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Case 1:19-cv-03562-ABJ Document 23 Filed 02/10/20 Page 1 of 48

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
____________________________________
)
THE NEW YORK TIMES COMPANY and )
CHARLIE SAVAGE, )
)
Plaintiffs, )
)
v. ) Case No. 19-cv-03562 (ABJ)
)
OFFICE OF MANAGEMENT AND )
BUDGET )
)
Defendant. )
____________________________________ )

DEFENDANT’S CROSS-MOTION FOR SUMMARY


JUDGMENT AND OPPOSITION TO PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7, Defendant Office of

Management and Budget (“OMB”) opposes plaintiffs The New York Times and Charlie Savage

(“the Times”) motion for summary judgment, ECF No. 22, and cross moves for summary

judgment. The reasons for this opposition and cross-motion are set forth in the attached

memorandum of points and authorities and the declaration of OMB Deputy General Counsel

Heather V. Walsh. A proposed order is also attached.

February 10, 2020 Respectfully submitted,

JOSEPH H. HUNT
Assistant Attorney General
Civil Division

ELIZABETH J. SHAPIRO
Deputy Branch Director

/s/ Rebecca Cutri-Kohart


Rebecca Cutri-Kohart
D.C. Bar No. 1049030
Trial Attorney
Case 1:19-cv-03562-ABJ Document 23 Filed 02/10/20 Page 2 of 48

U.S. Department of Justice


Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, D.C. 20005
(202) 514-0265 (office)
rebecca.cutri-kohart@usdoj.gov

Attorneys for Defendant


Case 1:19-cv-03562-ABJ Document 23 Filed 02/10/20 Page 3 of 48

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
____________________________________
)
THE NEW YORK TIMES COMPANY and )
CHARLIE SAVAGE, )
)
Plaintiffs, )
)
v. ) Case No. 19-cv-03562 (ABJ)
)
OFFICE OF MANAGEMENT AND )
BUDGET )
)
Defendant. )
____________________________________ )

DEFENDANT’S STATEMENT OF POINTS AND


AUTHORITIES IN SUPPORT OF ITS CROSS-MOTION
FOR SUMMARY JUDGMENT AND IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Case 1:19-cv-03562-ABJ Document 23 Filed 02/10/20 Page 4 of 48

TABLE OF CONTENTS

INTRODUCTION ...................................................................................................................... 1
BACKGROUND ........................................................................................................................ 2
I. Plaintiffs’ FOIA Request .................................................................................................... 2
II. The Plaintiffs’ Complaint and Motion for Preliminary Injunction ..................................... 3
III. OMB’s Response to Plaintiffs’ FOIA Request ................................................................... 4
LEGAL STANDARD................................................................................................................. 5
ARGUMENT .............................................................................................................................. 6
I. OMB has fulfilled its obligation under the FOIA to conduct an adequate search for
responsive records............................................................................................................... 7
II. OMB properly withheld records under the FOIA’s exemptions. ....................................... 8
A. OMB properly withheld the records in full as presidential communications under FOIA
Exemption 5. .................................................................................................................... 9
1. Robert Blair’s emails are protected under the presidential
communications privilege........................................................................................... 11
2. The communications were part of Blair’s formulation of advice to the President. .... 13
3. OMB properly withheld the records in their entirety because protecting these
communications is necessary to protect frank and candid communication................ 16
B. OMB properly withheld deliberative communications under FOIA Exemption 5. ....... 17
1. The records contain pre-decisional and deliberative information .............................. 19
2. Disclosure of the information would discourage frank discussion within the
government ................................................................................................................. 21
III. Exemption 5 is neither overcome nor waived................................................................... 24
A. The government misconduct exception neither applies in FOIA cases nor vitiates
OMB’s assertion of Exemption 5. ................................................................................. 25
B. OMB has not waived the presidential communications and deliberative process
privileges. ....................................................................................................................... 32
IV. In camera review is neither necessary nor appropriate. ................................................... 35
CONCLUSION ......................................................................................................................... 36

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TABLE OF AUTHORITIES

Cases

Access Reports v. Dep’t of Justice,


926 F.2d 1192 (D.C. Cir. 1991) .................................................................................... 18, 20, 22

ACLU v. CIA,
109 F. Supp. 3d 220 (D.D.C. 2015) .......................................................................................... 33

ACLU v. U.S. Dep’t of Def.,


628 F.3d 612 (D.C. Cir. 2011) .............................................................................................. 8, 35

Afshar v. Dep’t of State,


702 F.2d 1125 (D.C. Cir. 1983) ................................................................................................ 33

Aguiar v. DEA,
865 F.3d 730 (D.C. Cir. 2017) ................................................................................................. 5-6

Army Times Pub. Co. v. Dep’t of the Air Force,


998 F.2d 1067 (D.C. Cir. 1993) ................................................................................................ 24

Assassination Archives & Research Ctr. v. CIA,


334 F.3d 55 (D.C. Cir. 2003) .............................................................................................. 33, 34

August v. FBI,
328 F.3d 697 (D.C. Cir. 2003) .................................................................................................... 8

Chem. Mfrs. Ass’n v. Consumer Prod. Safety Comm’n,


600 F. Supp. 114 (D.D.C. 1984) ............................................................................................... 18

Citizens for Responsibility and Ethics in Wash. v. U.S. Dep’t of Homeland Sec.,
514 F. Supp. 2d 36 (D.D.C. 2007) ............................................................................................ 22

Coastal States Gas Corp. v. Dep’t of Energy,


617 F.2d 854 (D.C. Cir. 1980) .................................................................................................. 19

Comm. on Oversight & Gov't Reform, United States House of Representatives v. Lynch,
156 F. Supp. 3d 101 (D.D.C. 2016) .......................................................................................... 10

Ctr. for Auto Safety v. EPA,


731 F.2d 16 (D.C. Cir. 1984) .................................................................................................... 35

Ctr. for Biological Diversity v. EPA,


369 F. Supp. 3d 128 (D.D.C. 2019) .......................................................................................... 21

i
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Davis v. U.S. Dep’t of Justice,


968 F.2d 1276 (D.C. Cir. 1992) ................................................................................................ 34

Defenders of Wildlife v. U.S. Border Patrol,


623 F. Supp. 2d 83 (D.D.C. 2009) .............................................................................................. 5

Dep’t of Interior v. Klamath Water Users Protective Ass’n,


532 U.S. 1 (2001) ...................................................................................................................... 23

Edmonds v. FBI,
272 F. Supp. 2d 35 (D.D.C. 2003) ............................................................................................ 33

Elec. Frontier Found. v. U.S. Dep’t of Justice,


890 F. Supp. 2d 35 (D.D.C. 2012) ...................................................................................... 19, 20

F.T.C. v. Grolier Inc.,


462 U.S. 19 (1983) .................................................................................................................... 25

Fitzgibbon v. CIA,
911 F.2d 755 (D.C. Cir. 1990) .................................................................................................. 33

Formaldehyde Inst. v. Dep’t of Health and Human Servs.,


889 F.2d 1118 (D.C. Cir. 1989) ............................................................................................ 9, 20

Frugone v. CIA,
169 F.3d 772 (D.C. Cir. 1999) .................................................................................................. 34

Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys.,
762 F. Supp. 2d 123 (D.D.C. 2011) .......................................................................................... 19

Hall & Assocs. v. U.S. Envtl. Prot. Agency,


14 F. Supp. 3d 1 (D.D.C. 2014) ................................................................................................ 28

Hayden v. Nat’l Sec. Agency,


608 F.2d 1381 (D.C. Cir. 1979) .......................................................................................... 35, 36

Hinckley v. United States,


140 F.3d 277 (D.C. Cir. 1998) .................................................................................................. 32

ICM Registry, LLC v. U.S. Dep’t of Commerce,


538 F. Supp. 2d 130 (D.D.C. 2008) .......................................................................................... 31

In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) ........................................................................................... passim

ii
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Iturralde v. Comptroller of Currency,


315 F.3d 311 (D.C. Cir. 2003) .................................................................................................... 7

John Doe Agency v. John Doe Corp.,


493 U.S. 146 (1989) .................................................................................................................... 8

Jordan v. U.S. Dep’t of Justice,


591 F.2d 753 (D.C. Cir. 1978) .................................................................................................. 18

Judicial Watch of Fla., Inc. v. U.S. Dep’t of Justice,


102 F. Supp. 2d 6 (D.D.C. 2000) ........................................................................................ 27, 29

Judicial Watch v. Dep’t of Justice,


365 F.3d 1108 (D.C. Cir. 2004) ......................................................................................... passim

Judicial Watch v. Export-Import Bank,


108 F. Supp. 2d 19 (D.D.C. 2000) ........................................................................................... 20

Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau,


60 F. Supp. 3d 1 (D.D.C. 2014) ................................................................................................ 21

Judicial Watch, Inc. v. Food and Drug Admin.,


449 F.3d 141 (D.C. Cir. 2006) .............................................................................................. 9, 19

Judicial Watch, Inc. v. U.S. Dep’t of Commerce,


No. 15-cv-2088-CRC, 2017 WL 3822733 (D.D.C. Aug. 21, 2017) ......................................... 26

Judicial Watch, Inc. v. U.S. Dep’t. of Def.,


913 F.3d 1106 (D.C. Cir. 2019) ................................................................................................ 36

Judicial Watch, Inc. v. U.S. Dep’t of Def.,


963 F. Supp. 2d 6 (D.D.C. 2013) .............................................................................................. 34

Judicial Watch, Inc. v. U.S. Dep’t of State,


241 F. Supp. 3d 174 (D.D.C.) ................................................................................................... 26

Judicial Watch, Inc. v. U.S. Dep’t of State,


285 F. Supp. 3d 249 (D.D.C. 2018) .................................................................................... 26, 29

Judicial Watch, Inc. v. United States Dep’t of State,


235 F. Supp. 3d 310 (D.D.C. 2017) .................................................................................... 28, 30

Lardner v. U.S. Dep’t of Justice,


No. CIV.A.03-0180(JDB), 2005 WL 758267 (D.D.C. Mar. 31, 2005) .................................... 28

iii
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Latif v. Obama,
677 F.3d 1175 (D.C. Cir. 2012) ................................................................................................ 29

Loving v. Dep’t of Def.,


550 F.3d 32 (D.C. Cir. 2008) ................................................................................................ 9, 10

McKinley v. Bd. of Governors of the Fed. Reserve Sys.,


849 F. Supp. 2d 47 (D.D.C. 2012) ............................................................................................ 34

Military Audit Project v. Casey,


656 F.2d 724 (D.C. Cir. 1981) .................................................................................................... 6

Miller v. U.S. Dep’t of Justice,


872 F. Supp. 2d 12 (D.D.C. 2012) .............................................................................................. 6

Nat’l Whistleblower Ctr. v. Dep’t of Health and Human Serv.,


903 F. Supp. 2d. 59 (D.D.C. 2012) ............................................................................... 27, 28, 31

Neighborhood Assistance Corp. of Am. v. U.S. Dep't of Hous. & Urban Dev.,
19 F. Supp. 3d 1 (D.D.C. 2013) .................................................................................... 26, 28, 31

NLRB v. Sears, Roebuck & Co.,


421 U.S. 132 (1975) ...................................................................................................... 18, 22, 26

Oglesby v. U.S. Dep’t of Army,


920 F.2d 57 (D.C. Cir. 1990) .................................................................................................. 7, 8

Protect Democracy Project, Inc. v. U.S. Dep’t of Def.,


320 F. Supp. 3d 162 (D.D.C. 2018) .................................................................................... 13, 14

Public Citizen, Inc. v. U.S. Dep’t of Education,


388 F. Supp. 3d 29 (D.D.C. 2019) ............................................................................................ 21

Reep v. U.S. Dep’t of Justice,


302 F. Supp. 3d 174 (D.D.C. 2018) ............................................................................................ 7

Rockwell Int’l Corp. v. U.S. Dep’t of Justice,


235 F.3d 598 (D.C. Cir. 2001) .................................................................................................... 9

Russell v. Dep’t of the Air Force,


682 F.2d 1045 (D.C. Cir. 1982) ................................................................................................ 18

Schiller v. N.L.R.B.,
964 F.2d 1205 (D.C. Cir. 1992) ................................................................................................ 35

iv
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Sussman v. U.S. Marshals Serv.,


494 F.3d 1106 (D.C. Cir. 2007) ................................................................................................ 29

Thompson v. U.S. Dep’t of Justice, Criminal Div.,


146 F. Supp. 3d 72 (D.D.C. 2015) ............................................................................................ 31

Truitt v. Dep’t of State,


897 F.2d 540 (D.C. Cir. 1990) .................................................................................................... 7

U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press,


489 U.S. 749 (1989) ............................................................................................................ 25, 27

United States v. Nixon,


418 U.S. 683 (1974) .............................................................................................................. 9, 10

Vaughn v. Rosen,
484 F.2d 820 (D.C. Cir. 1973) .................................................................................................... 9

Weisberg v. U.S. Dep’t of Justice,


627 F.2d 365 (D.C. Cir. 1980) .................................................................................................... 6

Weisberg v. U.S. Dep’t of Justice,


705 F.2d 1344 (D.C. Cir. 1983) .................................................................................................. 7

Wolf v. CIA,
473 F.3d 370 (D.C. Cir. 2007) .............................................................................................. 9, 34

Wolfe v. U.S. Dep’t of Health and Human Servs.,


839 F.2d 768 (D.C. Cir. 1988) ............................................................................................ 18, 22

Worldnetdaily.com, Inc. v. U.S. Dep’t of Justice,


215 F. Supp. 3d 81 (D.D.C. 2016) ............................................................................................ 24

Wright v. Admin. for Children & Families,


No. 15-218, 2016 WL 5922293 (D.D.C. Oct. 11, 2016) .......................................................... 26

Statutes

5 U.S.C. § 552(a)(8)...................................................................................................................... 22

5 U.S.C. § 552(b) ............................................................................................................................ 8

5 U.S.C. § 552(b)(5) ....................................................................................................................... 9

31 U.S.C. §§ 1512 & 1513............................................................................................................ 24

Pub. L. No. 104-231, 110 Stat. 3048 (Oct. 2, 1996) ....................................................................... 7

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Pub. L. No. 114-185, 130 Stat. 538 (June 30, 2016) .................................................................... 22

Legislative Materials

H.R. Rep. No. 114-391 (2016) ................................................................................................ 22, 23

S. Rep. No. 114-4 (2015) ........................................................................................................ 22, 23

Regulations

74 Fed. Reg. 4683 (Jan. 21, 2009) ................................................................................................ 23

Rules

Fed. R. Civ. P. 56(a) ....................................................................................................................... 5

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INTRODUCTION

In this case arising under the Freedom of Information Act (“FOIA”), plaintiffs, the New

York Times Company and Charlie Savage (collectively, “the Times”) challenge whether records

otherwise responsive to its request are exempt from disclosure pursuant to FOIA Exemption 5.

