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
On September 22, 2010, President Obama signed the PPD-6, a presidential directive.
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.)
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
"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."
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)). The privilege protects those "documents or other materials that reflect presidential decisionmaking and deliberations and that the President believes should remain confidential," and, once the privilege is invoked, the documents become presumptively privileged. In re Sealed Case, 121 F.3d at 744. Further, unlike the deliberative process privilege, which is also encompassed under Exemption 5, the presidential communications privilege "applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones." Id. at 745.
In addition to protecting communications that "directly involve" the President, see Loving, 550 F.3d at 39 (quoting Judicial Watch, 365 F.3d at 114), the privilege also protects
In re Sealed Case, 121 F.3d at 752 (emphasis added). Communications authored or solicited and received by these advisers are protected because they "are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his advisers." Id.
The scope of the privilege is to be "construed as narrowly as is consistent with ensuring that the confidentiality of the President's decision-making process is adequately protected." Judicial Watch, 365 F.3d at 1116 (quoting In re Sealed Case, 121 F.3d at 752); see also Abramson, 456 U.S. at 630 ("FOIA exemptions are to be narrowly construed."). As such, it "only applies to communications that ... advisers and their staff author or solicit and receive in the course of performing their function of advising the President on official government matters" and does not generally "extend to staff outside the White House in executive branch agencies." In re Sealed Case, 121 F.3d at 752; see also Judicial Watch, 365 F.3d at 1116. "[T]here is, in effect, a hierarchy of presidential advisers such that the demands of the privilege become more attenuated the further away the advisers are from the President operationally." Judicial Watch, 365 F.3d at 1115.
As noted, no case has addressed this privilege in terms of a presidential directive. Rather, courts have considered the application of the presidential communications privilege to audio recordings of confidential communications between the President and his advisers, see, e.g., Nixon v. Adm'r of Gen. Servs. ("GSA"), 433 U.S. 425, 446-50, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977) (protected even for past presidents); Nixon, 418 U.S. at 708-13, 94 S.Ct. 3090 (protected by qualified privilege from criminal subpoenas); deliberative documents created by White House advisers, but never viewed by the President, see In re Sealed Case, 121 F.3d at 752 (protected to the extent "made ... in the course of preparing advice for the president"); agency documents created to advise, but never reaching, the Office of the President, see Judicial Watch, 365 F.3d at 1114-15 (not protected); and advisory documents from an agency that were not solicited, but were received, by the President, see Loving, 550 F.3d 39-40 (protected). But never before has a court had to consider whether the privilege protects from disclosure under FOIA a final, non-classified, presidential directive that has been distributed widely within the Executive Branch and serves as guidance for several policy-making bodies, including twenty-two Executive
As such, this case "calls upon the court to strike a balance between the twin values of transparency and accountability of the executive branch on the one hand, and on the other hand, protection of the confidentiality of Presidential decision-making and the President's ability to obtain candid, informed advice." Judicial Watch, 365 F.3d at 1112. In so doing, the Court must bear in mind that "[t]he very reason that presidential communications deserve special protection, namely the President's unique powers and profound responsibilities, is simultaneously the very reason why securing as much public knowledge of presidential actions as is consistent with the needs of governing is of paramount importance." In re Sealed Case, 121 F.3d at 749.
Plaintiff argues that the PPD-6 is not protected by the presidential communications privilege because it was not made in the course of making decisions, but instead is the final decision itself — one that has been widely circulated and implemented within the Executive Branch. (Pl.'s Mot. at 9-10.) The Government takes the position that the PPD-6 is protected by the privilege because, regardless of how widely the document has been distributed within the Executive Branch, it originated with the President, and relying on In re Sealed, the privilege protects the President's final decisions. (Gov't Reply at 10-11.)
It is true that the D.C. Circuit has, in dictum, referred to the presidential communications privilege as protecting not only deliberative documents, but also "final and post-decisional materials." In re Sealed Case, 121 F.3d at 745; see also Loving, 550 F.3d at 37; Judicial Watch, 365 F.3d at 1114. But the D.C. Circuit has never actually applied the presidential communications privilege to a "final" presidential directive or decision.
