FOIA And The Presidential Privilege
In a recent federal case, Judge Ellen Huvelle from the D.C. District Court has some excellent legal analysis regarding when the Presidential Communications Privilege applies, and when it does not.
In 2010, the Obama administration issued a policy document called Presidential Policy Directive on Global Development (the “PPD-6”). This was a diplomatic document that “purports to communicate policy relevant to national security and foreign relations topics.” It was distributed to a number of federal agencies, including the Dep’t of State, USAID, It was widely distributed throughout the Executive Branch beyond the White House.
An organization called the Center for Effective Government made a FOIA request seeking the PPD-6, and was denied. They later sued to get the document. However, the Government claims the PPD-6 is protected under something called “Exemption 5,” which is the exemption in FOIA related to presidential communications.
While the PPD-6 appears to have been distributed on a need-to-know basis, the fact remains that the Presidential Communications Privilege does not protect every document that comes from the President’s desk. The court summed up the relevant law:
The presidential communications privilege is a “presumptive privilege for [p]residential communications,” United States v. Nixon, 418 U.S. 683, 708 (1974), that “preserves the President’s ability to obtain candid and informed opinions from his advisors and to make decisions confidentially.” Loving, 550 F.3d at 37; see also In re Sealed Case, 121 F.3d 729, 750 (D.C. Cir. 1997) (“[T]he privilege itself is rooted in the need for confidentiality to ensure that presidential decisionmaking is of the highest caliber, informed by honest advice and full knowledge.” (emphasis added)). The privilege protects those “documents or other materials that reflect presidential decisionmaking and deliberations and that the President believes should remain confidential,” and, once the privilege is invoked, the documents become presumptively privileged. In re Sealed Case, 121 F.3d at 744. Further, unlike the deliberative process privilege, which is also encompassed under Exemption 5, the presidential communications privilege “applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.” Id. at 745.
The privilege also protects:
communications authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.
The emphasized text is important. Because the PPD-6 was distributed beyond the immediate White House Advisors’ staff, it can’t reasonably be construed to be covered by the Presidential Communications Privilege—particularly since FOIA exemptions are supposed to be interpreted narrowly:
The scope of the privilege is to be “construed as narrowly as is consistent with ensuring that the confidentiality of the President’s decision-making process is adequately protected.”Judicial Watch, 365 F.3d at 1116 (quoting In re Sealed Case, 121 F.3d at 752); see also Abramson, 456 U.S. at 630 (“FOIA exemptions are to be narrowly construed.”). As such, it “only applies to communications that … advisers and their staff author or solicit and receive in the course of performing their function of advising the President on official government matters” and does not generally “extend to staff outside the White House in executive branch agencies.”In re Sealed Case, 121 F.3d at 752; see also Judicial Watch, 365 F.3d at 1116. “[T]here is, in effect, a hierarchy of presidential advisers such that the demands of the privilege become more attenuated the further away the advisers are from the President operationally.” Judicial Watch, 365 F.3d at 1115
Accordingly, Judge Huvelle found that the PPD-6 was not protected by the Presidential Communications Privilege, and ordered the Government to make it available for inspection.
While this decision is a win for government transparency, one wonders what the Executive Branch’s reaction to this will be. Will they start defensively classifying everything that comes from the President’s desk? Such an approach would be inconsistent with FOIA, of course. But not everybody has the time or effort to litigate each time the Government classifies a document.
On the other hand, nothing is really being lost here. Had the court gone the other way, we would still not have access to the PPD-6, and the scope of the privilege would have been increased as a matter of law—a decidedly undesirable result.
Nonetheless,the court’s decision does a good job of explaining when something is supposed to be privileged under FOIA and when it isn’t. Useful information for anyone trying to figure out what the Executive Branch is up to.