The Times’s FOIA request to the defendant, the Office of Management and Budget (“OMB”),

sought email communications between an Assistant to the President, Robert Blair, and OMB’s

Principal Associate Director of National Security Programs, Michael Duffey. Later, the Times

limited the dispute to only responsive records relating to Ukraine. Following a straightforward

and adequate search, OMB found twenty responsive records. OMB supplemented that search

during the preparation of this motion, and located one additional responsive record. In consultation

with the White House, OMB determined that each of the records contained presidential

communications, and that many of the records contained deliberative communications protected

by FOIA Exemption 5, and limited personal information, protected from disclosure by Exemption

6.

Unlike the deliberative process privilege, the presidential communications privilege

permits an agency to withhold responsive records in full without determining if the record contains

reasonably segregable, releasable information. Because each of the records contained presidential

communications, OMB withheld the documents in their entirety under Exemption 5. Further, the

Times’ attempts to vitiate the presidential communication and deliberative process privileges by

invoking the government misconduct and waiver fail as a matter of fact and law. OMB has

established through testimony from OMB Deputy General Counsel Heather V. Walsh, and an

accompanying Vaughn index, that it performed an adequate search and that there is a logical and

plausible explanation for withholding the documents in question pursuant to the FOIA’s statutory

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exemptions. Thus, the Court should grant summary judgment to OMB and deny the Times’ motion

for summary judgment.

BACKGROUND

I. Plaintiffs’ FOIA Request

On September 26, 2019, defendant Office Management and Budget (“OMB”) received a

Freedom of Information Act (“FOIA”) request from the New York Times Company and Charlie

Savage (collectively “the Times” or “Plaintiffs”). The request sought “all email correspondence

between Michael Duffey and Robert Blair from May 1 [2019] to the present.” See Decl. of Heather

V. Walsh (“Walsh Declaration” or “Walsh Decl.”), Ex. 1. Because some responsive records were

unrelated to the Ukraine matter, the Times agreed to exclude those documents from expedited

processing, and later agreed to dismiss its claims as to those documents without prejudice. See

Joint Status Report (Jan. 10, 2020), ECF No. 20; Stipulation of Dismissal, ECF No. 21.

Robert Blair was an Assistant to the President and Senior Advisor to the White House Chief

of Staff. Walsh Decl. ¶ 23. His official duties as an immediate advisor to the President included

national security issues, such as military assistance to the Ukraine. Id. Blair served in this position

between February 2, 2019 and December 23, 2019. Id. Michael Duffey is OMB’s Principal

Associate Director of National Security Affairs. Id. ¶ 28. Along with his other responsibilities,

Duffey oversees OMB’s National Security and International Affairs Divisions, with a portfolio

that includes security and non-military aid to the Ukraine. Id. ¶ 28. Duffey’s role supports OMB’s

statutory responsibilities with respect to managing appropriated funds. Id. ¶¶ 27-28.

As relevant to this FOIA request, Blair solicited and received information from Duffey

regarding the “nature, scope and amount of assistance provided to the Ukraine by the United States

and other countries,” in order to formulate Blair’s advice to the President. Id. ¶ 21(b). Though the

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two also communicated via telephone and in meetings, at least some of this communication took

place in the emails (and their attachments) that are responsive to the Times’ FOIA request, subject

to the FOIA’s statutory exemptions. Id.

II. The Plaintiffs’ Complaint and Motion for Preliminary Injunction

On November 26, 2019, the Times filed its Complaint, seeking to compel OMB to release

all records responsive to its FOIA request. Compl. ¶¶ 15-18, ECF No. 1. On December 5, 2019,

the Times filed a motion for a preliminary injunction, seeking a Court order for a highly expedited

release of all non-exempt, responsive records by December 17, 2019. Pls.’ Mot. for Prelim. Inj.,

ECF No. 9. Through counsel, OMB reached out to the Times to determine if the parties could

reach an agreement regarding a production schedule that would avoid the need for the Court to

determine whether extraordinary preliminary injunctive relief would be appropriate in this FOIA

case. Walsh Decl. ¶ 8.

On December 9, 2019, the Court held a status conference. The Court ordered OMB to

provide the Times with “the number of documents responsive to plaintiffs FOIA request” by

December 12, and ordered the parties to meet and confer and submit a joint status report regarding

further proceedings the next day. Dec. 9, 2019 Minute Order.

OMB conducted an initial, straightforward search of an archive of Duffey’s emails,

yielding 219 potentially responsive documents, subject to a further manual review. Walsh Decl.

¶ 10. A small agency with a small general counsel’s office (approximately 14 attorneys), OMB’s

resources were strained under the weight of expedited processing and briefing schedules stretching

over the holiday season in multiple Ukraine-related FOIA cases in litigation. See Joint Status

Report (Jan. 10, 2020), ECF No. 20. The parties agreed that OMB would process and release non-

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exempt responsive documents, excluding those unrelated to the Ukraine matter, by January 3,

2020. Joint Status Report (Dec. 13, 2019), ECF No. 18.

The Court accepted the parties’ proposed schedule for production and consolidated

consideration of the Times’ motion for preliminary injunction with the final disposition of the case

on the merits. Dec. 16, 2019 Minute Order. OMB then conducted a manual review of the

documents to assess responsiveness, excluding 187 documents as unrelated to the Ukraine matter

and 12 documents as duplicates. Walsh Decl. ¶ 15. Following this review, OMB determined there

were 20 responsive records, consisting of emails or their attachments, subject to FOIA’s statutory

exemptions. Id. 1

III. OMB’s Response to Plaintiffs’ FOIA Request

In consultation with the White House, OMB determined the records consisted of (1) emails

authored by Blair soliciting information from Duffey to formulate his advice to the President,

acknowledging receipt of information from Duffey, or otherwise providing information based on

his knowledge of presidential deliberations; and (2) emails authored by Michael Duffey providing

information to Blair. Walsh Decl. ¶ 21. Because each record contained information subject to the

presidential communications privilege, OMB determined the records should be withheld in full,

consistent with the purpose of Exemption 5 to protect the confidentiality of presidential

deliberations. Walsh Decl. ¶ 17. Separately, OMB determined that 21 records contain deliberative

communications (Doc. Nos. 1-21) subject to Exemption 5, and fifteen records contained limited

personal information subject to Exemption 6 (Doc. Nos. 1-6, 8, 11-13, 16, 18-21). See Vaughn

Index, Walsh Decl., Ex. 5.

1
During the preparation of this opposition and cross-motion, OMB consulted directly with Mr. Duffey. As a result,
OMB conducted an additional search of Mr. Duffey’s classified email account, and located one additional
document. See Walsh Decl. ¶ 16.

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On January 3, 2020, OMB notified the Times that it would be withholding in full all twenty

responsive records that it originally located under Exemption 5, 2 as containing both presidential

and deliberative communications. 3 Walsh Decl., Ex. 4. OMB mistakenly did not notify the Times

in its letter that some of the records also contained limited personal information consisting of email

addresses and phone numbers subject to FOIA Exemption 6. On February 5, 2020, after OMB

contacted the Times regarding this assertion of Exemption 6, the Times agreed to not challenge

OMB’s assertion of Exemption 6 to withhold email addresses or phone numbers. To the extent

that the Times is interested in the “To/From fields and time stamp” of each record, see Mem. of P.

& A. in Supp. of Pls.’ Mot. for Summ. J. 14, 23, ECF No. 22 (“Pls.’ Mot.”), OMB has provided

this information and the email subject line in the attached Vaughn index. See Vaughn Index. On

January 6, 2020, OMB timely answered the Times’ Complaint. Answer, ECF No. 19.

On January 22, 2020, the Times filed its motion for summary judgment based on the

argument that OMB improperly invoked FOIA Exemption 5 to withhold the otherwise responsive

records. Pls.’ Mot. OMB now cross-moves for summary judgment and opposes the Times’ motion

for summary judgment.

LEGAL STANDARD

“FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). Summary

judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Aguiar

2
The additional record that OMB located on its classified system is also withheld in full pursuant to the presidential
communications and deliberative process privileges. See Vaughn Index, Doc. No. 21.
3
OMB’s letter was described as an “interim” response because the Times had not yet agreed to dismiss its claims
with respect to any e-mails unrelated to the Ukraine matter. See Pls.’ Mot. at 5. If that portion of the request
remained open, the response would not have been final until OMB processed those documents.

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v. DEA, 865 F.3d 730, 734 (D.C. Cir. 2017). “An agency may be entitled to summary judgment

in a FOIA case if it demonstrates that no material facts are in dispute, it has conducted an adequate

search for responsive records, and each responsive record that it has located has either been

produced to the plaintiff or is exempt from disclosure.” Miller v. U.S. Dep’t of Justice, 872 F.

Supp. 2d 12, 18 (D.D.C. 2012) (citing Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 368 (D.C.

Cir. 1980)).

The Court may award summary judgment in a FOIA action solely on the basis of

information provided by the agency through declarations that describe “the documents and the

justifications for nondisclosure with reasonably specific detail,” that “demonstrate that the

information withheld logically falls within the claimed exemption[s],” and that are “not

controverted by either contrary evidence in the record nor by evidence of agency bad faith.”

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (footnote omitted).

ARGUMENT

OMB is entitled to summary judgment because: (1) OMB conducted an adequate search

for responsive records; (2) OMB properly withheld the responsive records in their entirety,

because each record contains presidential communications, exempt from disclosure under

Exemption 5, and separately because some records contain deliberative communications exempt

from disclosure under Exemption 5; and (3) the Times’ argument that either government

misconduct or waiver renders Exemption 5 inapplicable fails as a matter of law and fact. Because

OMB has met its burden under the FOIA to demonstrate that the information in the responsive

records is logically and plausibly exempt from release, it is neither necessary nor appropriate for

the Court to conduct an in camera review of the records in this case.

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I. OMB has fulfilled its obligation under the FOIA to conduct an adequate search for
responsive records.

A search is adequate if it is “reasonably calculated to uncover all relevant documents.”

Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (quoting Weisberg v. U.S. Dep’t of

Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). This requires the agency to make “a good faith

effort to conduct a search for the requested records, using methods which can be reasonably

expected to produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68

(D.C. Cir. 1990), superseded by statute on other grounds by Electronic FOIA Amendments Act of

1996, Pub. L. No. 104-231, 110 Stat. 3048 (Oct. 2, 1996). An agency may fulfill its burden of

demonstrating that it conducted an adequate search by “providing a reasonably detailed affidavit,

setting forth the search terms and the type of search performed, and averring that all files likely to

contain responsive materials . . . were searched.” Reep v. U.S. Dep’t of Justice, 302 F. Supp. 3d

174, 180 (D.D.C. 2018) (alteration in original) (quoting Iturralde v. Comptroller of Currency, 315

F.3d 311, 313–14 (D.C. Cir. 2003)).

The declaration of OMB Deputy General Counsel Heather V. Walsh fully satisfies OMB’s

burden to demonstrate that it conducted a reasonable search. See Walsh Decl. ¶¶ 14-16. OMB

performed a search of an archive of Duffey’s email account to capture any communications in

which Blair appeared in the address fields. Id. ¶ 14. The search was limited to emails dated

between May 1, 2019, pursuant to the Times’ request, and September 26, 2019, the date on which

the request was received. Id. The search yielded 178 potentially responsive emails and 41

attachments associated with those emails. Id. OMB manually reviewed each for responsiveness

and excluded 187 documents unrelated to the Ukraine matter in accordance with the agreement

between the parties. Id. ¶ 15. After also manually removing 12 duplicates, id., twenty responsive

records consisting of forty pages remained. See Vaughn Index, Doc. Nos. 1-20. During the

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preparation of this opposition and cross-motion, to ensure the completeness of its search, OMB

consulted directly with Mr. Duffey. OMB then searched Mr. Duffey’s classified email system and

found one additional responsive record.

This search of the OMB email archive and Mr. Duffey’s classified email system was

reasonably calculated to capture all responsive records, see Oglesby, 920 F.2d at 68, and therefore

more than adequate to meet OMB’s obligations under the FOIA. See Walsh Decl. ¶¶ 14-16. Thus,

OMB is entitled to summary judgment with respect to the adequacy of its search.

II. OMB properly withheld records under the FOIA’s exemptions.

An agency is not required to produce responsive records that fall within specific FOIA

exemptions. See 5 U.S.C. § 552(b). Although the FOIA “strongly favors prompt disclosure, its

nine enumerated exemptions are designed to protect those ‘legitimate governmental and private

interests’ that might be ‘harmed by release of certain types of information.’” August v. FBI, 328

F.3d 697, 699 (D.C. Cir. 2003) (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 152

(1989)). Though the FOIA’s exemptions must “be narrowly construed,” the exemptions also must

be given “meaningful reach and application” in order to achieve the “workable balance” that

Congress has struck “between the right of the public to know and the need of the Government to

keep information in confidence.” John Doe Agency, 493 U.S. at 152 (citations omitted).