As described above, the presidential communications privilege generally is "premised on the needs of present and future Presidents to maintain the confidentiality of communications with their advisors in order to encourage the candid advice necessary for effective decisionmaking." Dellums v. Powell, 561 F.2d 242, 246 (D.C.Cir.1977); see also Loving, 550 F.3d at 37; In re Sealed Case, 121 F.3d at 750. Confidentiality is the touchstone of the privilege, for "[c]onfidentiality is what ensures the expression of `candid, objective, and even blunt or harsh opinions' and
The rationale of In re Sealed Case is instructive. In ruling in dictum that the privilege can apply to "final" documents, the Court of Appeals rested on the fact that the privilege also protects the President's ability to "operate effectively." In re Sealed Case, 121 F.3d at 745. However, this broad purpose is not implicated in this case. First, this is not a case involving "a quintessential and nondelegable Presidential power" — such as appointment and removal of Executive Branch officials, see In re Sealed Case, 121 F.3d at 752-53 — where separation of powers concerns are at their highest. Instead, the development and enactment of foreign development policy can be and is "exercised or performed without the President's direct involvement." See id. at 753. Second, having reviewed the PPD-6, the Court finds, contrary to the assertions in the Sanborn Declaration (Sandborn Decl. ¶ 10), that the forward-looking PPD-6 is not "revelatory of the President's deliberations" such that its public disclosure would undermine future decision-making. Cf. In re Sealed Case, 121 F.3d at 745-46. Finally, the "President's ability to communicate his [final] decisions privately," id. at 746, is not implicated, since the PPD-6 was distributed far beyond the President's close advisers and its substance was widely discussed by the President in the media. In short, there is simply no indication from In re Sealed Case that the D.C. Circuit specifically considered, no less endorsed, the extension of the presidential communications privilege to presidential communications distributed and implemented widely throughout the Executive Branch.
Moreover, here there is no evidence that the PPD-6 was intended to be, or has been treated as, a confidential presidential communication.
Second, from its issuance, the President has publicly touted the directive, referring to it as a "chang[e] [in] the way [the United States] do[es] business" with regard to foreign aid and development (Remarks at C2) and informing the public in no uncertain terms that the document "provides clear policy guidance to all U.S. Government agencies" regarding the trajectory of U.S. development policy.
Third, although the original recipients of the PPD-6 were instructed not to distribute the directive beyond their departments or agencies without approval of the NSS (Sanborn Decl. ¶ 6), they were free to distribute the directive within their departments or agencies based on an undefined "need-to-know" basis. (Id. ¶ 7.) Of course, permitting distribution of a document on a "need-to-know" basis does not automatically undermine the confidentiality of a document. See, e.g., Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 863 (D.C.Cir.1980) (concluding distribution on "need-to-know" basis does not undermine attorney-client privilege). But "need to know" must be defined, and adhered to, in a context-specific manner for a given privilege to apply. See id. (limiting "need to know" in the attorney-client privilege context to those "who are authorized to speak or act for the organization in relation to the subject matter of the communication" (internal quotation marks omitted)). And, the government has not, even after plaintiff raised the issue (Pl.'s Mot. at 16-17), defined what "need to know" means as to an extensive intra-agency distribution of the PPD-6.
This failure on the part of the government is important. As in the attorney-client privilege context, the scope of the "need to know" is relevant to the presidential communications privilege, where, for the privilege to apply, the reason a given recipient "needs to know" must implicate the purposes that animate the privilege: the promotion of candor and effective presidential decision-making. As noted by the D.C. Circuit, it is a party's "operational proximity to the President" that matters in determining whether "[t]he President's confidentiality interest" is implicated. See Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 910 (D.C.Cir.1993). Thus, it is axiomatic that the privilege's purpose of promoting candor and confidentiality between the President and his closest advisers becomes more attenuated, and the public's interest in transparency and accountability more heightened, the more extensively a presidential communication is distributed. Cf. In re Sealed Case, 121 F.3d at 749-50 (endorsing only "limited extension of the privilege" "down the chain of command" to the President's "immediate advisors"); id. at 752 ("[N]ot every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, the privilege should not extend to staff outside the White House in executive branch agencies.").
In Judicial Watch, the D.C. Circuit grappled with an analogous issue and ultimately held that the presidential communications privilege attaches to a document
Simply put, the purposes of the privilege are not furthered by protecting from public disclosure presidential directives distributed beyond the President's closest advisers for non-advisory purposes. Nor does invocation of an amorphous "need to know" cure the problem where there is no claim of an advisory role between the document-recipient and the President. Thus, since the government has not satisfied its burden to demonstrate that the document was intended to be confidential for the purpose of the presidential communications privilege, the Court cannot agree that Exemption 5 applies to the PPD-6.
