W. Values Project v. DOJ, No. 17-1671, 2018 WL 3459921 (D.D.C. July 18, 2018) (Cooper, J.)

W. Values Project v. DOJ, No. 17-1671, 2018 WL 3459921 (D.D.C. July 18, 2018) (Cooper, J.)

Re:  Request for records about OLC's prior legal opinions regarding the scope of the President's power to establish National Monuments—specifically, whether there had been any efforts to revisit, revoke, or amend those opinions in the first year of Trump's presidency

Disposition:  Granting in part and denying in part plaintiff's motion for summary judgment; granting in part and denying in part defendant's motion for summary judgment

• Exemption 5, Attorney-Client Privilege & Glomar:  "The Antiquities Act of 1906 gives presidents the power to designate landmarks located on federal land as 'national monuments.'"  "Early into his tenure, President Trump made clear that he believed some of his recent predecessors had overreached their statutory authority to make designations."  "He ordered his Interior Department to review all monuments established after 1996 and has since dramatically reduced the size of two such monuments."  "Plaintiff filed two requests . . . [seeking] records about the Department's prior legal opinions regarding the scope of that power—specifically, whether there had been any efforts to revisit, revoke, or amend those opinions in the first year of Trump's presidency."  "[DOJ] issued a 'Glomar response'—[refusing] to confirm or deny the existence of any records."  The court finds that, "[g]enerally, an agency responding to a FOIA request 'must acknowledge the existence of information responsive to [that] request and provide specific, non-conclusory justifications for withholding that information' under one of FOIA's exemptions."  The court finds that "[s]o-called 'Glomar responses' . . . 'are an exception to [that] general rule.'"  "Here, the Department contends that the existence or nonexistence of records sought by plaintiff falls within Exemption 5 . . . invoke[ing] three of those privileges here:  the attorney-client privilege, the presidential communications privilege, and the deliberative process privilege."  The court finds that, "[t]he attorney-client privilege protects communications between an attorney and his client that relate to legal advice sought by the client and are 'based on confidential information provided by the client.'"  "Here, however, OLC wants to withhold not only the content of any legal advice it may have provided, but also the very fact of whether it possesses records responsive to plaintiff's requests."  "That blanket withholding is therefore justified only if confirming the existence or nonexistence of [responsive] records . . .  would in effect unveil a communication between OLC and a particular agency client related to legal advice sought by that client and based on confidential information it provided to OLC."  The court finds that here"[i]t would not."  "The nonexistence of a responsive record would reveal no such communication:  the fact that a client never requested advice about an issue does not expose anything remotely approaching a protected attorney-client communication."
   
• Exemption 5, Presidential Communications Privilege & Glomar:  The court finds that, "[Glomar also cannot protect] the existence or nonexistence of records [that] implicate the presidential communications privilege."  "That privilege covers materials only if they were 'authored or solicited and received by those members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.'"  "There is no reason to believe that the very fact of whether responsive records exist would reveal the content of a communication made to or from an immediate White House staffer."  "At most, that fact might reveal something about the executive branch's view of presidential power under the Antiquities Act, or about how the President arrived at any decisions related to national monuments . . . [b]ut the privilege is not so broad as to cover information that merely sheds light on presidential decision-making."
   
• Exemption 5, Deliberative Process Privilege & Glomar:  Finally, the court finds that, "the Department cannot rely on the deliberative process privilege to justify its Glomar response."  "That privilege protects 'documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'"  "The existence of a responsive record here would show only that OLC engaged in some deliberation, full stop."  "It would not necessarily reveal the content any deliberations—any details about the agency's 'give-and-take' – surrounding a decision of whether to rescind a prior opinion."  
   
• Litigation Considerations, Adequacy of Search:  The court finds that, [t]o establish that its search for records was adequate under FOIA, the agency 'must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'"  "In seeking to establish the adequacy of its searches, OLC has filed two declarations . . . [that] show 'beyond material doubt that [OLC's] search was reasonably calculated to uncover all relevant documents.'"