An agency that withholds responsive material pursuant to one or more of the nine

exemptions enumerated in the FOIA bears the burden to show that the asserted exemptions apply.

ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). If the agency’s declaration and

Vaughn index describes its rationale for withholding information with “specific detail,

demonstrates that the information withheld logically falls within the claimed exemption, and is not

contradicted by contrary evidence in the record or by evidence of the agency’s bad faith, then

summary judgment is warranted on the basis of the [declaration] alone.” ACLU, 628 F.3d at 619;
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see also Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). “Ultimately, an agency’s justification

for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Wolf v. CIA,

473 F.3d 370, 374-75 (D.C. Cir. 2007) (citation omitted).

Here, OMB invokes Exemption 5 to withhold responsive information. FOIA Exemption

5 exempts from disclosure “inter-agency or intra-agency memorandums or letters that would not

be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.

§ 552(b)(5). This exemption “encompass[es] the protections traditionally afforded certain

documents pursuant to evidentiary privileges in the civil discovery context.” Rockwell Int’l Corp.

v. U.S. Dep’t of Justice, 235 F.3d 598, 601 (D.C. Cir. 2001) (quoting Formaldehyde Inst. v. Dep’t

of Health and Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989)). Exemption 5 incorporates

two privileges that are relevant here, the deliberative process privilege and the presidential

communications privilege. Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008). Judicial

Watch, Inc. v. Food and Drug Admin., 449 F.3d 141, 152 (D.C. Cir. 2006).

Through the Walsh Declaration and the attached Vaughn Index, OMB has met its burden

to provide a logical and plausible justification for the withheld records because they are exempted

from disclosure under the presidential communications and deliberative process prongs of

Exemption 5. See Walsh Decl., Vaughn Index. Thus, OMB is entitled to summary judgment with

respect to its withholdings.

A. OMB properly withheld the records in full as presidential communications under


FOIA Exemption 5.

Exemption 5 exempts presidential communications from disclosure. Judicial Watch v.

Dep’t of Justice, 365 F.3d 1108 (D.C. Cir. 2004). There is a “presumptive privilege for presidential

communications,” United States v. Nixon, 418 U.S. 683, 708 (1974), intended to “preserve[] the

President’s ability to obtain candid and informed opinions from his advisors and to make decisions

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confidentially.” Loving, 550 F.3d at 37. The privilege allows the “President and those who assist

him” to “explore alternatives in the process of shaping policies and making decisions and to do so

in a way many would be unwilling to express except privately.” Nixon, 418 U.S. at 708. “The

President’s need for complete candor and objectivity from advisers calls for great deference from

the courts.” Id. at 706. The presidential communications privilege is “fundamental to the operation

of Government and inextricably rooted in the separation of powers under the Constitution.”

Judicial Watch, 365 F.3d at 1113; see also Comm. on Oversight & Gov’t Reform, United States

House of Representatives v. Lynch, 156 F. Supp. 3d 101, 109 (D.D.C. 2016) (observing the

presidential communication privilege “may derive more protection from the Constitution”).

The presidential communications privilege provides broader protection than the

deliberative process privilege. See In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997). The

privilege “applies to documents in their entirety, and covers final and post-decisional materials as

well as pre-deliberative ones,” thus no segregability analysis is required. Id. (emphasis added).

Because the presidential communications privilege is “rooted in constitutional separation of

powers principles and the President’s unique constitutional role,” judicial negation of the privilege

is “subject to greater scrutiny than denial of the [common-law] deliberative privilege.” Id.

The Times requested all emails to and from an Assistant to the President, and later limited

the response to only those documents involving the Ukraine, which is within Blair’s portfolio of

responsibilities in advising the President. Walsh Decl. ¶¶ 5, 23. It is unsurprising, given the nature

of the request, that OMB determined that each of the responsive records contains presidential

communications. The Times cites to cases involving other FOIA exemptions that stand for the

proposition that “blanket withholding” is disfavored, see Pls.’ Mot. at 7-8. But those cases are

inapplicable here. OMB evaluated each record individually; it did not assert the privilege in a

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blanket manner over all the records. Walsh Decl. ¶¶ 21, 26 (describing a “document-by-

document” approach). Moreover, unlike the other FOIA exemptions addressed in decisions

addressing blanket withholding, records containing presidential communications may be withheld

in their entirety without a segregability analysis. See In re Sealed Case, 121 F.3d at 745.

Accordingly, OMB properly withheld those records in their entirety as exempt from the FOIA.

1. Robert Blair’s emails are protected under the presidential communications


privilege.

The presidential communication privilege shields in its entirety “the President’s personal

decision-making process,” including the gathering of information by White House staff that is

relevant to that process, even when that information is not conveyed directly to the President.

Judicial Watch, 365 F.3d at 1118; In re Sealed Case, 121 F.3d at 752. The privilege extends to

“communications authored or solicited and received by those members of an immediate White

House advisor’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.” In re Sealed Case, 121 F.3d at 752. As the D.C. Circuit has emphasized,

“Presidential advisers do not explore alternatives only in conversations with the President or pull

their final advice to him out of thin air[.]” Id. at 750. Because these advisors need “sufficient

elbow room . . . to obtain information from all knowledgeable sources, the privilege must apply

both to communications which these advisers solicited and received from others as well as those

they authored themselves.” Id. at 752.

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Robert Blair, as an Assistant to the President and Senior Advisor to the White House Chief

of Staff, is the type of immediate advisor to the President contemplated by this privilege. 4 See

Walsh Decl. ¶¶ 23-24. Assistants to the President are the President’s most senior aides. Id. ¶ 24.

Generally, the small number of senior aides to the President that serve as Assistants “work in close

proximity to the President” and are “tasked with obtaining information from Executive Branch

agencies to inform the President’s decision-making process.” Id. Blair’s responsibilities to the

President included national security issues, such as military assistance to the Ukraine. Id. ¶ 23.

Blair occupied an office on the first floor of the West Wing, provided counsel to the President on

a wide range of national security issues, and attended meetings with the President on those issues.

Id.; see also Pls.’ Mot. at 3 (admitting that only 25 people serve as Assistant to the President).

Though the Times describes Blair as a “former OMB staffer,” Pls.’ Mot. at 12, Blair’s former

position at OMB is not relevant here. These emails were authored and solicited by Blair during

the time period in which he occupied the Assistant to the President position. Walsh Decl. ¶ 23

(explaining that Blair occupied this position between February and December, 2019); see Vaughn

Index.

The Times further argues that Blair’s job is too “remote” from the President by comparing

his relationship to the President to that of the Deputy Attorney General and a “large swath” of

other executive officials. See Pls. Mot. at 11. This false analogy ignores the underlying case law

distinguishing between White House advisors and other executive branch agency officials. The

D.C. Circuit firmly has held that the privilege applies to the communications of “immediate White

House advisers in the Office of the President and their staff,” but not communications of staff

4
With respect to e-mails authored by Duffey, they contain presidential communications because they were solicited
and received by Blair to assist in Blair’s investigation and formulation of advice to the President. See In re Sealed
Case, 121 F.3d at 750. OMB does not contend that the e-mails authored by Duffey at issue in this case are
independently entitled to the presidential communication privilege outside that relationship. See Pls.’ Mot. at 10-12.

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outside the White House in executive branch agencies, unless the communications were solicited

and received by White House advisers. Judicial Watch, 365 F.3d at 1115–18. Though the Deputy

Attorney General is undoubtedly a high ranking government officer, the Deputy Attorney General

serves in an executive branch agency, “outside the White House,” and thus is not an immediate

White House advisor for purposes of the Presidential communications privilege. Id. By contrast,

Blair is an “immediate White House advisor” within the White House and included within the

privilege’s scope. Id. In fact, the privilege extends even further “down the chain” to members of

a White House adviser’s staff below the President’s immediate advisor, “since in many instances

advisers must rely on their staff to investigate an issue and formulate the advice to be given to the

President.” In re Sealed Case, 121 F.3d at 752. Notably, in the same decision holding that internal

Justice Department communications with the Deputy Attorney General are not subject to the

presidential communication privilege, the D.C. Circuit concluded that a document authored by a

White House extern was entitled to the privilege. Judicial Watch, Inc., 365 F.3d at 1117.

Blair’s position is not too far removed from the President for his communications to be

subject to the presidential communication privilege; to the contrary, he is just the sort of

Presidential advisor that the privilege protects.

2. The communications were part of Blair’s formulation of advice to the


President.

The presidential communication privilege encompasses communications authored by and

“solicited and received” by White House advisers and their staff, in this case Blair, as part of the

process of “investigating and formulating the advice to be given the President,” even if that

information is not conveyed “directly” to the President. In re Sealed Case, 121 F.3d at 752.

Solicitation by a Presidential advisor “leading up to” a presidential decision will suffice to show

“that the document was created for the purpose of advising the President on that decision.” Protect

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Democracy Project, Inc. v. U.S. Dep’t of Def., 320 F. Supp. 3d 162, 174 (D.D.C. 2018). Each of

the records withheld under the presidential communications privilege meets this standard, because

the communications were with Blair, a Presidential advisor, to inform ongoing presidential

deliberations regarding the nature and scope of the military assistance to the Ukraine. See Walsh

Decl. ¶ 21.

The inquiry about whether a White House official is entitled to the presidential

communications privilege also turns on the relationship between the nature of that advisor’s

responsibilities to the subject of the communications. See In re Sealed Case, 121 F.3d at 752.

And, in this case, Blair has “broad and significant responsibility” in the area of national security,

in particular military assistance to the Ukraine, which encompasses the “particular matter to which

the communications relate.” Id.; see Walsh Decl. ¶ 23. Blair was one of the most senior advisors

to the President on this issue, and was responsible for briefing the President and regularly

participating in high level meetings on this subject. Id. The Walsh Declaration and the Vaughn

Index establish that each of these records reflects a dialogue with Blair regarding the “nature, scope

and amount of assistance provided to Ukraine by the United States and other countries.” Id.

¶ 21(b). This falls directly within Blair’s portfolio of responsibilities as an Assistant to the

President responsible for, among other matters, military assistance to Ukraine.

The Times’ baseless assertion that there is “no indication that Blair’s role” involves

advising the President on Ukraine funding, is belied by the Times’ own briefing. Pls.’ Mot. at 11.

The Times describes Blair’s role as so critical that he was on the line during the President’s July

25, 2019 phone call with the Ukrainian President, and states that Senator Chuck Schumer believes

that Blair has “direct knowledge” of the President’s deliberations regarding the Ukraine. See id.

at 3. As further evidence that the subject of the emails is within Blair’s purview, some of the

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emails indicate, directly on the face of the message, that the information provided by Duffey to

Blair would be used to advise the President. Walsh Decl. ¶ 21(a).

As the Walsh Declaration and Vaughn Index demonstrate, each email authored by Blair

either conveyed information to Duffey that reflected Blair’s involvement in presidential

decisionmaking, or solicited information from Duffey on Ukraine aid, to which Duffey then

responded either via email or through other means, such as a phone call or meeting. Id. ¶ 21.

Likewise, the Walsh Declaration establishes that Blair requested that Duffey keep him updated

regarding issues related to the “nature, scope, and amount of the assistance provided to the Ukraine

by the United States and other countries,” demonstrating that Blair actively solicited any emails

authored by Duffey on this subject matter. Id. ¶ 21(b). Many of the emails themselves provide

further evidence that Duffey authored them to inform Blair, stating on the face of the email that

the information was provided per Blair’s request or in response to questions from Blair. Id. The

Walsh Declaration further establishes that Duffey and Blair had an ongoing collaboration that

included email, telephone calls, and in-person meetings, so the emails themselves represent only

a partial record of their communication, and that sometimes information was also either solicited

or received outside of email. Id. ¶¶ 20- 21.

Given these descriptions of each communication in the Walsh Declaration and the Vaughn

Index, disclosing these emails would expose the information that Blair, an Assistant to the

President, authored or solicited and received to formulate advice in support of presidential

decisionmaking regarding the nature, scope, and duration of the hold on military assistance to the

Ukraine. Accordingly, the presidential communications privilege protects these records from

disclosure.

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3. OMB properly withheld the records in their entirety because protecting these
communications is necessary to protect frank and candid communication.

As OMB explains in its declaration, protecting the confidentiality of these communications

is essential to the provision of frank and candid advice to the President and his advisors. Id. ¶ 22.

It is critical for an advisor to gather the information that is necessary to formulate his or her advice

for the President. Without frank and confidential communications, it would handicap the advisor’s

ability to receive the information needed to advise the President and compromise the

confidentiality of the decisionmaking of the President and his closest advisors. See In re Sealed,

121 F.3d at 750 (“the 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”).

The Times argues that OMB’s non-disclosure is designed to prevent embarrassment,

protect the personal interests of those involved, or to cover up OMB’s alleged misconduct. See

Pls.’ Mot. at 20-22. But this assertion has no basis in fact. Indeed, OMB has established the

opposite. Protecting the confidentiality of this information is “paramount” to ensuring the

President gets the unvarnished information “necessary to make fully informed decisions.” Walsh

Decl. ¶ 22. In particular, in this context “involving sensitive subjects of national security and

foreign aid,” Blair had to be able to “gather information from agency experts” in order to fully

formulate his advice to the President. Id. As the Walsh Declaration and Vaughn Index

demonstrate, OMB and the White House foresee that disclosures of emails of this type, in which

OMB provides a Presidential advisor information related to national security and foreign military

aid, would chill and hinder the future free flow of information on this sort of subject. Id. Because

all of the information in these emails was either authored by or solicited and received by an

Assistant to the President, disclosure of such information would, in particular, foreseeably harm

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the quality of information available to future Assistants to the President seeking information from

OMB or other Executive Branch agencies. Id. That, in turn, harms the President’s ability to

receive the best possible information and advice from those advisors. Id.

