review at the whim of a FOIA requestor.'"
   
• Exemption 5, Presidential Communications Privilege & Waiver and Discretionary Disclosure, Waiver:  The court holds that "the Senate Judiciary Committee's disclosure of an executive summary did not constitute waiver of any extant Executive Branch privilege under FOIA's Exemption 5."  Regarding plaintiffs' argument that disclosure to Congress constituted waiver of the privilege, the court finds that "the [D.C.] Circuit emphasized the FOIA provision providing that '[t]his section is not authority to withhold information from Congress.'"  "'If "disclosure of information to Congress [were] disclosure to the whole world," . . . it would be "inconsistent with the obvious purpose of the Congress [in 552(d)] to carve out for itself a special right of access to privileged information," and would "effectively transform section [552(d)] into a congressional declassification scheme, a result supported neither by the legislative history of the Act, nor by general legal principles or common sense."'"  "This logic applies with equal force to material withheld under the presidential communications privilege."  Second, regarding plaintiffs' argument that, in the alternative, the disclosure by Congress constituted waiver of the privilege, the court holds that "plaintiffs fail to meet [their] burden for two reasons."  'First, a simple math comparison between the 1.5-page executive summary released by the Senate Judiciary Committee and the 527-page SBI File significantly undermines any suggestion that the summary is 'as specific as' or 'match[es]' the File."  "Second, disclosure by Congress alone cannot result in a waiver of privilege because 'we do not deem "official" a disclosure made by someone other than the agency from which the information is being sought.'"