Even more troubling for the government, however, is the evidence that the PPD-6 has in fact been distributed widely within the Executive Branch for non-advisory purposes. Indeed, the government does not challenge plaintiff's assertion that the PPD-6 has been, at least with regard to the QDDR, distributed to lower-level staff members within the Executive Branch for the purpose of implementation. (See QDDR at G20.) Instead, the government doubles down and asserts that as a matter of law "widespread dissemination of the PPD-6 within the Executive Branch" does not undermine the confidentiality of the document for the purpose of the presidential communications privilege. (Gov't Reply at 10.) Rather, the government takes the position that the only relevant question is "whether the document at issue originated with (or at the request of)
This position is flawed. First, the government seems to base its argument on the fundamental and oft-repeated principle that communications that "`directly involve" the President are covered by the privilege. See Loving, 550 F.3d at 39 (quoting Judicial Watch, 365 F.3d at 1114). But no court has suggested that the mere fact that a President's direct involvement in a communication, either as an author or recipient, renders it automatically protected. Instead, the privilege has always been limited to certain types of communications directly involving the President, specifically those "communications `in performance of (a President's) responsibilities' `of his office' and made `in the process of shaping policies and making decisions." GSA, 433 U.S. at 449, 97 S.Ct. 2777 (quoting Nixon, 418 U.S. at 711, 713, & 708, 94 S.Ct. 3090).
Second, the primary case cited by the government, Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice, 658 F.Supp.2d 217 (D.D.C.2009), is distinguishable on several grounds. In that case, the Court held that then-Vice President Cheney did not waive the presidential communications privilege for certain information by disclosing that information to a single Special Counsel appointed to investigate the leak of a CIA operative's identity. Id. at 237-38. That case simply did not consider, and does not speak to, the specific issue raised here — the effect of widespread distribution throughout the Executive Branch of a final, non-classified presidential communication that carries the force of law.
Finally, the government relies on a negative inference: because plaintiff "cannot identify a single case suggesting that the applicability of the presidential communications privilege turns on the scope of the document's distribution within the Executive Branch," it must be the case that the privilege does not so turn. (Gov't Reply at 11.) This same argument can be levied against the government, since there is no case squarely supporting the position that a presidential communication originating with the President may be distributed widely beyond the President's inner circle without affecting the document's confidentiality.
It is also worth emphasizing the unbounded nature of the government's position. In the government's view, it can shield from disclosure under FOIA any presidential communication, even those — like the PPD-6 — that carry the force of law, simply because the communication originated with the President. That the communication might be applied by low-level agency staff members in their day-to-day activities, which affect millions of American citizens, would not be relevant to deciding whether the directive is exempt from disclosure under FOIA. Rather, under the government's approach, the inquiry would begin and end with whether the President made the initial decision.
Moreover, while it is certainly possible that some low-level Executive Branch staff members act in an advisory role (or facilitate their supervisor's advisory role) to the President (although there is no evidence that this is the case here), cf. Judicial Watch, 365 F.3d at 1118, it is not likely that each and every staff member who receives a widely distributed presidential directive will act solely in an advisory role. This is particularly so in cases, such as this one, where the directive carries the force of law and is intended to provide guidance for Executive Branch policy making. Thus, considering the widespread dissemination of the PPD-6 within the Executive Branch, the Court concludes that the government has failed to demonstrate that the PPD-6 is treated as confidential for the purposes of the presidential communications privilege.
The government also argues that, independent of the specific purposes underlying the presidential communications privilege, "it is difficult to imagine how the President could govern effectively if the substance of the President's orders could not be communicated to the administration officials and their subordinates charged with carrying them out." (Gov't Reply at 11.) In so arguing, the government attempts to sidestep the real question before the Court. The question is not whether policy decisions made by the President, as reflected in his directives, can be communicated to his administration officials and then down the chain of command to those rank-and-file staffers charged with carrying them out. Clearly, the President and his administration officials can do that. The question is when, if at all, the government must then disclose those orders under FOIA.
As to that question, the government appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight (see Gov't Reply at 11) — to engage in what is in effect governance by "secret law."
For these reasons, the Court rejects the government's unwarranted expansion of the presidential communications privilege at the expense of the public's interest in disclosure under FOIA and therefore concludes that the PPD-6 is not exempt from disclosure under Exemption 5 of FOIA.
Accordingly, the government's motion for summary judgment [Dkt. No. 11] will be
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.)
Here, the government does not argue that the PPD-6 is not an "agency record," so this Court need not decide if it will follow Judge Howell's rationale. Moreover, the Court notes that unlike the directive at issue here, the directive in EPIC was partially classified.
Id. That the Court of Appeals made these observations in the context of "dual hat" presidential advisers who work within the White House, id. only implies that the distinction is all the more relevant for members of the Executive Branch who work outside of the White House for whom the privilege does not generally apply.