In this case, even disclosure of the factual information that Blair received could harm the

confidentiality of this communication. “Exposure of the factual portions of presidential advisers’

communications . . . represents a substantial threat to the confidentiality of the President’s own

deliberations.” In re Sealed, 121 F.3d at 750. Disclosure of such material “can quickly reveal the

nature and substance of the issues before the President, since ‘[i]f you know what information

people seek, you can usually determine why they seek it.’” Id. at 750-51 (alteration in original)

(citation omitted).

Though the Times argues that the interest in confidentiality has already been destroyed due

to the ongoing public attention to this issue, see Pls.’ Mot. at 20-21, the public nature of the matter

is beside the point. The emails at issue are not in the public domain, and it is the disclosure of

those confidential communications that implicates the interests underlying Exemption 5. Walsh

Decl. ¶ 27. Thus, OMB has properly relied on the presidential communications privilege under

Exemption 5 to protect the interests of the President and his advisors in receiving candid and

confidential advice.

B. OMB properly withheld deliberative communications under FOIA Exemption 5.

Exemption 5 also exempts deliberative communications from disclosure. Independent

from the presidential communications privilege, 21 of the responsive records contain information

also exempt from disclosure under the deliberative process privilege. See Vaughn Index Doc. Nos.

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1-21. 5 The deliberative process privilege is a “long-recognized privilege” intended to “prevent

injury to the quality of agency decisions” by permitting “the withholding of all papers which reflect

the agency’s group thinking in the process of working out its policy.” NLRB v. Sears, Roebuck &

Co., 421 U.S. 132, 151, 152–53 (1975).

The privilege “encourage[s] the frank discussion of legal and policy issues within the

government.” Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991) (quoting

Wolfe v. U.S. Dep’t of Health and Human Servs., 839 F.2d 768, 773 (D.C. Cir. 1988) (en banc))

(internal quotation marks omitted). It also “protects the public from confusion that would result

from premature exposure to discussions occurring before the policies affecting it had actually been

settled upon” and ensures the “integrity of the decision-making process” by allowing agency

officials to be judged for their final decisions, “not for matters they considered before making up

their minds.” Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982) (quoting

Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978)). This privilege allows the

Government to “withhold documents and other materials that would reveal ‘advisory opinions,

recommendations and deliberations comprising part of a process by which governmental decisions

and policies are formulated.’” In re Sealed Case, 121 F.3d at 737 (citations omitted).

“Two requirements are essential to the deliberative process privilege: the material must be

predecisional and it must be deliberative.” Id. Courts give agencies a wide berth in determining

what is “‘part of the agency give-and-take . . . by which the decision itself is made.’” Chem. Mfrs.

Ass’n v. Consumer Prod. Safety Comm’n, 600 F. Supp. 114, 118 (D.D.C. 1984) (citations omitted).

“The [agency] is better situated than . . . [the] Court to know what confidentiality is needed” to

5
If the Court upholds OMB’s determination that these records contain Presidential Communications, it need not
address deliberative communications, because the deliberative information is fully encompassed within the
presidential communications withholdings.

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prevent injury to agency decisionmaking.” Id. Courts are “reluctant to force agencies to expose

their decisionmaking processes.” Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the

Fed. Reserve Sys., 762 F. Supp. 2d 123, 135 (D.D.C. 2011).

OMB recognizes that, when asserting the deliberative process privilege, agencies are

ordinarily required to segregate and produce any purely factual content unless such content is “so

inextricably intertwined with the deliberative sections of documents that its disclosure would

inevitably reveal the government’s deliberations.” Elec. Frontier Found. v. U.S. Dep’t of Justice,

890 F. Supp. 2d 35, 47 (D.D.C. 2012) (citation omitted). OMB withheld these records in full

pursuant to the presidential communications privilege, see supra, but OMB only asserts the

deliberative process privilege as to the subset of information within these records consisting of

pre-decisional, deliberative information, not purely factual or other segregable content. Walsh

Decl. ¶¶ 17, 26; see Pls.’ Mot. at 14. Because the Walsh Declaration and Vaughn Index establish

that (1) the records contain information that is pre-decisional and deliberative, and (2) disclosure

of the information would discourage candid and frank discussion, the identified information is

exempt from disclosure pursuant to the deliberative process privilege under Exemption 5.

1. The records contain pre-decisional and deliberative information.

OMB has established that all the information over which it asserts the deliberative process

privilege is pre-decisional and deliberative. A predecisional record is one that “was generated

before the adoption of an agency policy.” Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d

141, 151 (D.C. Cir. 2006) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854,

866 (D.C. Cir. 1980)). A deliberative record is one that “reflects the give-and-take of the

consultative process.” Coastal States Gas, 617 F.2d at 866.

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“To establish that a document is predecisional, the agency need not point to an agency final

decision, but merely establish what deliberative process is involved, and the role that the

documents at issue played in that process.” Judicial Watch v. Export-Import Bank, 108 F. Supp.

2d 19, 35 (D.D.C. 2000) (citing Formaldehyde Inst. v. HHS, 889 F.2d 1118, 1223 (D.C. Cir.

1989)). An agency need not “identify a specific decision in connection with which a memorandum

is prepared.” See Access Reports, 926 F.2d at 1196 (holding that the “exemption does not turn on

the ability of an agency to identify a specific decision in connection with which a memorandum is

prepared” because “[a]ny requirement of a specific decision after the creation of the document

would defeat the purpose of the exemption.” (citation omitted)); Elec. Frontier Found. v. U.S.

Dep’t of Justice, 890 F. Supp. 2d 35, 52 (D.D.C. 2012) (withheld briefing materials need only have

contributed to a decision-making process, not necessarily a particular decision). The agency must

“merely establish what deliberative process is involved, and the role that the documents at issue

played in that process.” Judicial Watch, 108 F. Supp. 2d at 35 (citing Formaldehyde, 889 F.2d at

1223). A deliberative record is one that “reflects the give-and-take of the consultative process.”

Coastal States Gas, 617 F.2d at 866.

As the declaration makes clear, these communications disclose the ongoing give and take

of the consultation process and policy-making related to the scope and status of the hold on military

assistance to the Ukraine. Walsh Decl. ¶ 26. The emails consist of a “series of back-and-forth

exchanges” in which Duffey shares information with Blair, and Blair answers Duffey’s questions,

as they “discuss[] matters intended to be subsequently decided.” Id. The emails reflect

deliberative conversations to inform future decisions “regarding the use of security assistance

funds for Ukraine.” Id.

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Such give and take deliberations do not only occur in memoranda and formal policy

recommendations, as the Times implies, see Pls.’ Mot at 14, but often occur via email. See, e.g.,

Ctr. for Biological Diversity v. EPA, 369 F. Supp. 3d 128, 135 (D.D.C. 2019) (holding that material

in email chains constitute deliberative communications exempt from disclosure); Public Citizen,

Inc. v. U.S. Dep’t of Educ., 388 F. Supp. 3d 29, 42 (D.D.C. 2019) (same); Judicial Watch, Inc. v.

Consumer Fin. Prot. Bureau, 60 F. Supp. 3d 1, 9 (D.D.C. 2014) (same).

The Times rests its primary argument against this exemption on the untenable position that

the only decision at issue was made on June 19, 2019, and therefore any communication that

occurred after that decision is “post-decisional.” See Pls.’ Mot. at 14. But even if the decision to

withhold the Ukraine aid was made on June 19, there were plainly deliberations regarding the need

for the ongoing hold, the scope of the hold, and the eventual release of the Ukraine aid in the

months that followed. Indeed, the Walsh Declaration and Vaughn Index explain this very

situation: The emails consisted of ongoing and pre-decisional discussions on the scope and

duration of the hold on the Ukraine aid and deliberations related to Ukraine policy. Walsh Decl.

¶ 25. Further, the Declaration and Vaughn Index make clear that Blair was soliciting information

regarding OMB’s views and opinions on this subject, see id. ¶¶ 21, 26, so it is unsurprising that

Duffey’s responses to Blair include deliberative information.

Accordingly, OMB has met its burden to demonstrate that there is information within these

records that is both pre-decisional and deliberative, and therefore, exempt from disclosure.

2. Disclosure of the information would discourage frank discussion within the


government.

As established by the Walsh Declaration, OMB determined that disclosure of this

deliberative material would pose a foreseeable risk to future frank and candid discussion. See id.

¶ 26. If disclosure of material would tend to discourage candid discussion within an agency, such

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material is “often found to be deliberative.” Citizens for Responsibility and Ethics in Wash. v. U.S.

Dep’t of Homeland Sec., 514 F. Supp. 2d 36, 43 (D.D.C. 2007) (citing Access Reports, 926 F.2d

at 1195). The “ultimate purpose of this long-recognized privilege is to prevent injury to the quality

of agency decisions.” Sears, 421 U.S. at 151; see also Wolfe, 839 F.2d at 773 (en banc) (“Congress

adopted Exemption 5 because it recognized that the quality of administrative decision-making

would be seriously undermined if agencies were forced to operate in a fishbowl.”).

The Times asserts that the FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat.

538 (June 30, 2016), elevates the importance of the “foreseeable harm” analysis required by

Exemption 5. See Pls.’ Mot. at 20-21. But this misstates the effect of the Act. Among other

changes, the Act added to FOIA a provision related to the standard for disclosure of exempt

information, now codified at 5 U.S.C. § 552(a)(8). See Pub. L. No. 114-185, § 2(a)(1). This

provision provides in relevant part:

(8)(A) An agency shall—

(i) withhold information under this section [i.e., FOIA] only if—

(I) the agency reasonably foresees that disclosure would harm an interest protected
by an exemption described in subsection (b); or

(II) disclosure is prohibited by law[.]

5 U.S.C. § 552(a)(8). As Congress explained, the enactment of this provision was intended to

codify a “presumption of openness” in FOIA. H.R. Rep. No. 114-391, at 9 (2016); S. Rep. No.

114-4, at 323 (2015). Specifically, § 552(a)(8)(A)(i)(I) directs agencies to assess “whether an

agency has reasonably foreseen a specific, identifiable harm” before making a disclosure

determination with respect to certain exemptions. H.R. Rep. No. 114-391, at 9.

The Times seems to suggest that this amendment worked a significant change to the

government’s burden when withholding information under FOIA. See Pls.’ Mot. at 18 (alleging

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that the Act “places an additional burden on the Government”). But Congress made clear that the

amendment simply codified existing government policy that had been in place for the better part

of a decade. H.R. Rep. No. 114-391, at 9 (noting that the policy was established by executive

memoranda in 2009); S. Rep. No. 114-4, at 323 (same); Freedom of Information Act, 74 Fed. Reg.

4683 (Jan. 21, 2009) (presidential memorandum). And DOJ already employed this standard when

defending agency withholdings in litigation. See H.R. Rep. No. 114-391, at 9; accord Attorney

General Holder’s Mem. for Heads of Exec. Dep’ts & Agencies Concerning the Freedom of

Information Act, at 1-2 (Mar. 19, 2009), http://www.usdoj.gov/ag/foia-memo-march2009.pdf.

Further, Congress expressly acknowledged that this amendment “does not alter the scope of

information that is covered under an exemption.” H.R. Rep. No. 114-391, at 10. Rather, with

respect to certain FOIA exemptions, § 552(a)(8)(A)(i)(I) simply requires agencies to identify a

foreseeable harm to an interest protected within the existing scope of certain exemptions, in line

with prior policy.

The Walsh Declaration meets this standard by identifying the foreseeable harm it seeks to

protect by invoking FOIA Exemption 5. “The deliberative process privilege rests on the obvious

realization that officials will not communicate candidly among themselves if each remark is a

potential item of discovery and front page news, and its object is to enhance the quality of agency

decisions by protecting open and frank discussion among those who make them within the

Government.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001)

(citations omitted).

The same interests in protecting confidentiality of information provided to a Presidential

advisor, discussed supra, are applicable here in the context of deliberative communications. And

OMB’s declaration explains in detail how disclosure of the deliberations within these

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communications would foreseeably harm the interests protected by the Exemption 5 privileges.

See Walsh Decl. ¶¶ 22, 27. Further, OMB has a statutory responsibility to “ensure that Federal

agencies spend appropriate funds in an efficient and effective manner, consistent with the purpose

for which they were appropriated, and “apportion funds for any time period.” Id. ¶ 27. OMB

relies upon precisely this type of free-flowing, candid analysis from agency experts to carry out its

apportionment duties pursuant to 31 U.S.C. §§ 1512 & 1513. Walsh Decl. ¶ 27. “Disclosure of

that analysis could ‘actually inhibit candor in the decision-making process if made available to the

public.’” Worldnetdaily.com, Inc. v. U.S. Dep’t of Justice, 215 F. Supp. 3d 81, 85 (D.D.C. 2016)

(quoting Army Times Pub. Co. v. Dep’t of the Air Force, 998 F.2d 1067, 1072 (D.C. Cir. 1993)).

Such discussions are crucial to OMB’s ability to perform its core responsibilities with

respect to apportionment of funds, and disclosing such confidential discussions here could be

reasonably anticipated to undermine OMB’s ability to carry out such crucial deliberations with

respect to other Federal programs across the Executive Branch. Walsh Decl. ¶¶ 26-27. OMB

therefore has appropriately applied the deliberative process privilege to maintain the

confidentiality of back-and-forth discussions.

