Competitive Enter. Inst. v. Dep't of State, No. 17-02032, 2020 WL 5530207 (D.D.C. Sept. 15, 2020) (Mehta, J.)

Competitive Enter. Inst. v. Dep't of State, No. 17-02032, 2020 WL 5530207 (D.D.C. Sept. 15, 2020) (Mehta, J.)

Re:  Request for records concerning handling of 2016 Paris Climate Agreement

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

• Exemption 5, Deliberative Process Privilege:  "[T]he court finds the Department properly withheld the Legal Memo pursuant to Exemption 5 and the deliberative process privilege."  The court finds that "[t]he Legal Memo withheld by the Department is both predecisional and deliberative."  "As explained in the Department's affidavit, and as required under Department policy, the Legal Memo was drafted to accompany a document that sought the Secretary's decision on the Paris Agreement, and is made up of 'subordinate officials' views on legal questions raised concerning the [Agreement].'"
   
  The court relates that "Plaintiff attempts to equate the Legal Memo to a 'final opinion of the agency on this matter,' . . . but [the court finds that] that contention is unconvincing because [the Department's Office of the Legal Advisor ("OLA")] 'has no authority to make final decisions concerning United States policy' on treaties . . . ."  "Therefore, even if the Legal Memo were a 'final opinion' of OLA as Plaintiff contends, it does not follow that the Legal Memo is a final decision of the Department of State."
  
  Regarding plaintiff's argument that the memorandum being withheld constitutes the working law of the agency, the court finds that "the Legal Memo is not a statement of the law the Department was 'actually applying,' developed by a superior department to be implemented by a subordinate department."  Additionally, "[the agency was] not bound by the Legal Memo's recommendation."
  
  Regarding plaintiff's argument "that the Secretary's signature on [an] . . . action memo [to which the at issue memorandum was attached] somehow transformed the attached Legal Memo into working law," the court finds that "'the Supreme Court has held that the deliberative-process privilege protects recommendations that are approved or disapproved without explanation.'"
   
• Waiver and Discretionary Disclosure, Waiver:  "The court . . . concludes that Plaintiff has not met its 'burden of identifying specific information that is already in the public domain due to official disclosure.'"  Regarding plaintiff's contention "that . . . a document appearing to be the Legal Memo has been posted on the internet," the court relates that "[a]ccording to [defendant], the Department 'does not confirm or deny the authenticity of this purportedly leaked document,' . . . nor has it 'authorized the release of the authentic memorandum or waived the Department's privileges over its content' . . . ."  "Plaintiff offers no evidence to contradict this representation."  "Moreover, the posted document bears no indicia of an official disclosure."  "The posted record is marked 'attorney-client privileged' on each page but otherwise bears no markings of an official government record, or any other sourcing to an official government disclosure."  "Its mere public availability is not enough."