III. Exemption 5 is neither overcome nor waived.

The Times, conceding that at least some of the redacted material properly qualifies as

presidential or deliberative communications under Exemption 5, advances three arguments for

why it alleges that the exemption is inapplicable in this case. See Pls.’ Mot. at 15-22. All three

arguments – that withholding the documents is inconsistent with the purposes of Exemption 5, that

government misconduct overrides Exemption 5, and that Exemption 5 has been waived through

public disclosure – fail as a matter of law and fact.

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A. The government misconduct exception neither applies in FOIA cases nor vitiates
OMB’s assertion of Exemption 5.

The Times argues that government misconduct – in this case, its allegation that OMB

allegedly misused its apportionment authority under the Impoundment Control Act – renders

Exemption 5 inapplicable. This argument fails because: (1) the prevailing view is that the

government misconduct exception does not apply in the FOIA context; (2) even if the government

misconduct exception were applicable, OMB has demonstrated that the records do not reflect any

misconduct; and (3) in any event, the records cannot constitute the type of “extreme” misconduct

contemplated by the government misconduct exception because OMB officials operated in the

good faith belief that they were not violating the Impoundment Control Act or any other law.

First, as the Times concedes, it is questionable whether the government misconduct

exception can be used to pierce a withholding under Exemption 5. See Pls.’ Mot. at 17. For

example, the D.C. Circuit has held that, in the context of a grand jury subpoena, that “[t]he

deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing

of need,” because “where there is reason to believe the documents sought may shed light on

government misconduct, the privilege is routinely denied, on the grounds that shielding internal

government deliberations in this context does not serve the public’s interest in honest, effective

government.” In re Sealed Case, 121 F.3d at 737–38 & n.5. But in the same opinion, the D.C.

Circuit disclaimed the applicability of a government misconduct exception in the context of the

FOIA, explaining “[t]his characteristic of the deliberative process privilege is not an issue in FOIA

cases because the courts have held that the particular purpose for which a FOIA plaintiff seeks

information is not relevant in determining whether FOIA requires disclosure.” Id.; see also U.S.

Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772 (1989) (“The

Act’s sole concern is with what must be made public or not made public.”); F.T.C. v. Grolier Inc.,

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462 U.S. 19, 20, 28 (1983) (“The test under Exemption 5 is whether the documents would be

‘routinely’ or ‘normally’ disclosed upon a showing of relevance” not whether they would be

disclosed to a party who shows “substantial need” “sufficient to override the privilege” in a

particular case); Sears, 421 U.S. at 149 n.16 (“It is not sensible to construe [the FOIA] to require

disclosure of any document which would be disclosed in the hypothetical litigation in which the

private party’s claim is most compelling,” i.e., it should not “turn on the extent of the litigant’s

need”).

As the Times acknowledges, this Court and others in this district have agreed that “the

government misconduct exception recognized in In re Sealed Case cannot overcome an otherwise

valid withholding pursuant to Exemption 5.” Judicial Watch, Inc. v. U.S. Dep’t of State, 241 F.

Supp. 3d 174, 181 (D.D.C.), amended on reconsideration, 282 F. Supp. 3d 338 (D.D.C. 2017)

(quoting Wright v. Admin. for Children & Families, No. 15-218, 2016 WL 5922293, at *11

(D.D.C. Oct. 11, 2016)); see also Judicial Watch, Inc. v. U.S. Dep’t of State, 285 F. Supp. 3d 249,

253 (D.D.C. 2018) (“It is not clear in this circuit whether a government misconduct exception may

properly be invoked in a FOIA case.”); Judicial Watch, Inc. v. U.S. Dep’t of Commerce, No. 15-

cv-2088-CRC, 2017 WL 3822733, at *2 (D.D.C. Aug. 21, 2017) (“[T]he D.C. Circuit has never

held that government misconduct can abrogate the deliberative process privilege in a FOIA case.”);

Wright, 2016 WL 5922293, at *11 (“This reading of In re Sealed Case is in accordance with an

understanding of the FOIA well-established in this Circuit: Exemption 5’s protection of privileged

materials is not subject to the same exceptions to which the common law privilege is susceptible.”);

Neighborhood Assistance Corp. of Am. v. U.S. Dep’t of Hous. & Urban Dev., 19 F. Supp. 3d 1, 13

(D.D.C. 2013) (observing that the “so-called government misconduct exception,” arising from

D.C. Circuit dicta, is “much less clearly defined” and “other than these general observations, our

26
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Court of Appeals has never squarely applied the exception”); but see Pls.’ Mot. at 16-17 (collecting

cases in which district courts applied the government misconduct exception in a FOIA dispute).

Indeed, the reasons for a misconduct exception to the deliberative process privilege in the

grand jury subpoena or civil discovery context turn on the need to investigate wrongdoing. In re

Sealed Case, 121 F.3d at 737, 745, 746 (requiring that the party seeking the material make “a

focused demonstration of need, even when there are allegations of misconduct by high-level

officials” for privileged information and that the Court perform an in camera review to “excise

non-relevant material”). This rationale does not apply to FOIA because, as the Times admits, see

Pls.’ Mot. at 17, its need for the information is irrelevant to the Court’s analysis of whether

disclosure is required under the FOIA. See In re Sealed Case, 121 F.3d at 737 n.5; see also

Reporters Comm. for Freedom of the Press, 489 U.S. at 771 (“[W]hether [disclosure] is warranted

cannot turn on the purposes for which the request for information is made.”). There is no D.C.

Circuit precedent suggesting that the Court should reverse its previous course and adopt a

government misconduct exception to Exemption 5. For this reason alone, the Times’ misconduct

argument fails.

Second, if the Court is inclined to reconsider the applicability of the government

misconduct exception in a FOIA case, the Times still has failed to meet its burden to provide an

adequate basis for its belief that these specific records might expose government misconduct. “The

party seeking release of withheld documents under this exception must ‘provide an adequate basis

for believing that [the documents] would shed light upon government misconduct.’” Nat’l

Whistleblower Ctr. v. Dep’t of Health and Human Serv., 903 F. Supp. 2d. 59, 67 (D.D.C. 2012);

see Judicial Watch of Fla., Inc. v. U.S. Dep’t of Justice, 102 F. Supp. 2d 6, 15 (D.D.C. 2000)

(“There is no authority before the court, however, to support the proposition that the burden is

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upon the government to prove a negative, i.e., to prove in the first instance that a document does

not reveal any government misconduct.”); Hall & Assocs. v. U.S. Envtl. Prot. Agency, 14 F. Supp.

3d 1, 9 (D.D.C. 2014) (“While there is little case law to guide the Court on what quantum of

evidence must be shown to support the [government misconduct] exception, courts have

recognized the need to apply the exception narrowly.”); Lardner v. U.S. Dep’t of Justice, No.

CIV.A.03-0180(JDB), 2005 WL 758267, at *13 (D.D.C. Mar. 31, 2005) (“[The] plaintiff must

meet a demanding burden to overcome the executive’s invocation of a presidential

communications privilege.”).

A narrow application of any hypothetical misconduct exception is essential, because

otherwise the Exemption 5 privileges “would soon be meaningless, if all someone seeking

information otherwise protected under the privilege had to establish was that there was

disagreement within the government entity at some point in the decisionmaking process.”

Neighborhood Assistance Corp. of Am., 19 F. Supp. 3d at 20; Nat’l Whistleblower, 903 F. Supp.

2d. at 69 (warning against allowing the government misconduct exception to “swallow” up the

deliberative communications privilege).

The Times alleges that the deferral of funds to the Ukraine was government misconduct in

violation of the Impoundment Control Act. See Pls.’ Mot. at 18. But the Times offers no basis for

its belief that these communications comprise the alleged misconduct, rather than government

officials simply performing their duties after the alleged misconduct supposedly occurred. A

document sheds light on misconduct only when it “reflects any governmental impropriety,” but

not when it merely reflects a “part of the legitimate government process intended to be protected

by Exemption 5.” Judicial Watch, Inc. v. United States Dep’t of State, 235 F. Supp. 3d 310, 314

(D.D.C. 2017). For example, discussions amongst State Department staff regarding personal

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device technology options, recommendations to senior officials regarding use of personal devices,

and the security levels of the device, did not rise to the level of government conduct required for

the exception, even, assuming arguendo that the Secretary of State misused an unauthorized

electronic device. Judicial Watch, Inc. v. U.S. Dep’t of State, 285 F. Supp. 3d 249, 255 (D.D.C.

2018) (finding it dipositive that the emails discussions did not “reflect evidence of a serious breach

of responsibility by government officials”); see also Judicial Watch of Fla., 102 F. Supp. 2d at 15-

16 (rejecting government-misconduct exception because plaintiff failed to provide adequate basis

for believing that Attorney General’s notes would shed light on alleged misconduct of the Attorney

General’s failure to appoint independent counsel). Like the State Department discussions

regarding personal devices, even assuming, arguendo, the President’s decision to withhold aid was

misconduct, the topics of discussion in the emails was well within the context OMB’s statutory

responsibilities and reflect no misconduct whatsoever.

Here, the emails address the scope, duration, and purpose of the Ukraine hold and the nature

of the assistance provided to the Ukraine by the United States and other countries. Walsh Decl.

¶ 25. OMB has established that the information was provided in the context of a Presidential

advisor gathering information from OMB to inform his eventual advice to the President. Id. ¶ 21.

As the Walsh Declaration confirms, providing this information falls squarely within Blair and

Duffey’s regular duties to coordinate regarding U.S. assistance to the Ukraine. Id. ¶ 28. Thus, the

communications served an entirely legitimate purpose. The “presumption of regularity supports

the official acts of public officers and, in the absence of clear evidence to the contrary, courts

presume that they have properly discharged their official duties.” Latif v. Obama, 677 F.3d 1175,

1178 (D.C. Cir. 2012) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir.

2007)).

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Moreover, even where alleged misconduct may have occurred, if that misconduct occurred

in the past, government officials can still have “ordinary discussions about legitimate policy ends,”

protected by Exemption 5. Judicial Watch, 235 F. Supp. 3d at 314. In other words, “[t]he public

continues, after all, to have a clear interest in preserving the space necessary for government actors

to engage in the type of honest and appropriate deliberations that preserve effective governance,

even when they concern past misconduct.” Id. at 314-15 (emphasis in original) (holding that

government officials discussing State Department policy regarding private device use after Hillary

Clinton’s tenure as Secretary of State are not “nefarious government action or motive”).

According to the Times’ description of the events in the Ukraine matter, the locus of the

alleged misconduct occurred on June 19, 2019 when the Ukrainian security assistance was held.

See Pls.’ Mot. at 14. Here, all twenty-one emails are dated after June 19, 2019. See Vaughn Index.

OMB has provided an explanation of the contents of these discussions that demonstrates that the

underlying communications were well within the government officials’ legitimate duties to

provide information regarding the nature of the appropriated funds and plans for their use. Even

in a situation where misconduct allegedly occurred in the past, these communications do not reflect

misconduct, and do not lose their Exemption 5 protection even assuming one were to recognize a

misconduct exception in the context of FOIA. Walsh Decl. ¶¶ 21, 26.

Third, even if the Court assumes that the emails themselves evidence the conduct that the

Times is concerned with – the impoundment of funds – it is not the type of extreme wrongdoing

contemplated by the government misconduct exception. OMB operated under the good faith belief

that its actions were lawful pursuant to its statutory apportionment authority. See OMB Response

Letter to the Government Accountability Office (Dec. 11, 2019), https://www.whitehouse.gov/wp-

content/uploads/2020/01/response_to_gao_re_b-331564.pdf (“OMB Letter”). At most, the

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government misconduct exception only applies to a narrow set of cases involving “extreme

government wrongdoing.” Nat’l Whistleblower, 903 F.Supp.2d at 68–69; see also Thompson v.

U.S. Dep’t of Justice, Criminal Div., 146 F. Supp. 3d 72, 87 (D.D.C. 2015) (government

misconduct exception applies “only in cases of extreme government wrongdoing”). In the context

of this exception, “the word ‘misconduct’ implies ‘nefarious motives.’” Neighborhood Assistance,

19 F. Supp. 3d at 13. “In the rare cases that have actually applied the exception, the ‘policy

discussions’ sought to be protected with the deliberative process privilege were so out of bounds

that merely discussing them was evidence of a serious breach of the responsibilities of

representative government,” i.e., “[t]he very discussion . . . was an act of government misconduct.”

ICM Registry, LLC v. U.S. Dep’t of Commerce, 538 F. Supp. 2d 130, 133 (D.D.C. 2008).

Though the GAO report concluded that the impoundment of funds violated the

Impoundment Control Act, see Pls.’ Mot. at 18 (citing U.S. Gov’t Accountability Office, Decision

(Jan. 16, 2020), https://www.gao.gov/assets/710/703909.pdf (“GAO Report”)), OMB did not

share that view of the law. Indeed, OMB responded to the GAO that its actions during the pause

of military assistance to the Ukraine, prior to the funds expiring, was authorized by statutory

language giving the Executive branch “broad discretion to determine how these particular funds

should be spent.” OMB Letter at 9. OMB also asserted that its actions were consistent with its

statutory authority to “apportion funds for any time period . . . authorized by the appropriation.”

Id. at 3 (citing 31 U.S.C § 1512(a)); see also Pls.’ Mot. at 18 (minimizing the description of any

violation of the ICA that might have occurred as a “technical violation[]”). A genuine dispute as

to the meaning of the law cannot constitute “misconduct” within the meaning of the misconduct

exception. Were it otherwise, every time a litigant advocated a losing legal position in court, the

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litigant could be guilty of “misconduct.” Clearly that is not the intent of this exceedingly narrow

and rarely applied exception.

Both parties can have a legitimate disagreement regarding the interpretation of their

obligations under the law without giving rise to the presumption that one party has a “nefarious”

and unlawful motive. See e.g., Hinckley v. United States, 140 F.3d 277, 285-86 (D.C. Cir. 1998)

(rejecting government-misconduct exception to deliberative process privilege; the fact that John

Hinckley’s treatment team and the Hospital’s Review Board came to different conclusions about

whether to grant Hinckley a conditional release does not suggest any improper motive by the

Review Board in denying the release). Certainly, the very act of discussing the duration and scope

of the Ukraine funding hold, in light of presidential direction, and the nature of Ukraine funding,

was not itself a violation of the law, given OMB’s good faith belief that it was operating within

the bounds of its statutory authority. There is no basis to conclude that these emails were animated

by the “nefarious” motive required to invoke the government misconduct exception. 6

For these reasons, the Court should reject the Times’ invitation to use the government

misconduct exemption to override OMB’s lawful and proper assertion of Exemption 5.

B. OMB has not waived the presidential communications and deliberative process
privileges.

The Times’ argument that official acknowledgement of the communication waives the

assertion on Exemption 5 also falls flat in these circumstances. See Pls.’ Mot. at 19-20. To prove

that waiver has occurred through public disclosure, the Times must show that the information in

the withheld records (1) is “as specific as the information previously [disclosed]”; (2) “match[es]

6
The Times incorrectly suggests that President Trump’s impeachment demonstrates OMB’s misconduct as a matter
of law. See Pls.’ Mot. at 18-19. Impeachment is a political process that the Constitution assigns to Congress, not
the judicial branch. In any event, even accepting the Times’ argument that the impeachment process is
determinative of misconduct, the President was fully acquitted on February 5, 2020.

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the information previously disclosed”; and (3) has “already ha[s] been made public through an

official and documented disclosure.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990); see

also Afshar v. Dep’t of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983) (explaining that the burden is

on the requester to establish that specific record in public domain duplicates that being withheld).

As the D.C. Circuit has held, speculation that information in the withheld documents must have

been disclosed because an agency has publicly discussed related information does not satisfy

Plaintiff’s burden. See Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 59-60 (D.C.

Cir. 2003); see also, e.g., Edmonds v. FBI, 272 F. Supp. 2d 35, 49 (D.D.C. 2003) (finding no

waiver where information being withheld was not “identical” to the quoted public statements);

ACLU v. CIA, 109 F. Supp. 3d 220, 239 (D.D.C. 2015) (rejecting plaintiff’s argument that because

the government officially acknowledged basic facts about its targeted lethal force program and the

program’s legal basis it waived any FOIA exemptions with respect to withheld legal memoranda

pertaining to that subject).

That is the circumstance that presents itself here – the Times argues that because it has

been generally acknowledged that there was a “decision to hold the aid to the Ukraine before

eventually releasing it,” and that Blair and Duffey communicated with each other regarding

Ukraine aid, Pls.’ Mot. at 19, the entirety of their email communications have been waived.

The Times specifically cites to testimony from OMB Deputy Associate Director for the

National Security Division Mark Sandy as evidence of a waiver, Pls.’ Mot. at 20, relying on an

email about which Sandy testified that directed OMB to withhold the Ukraine aid. Assuming that

Mr. Sandy was referring to the July 18 email, Vaughn Index Doc. No. 21, 7 there is still no waiver,

7
Eighteen of the e-mails are from August 23 or later, which was after any reported decision regarding the initial
hold on the Ukraine aid. Vaughn Index Doc. Nos. 3-20. The June 27 email, Vaughn Index Doc. No. 1, was
authored by Duffey, an OMB official, so logically it would not contain an instruction from the White House to OMB
conveying a decision regarding Ukraine aid.

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because Mr. Sandy had no ability to waive privilege through his testimony. Prior to his testimony,

OMB expressly notified Mr. Sandy, through counsel, that given the Committee’s refusal to allow

the attendance of agency counsel in order to protect privilege, OMB “did not authorize Mr. Sandy

to disclose potentially privileged information,” including “information subject to executive

privilege.” Walsh Decl. ¶ 29. In the absence of such authorization, Mr. Sandy could not have

waived any applicable privilege. Because OMB did not authorize release of the information, it

cannot be an “official” disclosure sufficient to waive executive privilege. See, e.g., McKinley v.

Bd. of Governors of the Fed. Reserve Sys., 849 F. Supp. 2d 47, 60 (D.D.C. 2012) (holding that

information published “without authorization” of the agency “does not constitute a waiver of the

[agency]’s FOIA Exemptions” (citing Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999));

Judicial Watch, Inc. v. U.S. Dep’t of Def., 963 F. Supp. 2d 6, 16 (D.D.C. 2013) (holding that only

an “authorized” party may make a disclosure that waives exemptions)). 8

As for the remainder of the emails, the Times reasons that, because OMB has “openly

acknowledged and widely publicized” that Duffey and Blair communicated regarding the decision

to withhold Ukraine aid, Exemption 5 cannot “survive.” But “[a]n agency’s official

acknowledgment of information by prior disclosure, however, cannot be based on mere public

speculation, no matter how widespread.” Wolf, 473 F.3d at 378. An official acknowledgment that

documents exist is not the same as acknowledging the content of the documents. See Assassination

Archives & Research Ctr, 334 F.3d at 59-60. The Times fails to show that there has been public

disclosure of the content, nature, and specific details of the communication between Blair and

Duffey. See Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1280 (D.C. Cir. 1992) (explaining that

8
Vaughn Doc. No. 21 also includes communications on an entirely separate subject, unrelated to Ukraine. Mr.
Sandy neither testified about those portions, nor has OMB otherwise officially disclosed them. They remain fully
protected under the presidential communications and deliberative process privileges irrespective of whether the
Ukraine-related portion of the email was officially disclosed (which it was not).

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to prove waiver the requester must point to “‘specific’ information identical to that being

withheld”). And again, the Walsh Declaration and Vaughn Index establish that these emails reveal

discussions regarding the scope, nature and duration of the hold on Ukraine aid and Ukraine policy-

making generally that have not been officially disclosed.

IV. In camera review is neither necessary nor appropriate.

The Court should reject the Times’ request for an in camera review of the records. See

Pls.’ Mot. at 23. “In camera, ex parte review, though permitted under FOIA and sometimes

necessary, is generally disfavored . . . ,” and “should be invoked only when the issue at hand could

not be otherwise resolved.” Schiller v. N.L.R.B., 964 F.2d 1205, 1209 (D.C. Cir. 1992).

Summary judgment is appropriate without in camera review of documents where an

agency’s affidavits “provide specific information sufficient to place the documents within [an]

exemption category,” and “this information is not contradicted in the record,” nor is there

“evidence in the record of agency bad faith.” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 626 (D.C.

Cir. 2011); see also Ctr. for Auto Safety v. EPA, 731 F.2d 16, 20 (D.C. Cir. 1984) (finding a court

has broad discretion to determine the need for in camera review). “When the agency meets its

burden by means of affidavits, in camera review is neither necessary nor appropriate.” Hayden v.

Nat’l Sec. Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979).

In this case, the Walsh Declaration and Vaughn Index provide sufficiently detailed

information to meet OMB’s burden to demonstrate that it properly withheld these records in their

entirety as presidential communications, pursuant to Exemption 5. Much of the Times’ argument

for in camera review is that it is “simply not plausible” that these records are wholly exempt from

disclosure without a segregability analysis. See Pls.’ Mot. at 23. The argument ignores well-

established law that the presidential communication privilege is applicable to the entirety of the

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record and no segregability analysis is required. See In re Sealed Case, 121 F.3d at 745; see also

Judicial Watch, Inc. v. U.S. Dep’t. of Def., 913 F.3d 1106, 1113 (D.C. Cir. 2019) (“[B]ecause the

presidential communications privilege applies to the totality of the five memoranda that Judicial

Watch requests . . . the question of segregability of non-exempt material is therefore not

presented.”).

The Walsh Declaration and Vaughn Index are also sufficient to demonstrate that there is

information within the records that is also exempt from disclosure as deliberative communication,

pursuant to Exemption 5. Lastly, OMB has established, through this briefing and the Walsh

Declaration, that neither a government misconduct exception nor a waiver render its assertion of

Exemption 5 inapplicable. Accordingly, OMB has met its burden and “[i]n camera review is

neither necessary nor appropriate.” Hayden, 608 F.2d at 1387.

CONCLUSION

For the foregoing reasons, OMB respectfully requests that the Court deny Plaintiffs’

motion for summary judgment and that the Court grant summary judgment in OMB’s favor.

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February 10, 2020 Respectfully submitted,

JOSEPH H. HUNT
Assistant Attorney General
Civil Division

ELIZABETH J. SHAPIRO
Deputy Branch Director

/s/Rebecca Cutri-Kohart
Rebecca Cutri-Kohart
D.C. Bar No. 1049030
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, D.C. 20005
(202) 514-0265 (office)
rebecca.cutri-kohart@usdoj.gov

Attorneys for Defendant

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Case 1:19-cv-03562-ABJ Document 23 Filed 02/10/20 Page 48 of 48

CERTIFICATE OF SERVICE

I hereby certify that I filed the foregoing Cross-Motion for Summary Judgment and

Opposition to Plaintiff’s Motion for Summary Judgment with the Clerk of the Court through the

ECF system on February 10, 2020. This system provided a copy to and effected service of this

document on all parties.

/s/Elizabeth J. Shapiro
Elizabeth J. Shapiro
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, D.C. 20005
(202) 514-5302
elizabeth.shapiro@usdoj.gov

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Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
____________________________________
)
THE NEW YORK TIMES COMPANY )
AND CHARLIE SAVAGE )
)
Plaintiffs, )
)
v. ) Civil Action No. 1:19-cv-3562 (ABJ)
)
OFFICE OF MANAGEMENT AND )
BUDGET )
)
Defendant. )
____________________________________)

DECLARATION OF HEATHER V. WALSH

I, Heather V. Walsh, make the following declaration based on personal knowledge and

information made available to me in the course of my official duties:

1. I am the Deputy General Counsel in the Office of Management and Budget’s (“OMB”)

Office of the General Counsel (“OGC”). Previously, I was an Assistant General Counsel in this

office, and I have worked at OMB since 2009.

2. My office handles all requests submitted to OMB under the Freedom of Information Act

(FOIA), 5 U.S.C. § 552. One of my responsibilities is to supervise the staff responsible for

handling FOIA requests. Due to my official duties, I am familiar with the procedures followed

by OMB OGC in responding to FOIA requests. Additionally, I regularly work with OMB staff

across multiple components of the agency, and am therefore familiar with the breadth and variety

of OMB’s involvement in issues across the Federal Government.

3. I am aware of OMB’s handling of the FOIA request at issue in this case, which was

submitted to OMB by Plaintiffs on September 26, 2019 (the “Request”).


Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 2 of 22

4. The purpose of this declaration is to describe the search conducted by OMB and the

application of FOIA exemptions to the documents that OMB processed in response to Plaintiffs’

FOIA Request.

OMB’S PROCESSING OF PLAINTIFF’S FOIA REQUEST

5. On September 26, 2019, OMB received Plaintiffs’ FOIA request via email. A true and

accurate copy of the request is attached hereto as Exhibit 1. The request seeks “all email

correspondence between Michael Duffey and Robert Blair from May 1[, 2019] to the present.”

6. The following day, on September 27, 2019, OMB acknowledged receipt of Plaintiffs’

FOIA Request and assigned it OMB FOIA Number 2019-486. A true and accurate copy of

the acknowledgment is attached hereto as Exhibit 2.

7. On October 29, 2019, Plaintiffs filed an administrative appeal claiming that OMB’s

failure to respond to the FOIA Request within 20 business days constitutes a constructive denial.

A true and accurate copy of the administrative appeal letter is attached hereto as Exhibit 3.

8. Twenty-eight days later, on November 26, 2019, Plaintiffs filed a FOIA complaint to

obtain an order for the production of records. Subsequently, on December 5, 2019, Plaintiffs

filed a Motion for a Preliminary Injunction. Following receipt of the Plaintiffs’ motion, counsel

for OMB reached out to Plaintiffs to discuss the scope of their Request and a potential

production schedule.

9. On December 9, 2019, the Court held a status conference and entered a Minute Order

directing OMB to conduct a search and provide the search results to Plaintiffs by 3pm on

December 12, 2019.

10. On December 12, 2019, OMB informed Plaintiffs that the search returned 219 potentially

responsive documents subject to further manual de-duplication and review for responsiveness.

The parties then met and conferred on a timeline for production. As reflected in the Joint Status

2
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 3 of 22

Report filed on December 13, 2019, the parties agreed that OMB “will produce all non-exempt,

documents responsive to Plaintiffs’ FOIA request by 5:00 p.m. on January 3, 2020, excluding

any documents not related to the Ukraine matter.”

11. On January 3, 2020, OMB provided an interim response to Plaintiffs’ Request, stating

that the search identified a total of 20 responsive documents, consisting of 40 pages, and that all

20 documents were being withheld in full pursuant to FOIA Exemption 5 as subject to the

deliberative process and Presidential communications privileges. A true and accurate copy of

OMB’s interim response letter is attached hereto as Exhibit 4. As described below, OMB has

since supplemented its search, and an additional record was identified and withheld in full.

12. On January 10, 2020, the parties filed another Joint Status Report in which Plaintiffs

agreed to dismiss without prejudice their claim for responsive documents unrelated to the

Ukraine matter. The parties also proposed competing briefing schedules.

13. In a Minute Order dated January 13, 2020, the Court set a briefing schedule and directed

Plaintiffs to file their stipulation of dismissal by January 22, 2020, with respect to the remainder

of the documents sought from OMB.

ADEQUACY OF OMB’S SEARCH

14. To collect records responsive to Plaintiffs’ Request, OMB initiated a back-end electronic

search of Mr. Duffey’s email account to capture all communications between Mr. Duffey and

Mr. Blair between May 1, 2019, and September 26, 2019, regardless of the topic. Because

Plaintiffs’ Request sought records “to the present,” OMB interpreted this to mean the date

Plaintiffs submitted their Request and, as such, OMB used September 26, 2019, as the search

cut-off date. Specifically, OMB searched for communications in Mr. Duffey’s email account in

which any of the email address fields (i.e., from, to, cc or bcc) contained “Robert” within three

3
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 4 of 22

words of “Blair.” This search collected 219 potentially responsive documents, consisting of 178

emails and 41 attachments.

15. After the Plaintiffs agreed to limit the scope of their FOIA Request to only Ukraine-

related communications, OMB reviewed each of the 219 documents to determine their

responsiveness. In performing its review for responsiveness, OMB excluded emails not related

to Ukraine per the agreement with the Plaintiffs and OMB did not identify any emails between

Mr. Duffey and Mr. Blair in which the topic was indiscernible. OMB also manually de-

duplicated the 219 documents. For example, OMB identified and removed duplicate records

such as the same communication included later in time in the same email chain. Through this

review, OMB winnowed the results to a total of 20 responsive documents. The remaining 199

documents were either duplicates or emails and their attachments on topics unrelated to Ukraine.

Of the 199 documents, 12 were duplicates and 187 were on topics unrelated to the Ukraine.

16. In the course of preparing this declaration and to ensure that all potentially responsive

records are captured, OMB performed a supplemental search of Michael Duffey’s classified

email system. The supplemental search relied on the same parameters and date range as the

original search for unclassified emails. The supplemental search identified one new document,

consisting of a single page, dated July 18, 2019, and marked Unclassified and For Official Use

Only (FOUO).

APPLICATION OF FOIA EXEMPTIONS

17. OMB withheld in full the 21 documents responsive to Plaintiffs’ FOIA Request pursuant

to FOIA Exemption 5, 5 U.S.C. § 552(b)(5), as subject to both the deliberative process and

Presidential communications privileges. A true and accurate copy of OMB’s Vaughn Index is

attached hereto as Exhibit 5. OMB withheld the documents in full pursuant to the Presidential

Communications Privilege, but only asserts the deliberative process privilege as to the subset of

4
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 5 of 22

this information within these records, as reflected in the Vaughn Index attached hereto as Exhibit

5. See Doc. Nos. 1-21.

18. Additionally, 15 of the 21 documents contain a small amount of personal information,

limited to e-mails and phone numbers of OMB employees, protected by FOIA Exemption 6, 5

U.S.C. § 552(b)(6). OMB asserts Exemption 6 only as to the subset of this information within

these records, as reflected in the Vaughn Index attached hereto as Exhibit 5.

PRESIDENTIAL COMMUNICATIONS PRIVILEGE

19. The Presidential Communications Privilege applies to communications of the President

that take place in connection with the performance of his official duties, as well as information

that is solicited and received by the President or an immediate White House advisor to the

President in connection with presidential decision-making.

20. As reflected in the Vaughn Index, the responsive email communications between Mr.

Duffey and Mr. Blair began on June 27, 2019, and lasted through September 6, 2019. Each of

these emails was a direct exchange between Michael Duffey, who is OMB’s Principal Associate

Director for National Security Programs, and Robert Blair, who is an Assistant to the President

and Senior Advisor to the White House Chief of Staff. Collectively, these emails represent a

back-and-forth dialogue during a three-month period involving Presidential decision-making

about the scope, duration, and purpose of the hold on military assistance to Ukraine.

21. The email communications between Mr. Duffey and Mr. Blair can be grouped into two

categories: a) emails exchanged between Mr. Duffey and Mr. Blair, and b) emails authored by

Mr. Duffey without a response from Mr. Blair. In both of these categories, the communications

are protected from disclosure, as explained below.

a. Fifteen documents fall into the first category: emails exchanged between Mr. Duffey

and Mr. Blair. See Doc. Nos. 1, 2, 3, 4, 5, 11, 12, 13, 14, 15, 16, 17, 18, 19 & 21.

5
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 6 of 22

These emails demonstrate on their face a back-and-forth dialogue in furtherance of

Presidential decision-making. For example, these emails reflect deliberations of the

President and his National Security Council; guidance and clarifications provided by

Mr. Blair regarding the Ukraine matter that reflect his knowledge of Presidential

deliberations; Mr. Blair’s requests for information from OMB regarding the scope

and nature of aid to Ukraine; and the receipt of information from OMB to inform

Presidential deliberations. The nature and purpose of the emails with Mr. Duffey are

evident in the responses from Mr. Blair that indicate that the information will be used

in conversations with the President.

b. Six documents fall into the second category: emails authored by Mr. Duffey without

a response from Mr. Blair. See Doc. Nos. 6, 7, 8, 9, 10 & 20. These emails

demonstrate, on their face, either a request for information or the receipt of

information by Mr. Blair, but not both. For example, in two of the email exchanges,

Mr. Duffey stated directly that he was responding to a request for information from

Mr. Blair. To determine whether in each of these instances the receipt of information

was preceded by a solicitation, OMB’s Office of General Counsel staff consulted

with Mr. Duffey in the course of preparing this declaration to help fill the gaps not

reflected on the face of the emails. Mr. Duffey confirmed that Mr. Blair had

contacted OMB as early as June 2019 about the President’s interest in military

assistance to Ukraine and that Mr. Blair wanted to understand the nature, scope and

amount of assistance provided to Ukraine by the United States and other countries.

Mr. Duffey also said that it was his understanding that Mr. Blair wanted to be

regularly updated about these issues and that the communications between them were

not limited to emails, but also included telephone calls and in-person meetings. In

6
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 7 of 22

summary, some of the emails authored by Mr. Duffey contained information in

response to Mr. Blair’s desire to be regularly updated and in some circumstances Mr.

Duffey conveyed the information through other means such as a telephone call or in-

person meeting. Additionally, in one of the emails Mr. Duffey asks Mr. Blair a

question about Presidential decision-making that went unanswered. See Doc. No. 20.

In the conversation with Mr. Duffey in the course of preparing this declaration, Mr.

Duffey explained that the question in his email to Mr. Blair was part of their ongoing

communications over the summer of 2019 to keep Mr. Blair apprised of matters

relating to Ukraine.

22. Preserving the confidentiality of the communications between Mr. Blair and Mr. Duffey

is paramount to ensure that the President receives the type of information necessary to make

fully informed decisions. Particularly in this context, involving sensitive subjects of national

security and foreign aid, Mr. Blair relied on the ability to gather information from agency experts

in order to investigate and formulate the advice he was providing to the President. Even

knowing the content of the information sought by a White House advisor can expose the

confidentiality of the President’s deliberations. If the email exchanges between an Executive

Branch official and an immediate White House advisor on matters related to the advisor’s

responsibilities were to be publicly disclosed, this would stifle the future free flow information

and have a chilling effect on the sharing of frank and candid ideas and opinions that would

enable the advisor to formulate the best possible advice to the President, thereby impairing the

President’s ability to fully and faithfully carry out his duties. In sum, public disclosure of the

documents identified as subject to the Presidential Communications Privilege would greatly risk

harming the quality of the information and advice available to the President.

7
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 8 of 22

ROBERT BLAIR’S POSITION AND RELATIONSHIP TO THE PRESIDENT

23. On February 2, 2019, the President announced the appointment of Mr. Blair to serve as

Assistant to the President and Senior Advisor to the White House Chief of Staff. His official

duties and responsibilities included national security issues such as military assistance to

Ukraine. In his role as Assistant to the President, Mr. Blair was assigned an office on the first

floor of the West Wing, reflecting his close operational proximity to the President on matters

within his portfolio. He regularly briefed the President and participated in meetings with him on

subjects within his portfolio. To perform his duties for the President, Mr. Blair also gathered

information to develop and formulate his advice to the President. On December 23, 2019, Mr.

Blair assumed new responsibilities after the President appointed him as the Special

Representative for International Telecommunications Policy.

24. Assistants to the President are considered the most senior Presidential aides in the White

House. They often work in close proximity to the President, meet and travel with the President

frequently, and are tasked with obtaining information from Executive Branch agencies to inform

the President’s decision-making process. On average, there are approximately two dozen

Assistants to the President working in the White House.

DELIBERATIVE PROCESS PRIVILEGE

25. In addition to the Presidential Communications Privilege, OMB asserts the deliberative

process prong of Exemption 5 as to portions of certain documents insofar as they contain intra-

and interagency pre-decisional and deliberative opinions, advice, evaluations, deliberations,

proposals or recommendations concerning the scope, duration, and purpose of the hold on

military assistance to Ukraine, including the apportionment of funds. See Doc. Nos. 1-21.

26. As explained more fully below and on a document-by-document basis in the attached

Vaughn Index, the email communications reflect a series of back-and-forth exchanges in which

8
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 9 of 22

Mr. Duffey is sharing information with Mr. Blair in response to his requests, and where Mr. Blair

is responding to questions and providing guidance to Mr. Duffey on the scope and status of the

hold on funding to Ukraine. The emails are pre-decisional because Mr. Duffey and Mr. Blair

were discussing matters intended to be subsequently decided, and the information contained in

the emails is deliberative because it reflects the sharing of opinions, views and conversations

about deliberations that informed decisions regarding the use of security assistance funds for

Ukraine. Embedded within some of the emails are quoted email threads that reveals inter- and

intra-agency deliberative communications regarding ongoing Ukraine policy-making. The

disclosure of this information would have a chilling effect on both the exchange of information

and views between OMB and other Executive Branch agencies, including the White House, but

also the exchange of information and views within OMB. Additionally, disclosing such

confidential deliberations would undermine OMB’s ability to carry out its mission with respect

to other Federal programs across the Executive Branch.

27. OMB assists the President in carrying out his constitutional duty to “take Care that the

Laws be faithfully executed.” See U.S. Const. Art. II, Sec 3. As part of carrying out this duty,

the Executive Branch must ensure that Federal agencies spend appropriated funds in an efficient

and effective manner, consistent with the purpose for which the funds were appropriated. When

funds are appropriated by Congress, they are provided for particular purposes, for a specified

time period, and in a specified amount. Consistent with 31 U.S.C. §§ 1512 & 1513, OMB is

required to apportion funds appropriated for a definite period to ensure that they last for the

entirety of the period for which they were appropriated by Congress, and to apportion funds

appropriated for an indefinite period to achieve the most effective and economical use. Those

same laws expressly provide OMB with the authority to apportion funds for any time period

9
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 10 of 22

(e.g., days, months, quarters) or purpose authorized by the appropriation. Mr. Duffey’s email

exchanges with Mr. Blair helped inform decisions on OMB’s apportionment actions.

MICHAEL DUFFEY’S POSITION AND RESPONSIBILITIES

28. Michael Duffey has been the Associate Director for National Security Programs at OMB

since May 2019. In this position, Mr. Duffey oversees budget formulation and accounts for the

Department of Defense, the Department of State and Other International Programs, the National

Nuclear Security Administration, the Department of Veterans’ Affairs, and the Intelligence

Community. Mr. Duffey oversees OMB’s National Security and International Affairs Divisions,

and his portfolio includes matters concerning U.S. assistance to Ukraine, both security assistance

and non-military aid. As part of his official responsibilities, Mr. Duffey coordinates with the

White House and other Executive Branch officials on topics within his portfolio.

NO WAIVER OF PRIVILEGES

29. On November 16, 2019, OMB’s Deputy Associate Director for the National Security

Division Mark Sandy participated in a deposition under subpoena before a House

Committee. At the time, OMB informed Mr. Sandy’s private counsel by letter dated November

15, 2019, that it did not authorize Mr. Sandy to disclose potentially privileged information,

including classified information or information subject to executive privilege.

In accordance with 28 U.S.C. § 1746, I hereby declare and affirm under penalty of

perjury that the foregoing is true and correct to the best of my knowledge, information, and

belief, and that the accompanying Vaughn index and exhibits are true and correct.

Executed in Washington, District of Columbia, this 10th day of February, 2020.

Heather V. Walsh
Deputy General Counsel
Office of the General Counsel
Office of Management and Budget

10
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 11 of 22

EXHIBIT 1
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 12 of 22
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 13 of 22

EXHIBIT 2
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 14 of 22

From: MBX OMB FOIA


To: "Savage, Charlie"
Subject: RE: [EXTERNAL] NYT FOIA request
Date: Friday, September 27, 2019 5:37:00 PM

Greetings:  This email acknowledges receipt of your Freedom of Information Act (FOIA) request to
the Office of Management and Budget (OMB) dated and received in this office on September 26,
2019.  Your request has been logged in and is being processed.  For your reference, the OMB FOIA
number is 19-486.
 
Thank you,
Dionne Hardy
 
From: Savage, Charlie <savage@nytimes.com>
Sent: Thursday, September 26, 2019 9:41 PM
To: MBX OMB FOIA <MBX.OMB.FOIA@OMB.eop.gov>
Subject: [EXTERNAL] NYT FOIA request

Dear OMB FOIA officer,

Under the Freedom of Information Act, I request access to -- and declassification review of, as
necessary -- all email correspondence between Michael Duffey and Robert Blair from May 1
to the present.

I request a fee waiver because I am a member of the news media engaged in gathering
information for public education about an issue of public interest: to wit, the recent delay in
the release of a foreign aid package to Ukraine.

I prefer to receive the files electronically at this address. However, if you need to send them
physically for your internal procedures, my address is
c/o The New York Times
1627 I Street NW
Washington, DC 20006

Please do not hesitate to call if I can be of any help. Thank you for your assistance.

Charlie Savage
______________________

Charlie Savage
The New York Times

Desk: 202-862-0317
Mobile/Signal/WhatsApp: 202-369-6653
Twitter: @charlie_savage
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 15 of 22

EXHIBIT 3
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 16 of 22

The NewYorkTTmes
Company

Alexandra Perloff-Giles October 29, 2019


Legal Department

T2125567783

aperloffgiles@nytimes.com VIA EMAIL


620 8th Avenue
New York, NY 10018 Dionne Hardy, FOIA Officer
nytimes.com Office of Management and Budget
725 17th Street NW, Suite 9204
Washington, DC 20503
OMBFOIA@omb.eop.gov

Re: Appeal of Constructive Denial- 0MB FOIA # 19-486

Dear Ms. Hardy:

I am legal counsel to The New York Times Company and its reporter
Charlie Savage (jointly, "The Times").

On September 26, 2019, The Times submitted a Freedom of Information


Act (FOIA) request to the Office of Management and Budget ("OMB"),
seeking "access to - and declassification review of, as necessary - all
email correspondence between Michael Duffey and Robert Blair from
May 1 [2019] to the present." On September 27, 2019, 0MB
acknowledged receipt of the request and assigned it 0MB FOIA number
19-486. Since then, The Times has received no responsive records, nor
any further communications pertaining to this request.

Typically, an agency must make a determination regarding a FOIA request


within twenty business days. See 5 U.S.C. § 552(a)(6). That
determination must state whether the agency will comply with the request
and, if not, provide reasons for withholding any documents. See 5 U.S.C.
§ 552(a)(6)(A)(i). An agency nonresponse is considered a constructive
denial of the request. See, e.g., Campaign for Responsible
Transplantation v. FDA, 511 F.3d 187, 188 (D.C. Cir. 2007). More than
twenty business days have passed since The Times submitted its request.
OMB's failure to respond to The Times's FOIA request within the twenty
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 17 of 22

day statutory period constitutes a constructive denial, which The Times


hereby formally appeals.

We look forward to receiving responsive documents within twenty


business days of this appeal, as required under FOIA. See 5 U.S.C. §
552(a)(6)(A)(ii). If you have any questions, please feel free to contact me
at 212-556-7783 or aperloffgiles@nytimes.com.

Thank you in advance for your consideration.

Sincerely,

Alexandra Perloff-Giles

2
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 18 of 22

EXHIBIT 4
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 19 of 22
EXECUTIVE OFFICE OF THE PRESIDENT
OF F IC E OF M AN AG E M E NT A ND BU D G ET
WASHINGTON, D.C. 20503

January 3, 2020

Mr. Charlie Savage


The New York Times
1627 I Street NW
Washington, DC 20006

Sent via email: mccrad@nytimes.com

RE: New York Times Co. et al. v. Office of Management and Budget, 19-cv-03562 (DDC)

Dear Mr. Savage:

This is an interim response to your Freedom of Information Act (FOIA) request to the
Office of Management and Budget (OMB) received on September 26, 2019, seeking “all email
correspondence between Michael Duffey and Robert Blair from May 1 to the present.” OMB
assigned your FOIA request tracking number 2019-486.

In accordance with the Joint Status Report filed in this matter dated December 13, 2019,
OMB conducted a search for communications between Michael Duffey and Robert Blair from
May 1 to October 9, 2019, and identified a total of 20 responsive documents, consisting of 40
pages, excluding those not related to the Ukraine-matter. All 20 documents are being withheld
in full pursuant to FOIA Exemption 5, 5 U.S.C. § 552(b)(5). Exemption 5 protects both
deliberative and presidential communications, the disclosure of which would inhibit the frank
and candid exchange of views that is necessary for effective government decision-making.

Please note that because your request is in litigation, your administrative appellate rights
are now moot. If you have any questions about this interim response, please contact Rebecca
Cutri-Kohart at (202) 514-0265 or Rebecca.Cutri-Kohart@usdoj.gov.

Sincerely,

Dionne Hardy
FOIA Officer
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 20 of 22

EXHIBIT 5
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 21 of 22
New York Times v. OMB, 19-cv-03562 (DDC) Vaughn Index - DRAFT

Document Document ID Title Document Date Page People/Organizations People/Organizatio People/Organiz Presidential Communications Privilege Basis Deliberative Process Privilege Basis Exemption 6
No. Count From ns To ations CC Redaction(s)
1 12725 FW: From kinzinger 6/27/2019 2 "Duffey, Michael P. EOP/OMB" "Blair, Robert" N/A This email chain contains: (1) a response to Mr. Blair’s This email chain reveals information about how to Yes
EOP/WHO solicitation for information regarding U.S. military assistance respond to proposed legislation and contains a
to Ukraine, (2) a statement authored by Mr. Blair revealing discussion about the direction to take with respect to
the contents of Presidential deliberation, and (3) a request funding for Ukraine.
from Mr. Blair about how to respond to proposed legislation
on a certain matter.

2 12717 Re: Ukraine CN 7/12/2019 2 "Blair, Robert" EOP/WHO "Duffey, Michael P. N/A This email was authored by Mr. Blair and reveals the contents This email chain reveals information about ongoing Yes
EOP/OMB" of Presidential deliberation regarding funding for Ukraine. This discussions regarding the scope of the hold on
email was in response to a question from Mr. Duffey that was funding to Ukraine.
prompted by an inquiry from a representative of the State
Department.
3 37609 RE: This Afternoon 8/23/2019 2 "Blair, Robert" EOP/WHO "Duffey, Michael P. N/A This is an email chain in which Mr. Blair and Mr. Duffey This email chain reveals information about a National Yes
EOP/OMB" exchange information about a National Security Council Security Council meeting.
meeting.

4 37612 RE: This Afternoon 8/23/2019 2 "Duffey, Michael P. EOP/OMB" "Blair, Robert" N/A This email chain is a partial duplicate of Doc ID #37609 and This email chain reveals information about a National Yes
EOP/WHO reflects a continuation of the dialogue between Mr. Blair and Security Council meeting.
Mr. Duffey about a National Security Council meeting.

5 37614 RE: This Afternoon 8/23/2019 2 "Duffey, Michael P. EOP/OMB" "Blair, Robert" N/A This email chain is a partial duplicate of Doc ID #37609 and This email chain reveals information about a National Yes
EOP/WHO reflects a continuation of the dialogue between Mr. Blair and Security Council meeting.
Mr. Duffey about a National Security Council meeting.

6 36315 RE: ukraine 8/29/2019 2 "Duffey, Michael P. EOP/OMB" "Blair, Robert" "Scher, Adam" This email chain reflects the receipt of information by Mr. Blair This email chain reveals the information used to Yes
EOP/WHO EOP/OMB in connection with a Presidential policy decision-making inform the policy-making process about the scope
process involving funding to Ukraine. and duration of the hold on assistance to Ukraine.

7 36316 FY 2019 FMF Memo 9 - Tab 8 8/29/2019 3 N/A N/A N/A Attachment to Doc ID# 36315 containing information about This attachment consists of a proposed congressional N/A
Congressional Notification for the execution of the continuing hold on Ukraine security notification.
Ukraine.docx assistance funds.

8 36341 ukraine 8/29/2019 1 "Duffey, Michael P. EOP/OMB" "Blair, Robert" "Scher, Adam" This email is a partial duplicate of Doc ID # 36315 and This email chain reveals the information used to Yes
EOP/WHO EOP/OMB reflects the receipt of information by Mr. Blair in connection inform the policy-making process about the scope
with a Presidential policy decision-making process involving and duration of the hold on assistance to Ukraine.
funding to Ukraine.

9 36342 FY19 USAI 8/29/2019 3 N/A N/A N/A Attachment to Doc ID# 36341 containing information about This attachment contains sensitive and non-public N/A
Cases_08202019_1421.pptx the policy and status of Ukraine security assistance funds. information about the types of assistance provided to
Ukraine.

10 36343 Ukraine DSG 2019-07-26_v02_CLEAN 8/29/2019 3 N/A N/A N/A Attachment to Doc ID# 36341 containing information about This attachment contains sensitive and non-public N/A
(003).docx the policy and status of Ukraine security assistance funds. information about the types of assistance provided to
Ukraine.

11 39418 RE: [EXTERNAL] Pentagon wants 8/29/2019 3 "Duffey, Michael P. EOP/OMB" "Blair, Robert" N/A This email chain includes a response authored by Mr. Blair This email chain reveals information about ongoing Yes
Ukraine military aid to continue EOP/WHO revealing the contents of Presidential deliberation regarding discussions regarding the hold on funding to Ukraine.
funding for Ukraine. The response was prompted by a
question from Mr. Duffey.

Page 1 of 2
Case 1:19-cv-03562-ABJ Document 23-1 Filed 02/10/20 Page 22 of 22
New York Times v. OMB, 19-cv-03562 (DDC) Vaughn Index - DRAFT

Document Document ID Title Document Date Page People/Organizations People/Organizatio People/Organiz Presidential Communications Privilege Basis Deliberative Process Privilege Basis Exemption 6
No. Count From ns To ations CC Redaction(s)
12 7556 Re: Ukraine 8/30/2019 2 "Blair, Robert" EOP/WHO "Duffey, Michael P. "Fairweather, Rob This email chain reflects the soliciation and receipt of This email chain contains responses to questions and Yes
EOP/OMB" S. EOP/OMB" information by Mr. Blair, and it contains on its face a other deliberative information that fed into a policy-
"Sandy, Mark S. statement authored by Mr. Blair that the information provided decision making process about the scope and
EOP/OMB" > to him by Mr. Duffey will be used for discussion with the duration of the hold on funding to Ukraine.
"Scher, Adam" President.
EOP/OMB
"Vought, Russell
T. EOP/OMB"

13 39371 RE: Ukraine 8/30/2019 2 "Duffey, Michael P. EOP/OMB" "Blair, Robert" "Fairweather, Rob This email chain is a partial duplicate of Doc ID# 7556 and This email chain contains responses to questions and Yes
EOP/WHO S. EOP/OMB" contains the same privileged information as is described for other deliberative information that fed into a policy-
"Sandy, Mark S. that record. decision making process about the scope and
EOP/OMB" > duration of the hold on funding to Ukraine.
"Scher, Adam"
EOP/OMB
"Vought, Russell
T EOP/OMB"
14 39372 Ukraine Post 2014.pdf 8/30/2019 1 N/A N/A N/A Attachment to Doc ID# 39371 providing information that was This attachment contains sensitive and non-public N/A
solicited and recieved by Mr. Blair regarding Ukraine security information about assistance provided to Ukraine.
assistance funds.

15 39373 Military Assistance to Ukraine 2014- 8/30/2019 1 N/A N/A N/A Attachment to Doc ID# 39371 providing information that was This attachment contains sensitive and non-public N/A
2016.docx solicited and recieved by Mr. Blair regarding Ukraine security information about assistance provided to Ukraine.
assistance funds.

16 39409 FW: Ukraine 8/30/2019 2 "Duffey, Michael P. EOP/OMB" "Blair, Robert" N/A This email chain contains: (1) a request for information from This email chain contains questions and other Yes
EOP/WHO Mr. Blair regarding assistance to Ukraine, (2) a statement deliberative information that fed into a policy-
authored by Mr. Blair revealing internal discussions about decision making process about the scope and
Presidential deliberations, and (3) a request from Mr. Blair to duration of the hold on funding to Ukraine.
speak by phone.

17 39411 20190830153952719.pdf 8/30/2019 4 N/A N/A N/A Attachement to Doc ID# 39409 providing information that This attachment contains esimated figures about N/A
was solicited and recieved by Mr. Blair regarding Ukraine assistance provided to Ukraine.
security assistance funds.

18 30634 RE: Ukraine 9/3/2019 3 "Duffey, Michael P. EOP/OMB" "Blair, Robert" "Vought, Russell This email chain is a partial duplicate of Doc ID# 7556 and This email chain contains responses to questions and Yes
EOP/WHO T. EOP/OMB" contains the same privileged information as is described for other deliberative information that fed into a policy-
that record. decision making process about the scope and
duration of the hold on funding to Ukraine.

19 32769 RE: Updates 9/4/2019 1 "Blair, Robert" EOP/WHO "Duffey, Michael P. N/A This email was authored by Mr. Blair and responds to This email chain reveals information about a National Yes
EOP/OMB" information provided to him by Mr. Duffey in connection with Security Council meeting.
a Presidential policy decision-making process.

20 30597 USAI 9/6/2019 1 "Duffey, Michael P. EOP/OMB" "Blair, Robert" N/A This email was authored by Mr. Duffey and seeks information This email chain contains information about the hold Yes
EOP/WHO from Mr. Blair about Presidential decision-making. on assistance to Ukraine.

21 N/A RE: Two Follow-Up Questions 7/18/2019 1 Blair, Robert B. Duffey, Michael P. N/A This email chain includes a communication authored by Mr. This email chain contains discussions about the Yes
Blair conveying information to Mr. Duffey that reflects duration and purpose of the hold on assistance to
Presidential decision-making. The email also discusses Ukraine.
another topic unrelated to Ukraine.

Page 2 of 2
Case 1:19-cv-03562-ABJ Document 23-2 Filed 02/10/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
____________________________________
)
THE NEW YORK TIMES COMPANY and )
CHARLIE SAVAGE, )
)
Plaintiffs, )
)
v. ) Case No. 19-cv-03562 (ABJ)
)
OFFICE OF MANAGEMENT AND )
BUDGET )
)
Defendant. )
____________________________________ )

PROPOSED ORDER

Upon consideration of Plaintiffs’ motion for summary judgment and Defendant’s cross-motion for

summary judgment, and the parties’ submissions related thereto, it is hereby ORDERED that

Plaintiffs’ motion for summary judgment is DENIED and that Defendant’s motion for summary

judgment is GRANTED. Plaintiffs’ claims are DISMISSED WITH PREJUDICE.

Final judgment is entered in favor of Defendant.

Date: ____________________________________
Amy Berman Jackson
United States District Judge