Appeals from the United States District Court for the District of Columbia (No. 01cv00639) (No. 01cv00720)
Before: Henderson, Randolph and Rogers, Circuit Judges.
The opinion of the court was delivered by: Rogers, Circuit Judge
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
Dissenting opinion filed by Circuit Judge RANDOLPH.
In In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), the court, in considering a grand jury subpoena for White House documents relating to an investigation of the former Secretary of Agriculture, reviewed the history of the executive privilege doctrine, and the nature and principles underlying two privileges falling within that doctrine. We apply that analysis in deciding whether, under Exemption 5 of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(b)(5), the presidential communications privilege extends into the Justice Department to internal pardon documents in the Office of the Pardon Attorney and the Office of the Deputy Attorney General that were not "solicited and received," id. at 752, by the President or the Office of the President.*fn1 In refusing to release certain documents in response to Judicial Watch's FOIA requests, the Deputy Attorney General, to whom the Attorney General has delegated his pardon duties, invoked the deliberative process privilege. However, in moving for summary judgment, the Department also relied on the presidential communications privilege. On appeal, Judicial Watch contends that the district court erred in extending the presidential communications privilege to these internal Department documents. We agree, and accordingly we reverse, in part, the grant of summary judgment to the Department and remand the case for the district court to determine whether the Department's internal documents not "solicited and received" by the President or the Office of the President are protected from disclosure under the deliberative process privilege. We affirm the grant of summary judgment to the Department on the documents withheld under FOIA Exemption 6, and on Judicial Watch's request for a blanket waiver of FOIA processing fees.
In January and February 2001, Judicial Watch filed two FOIA requests for documents from the Justice Department. One request was to the Office of the Pardon Attorney, and the other was to the Office of the Deputy Attorney General. In each FOIA request, Judicial Watch sought release of "[a]ny and/or all [p]ardon [g]rants" by former President Clinton in January 2001, and "[a]ny and/or all pardon applications considered" by former President Clinton.*fn2 Judicial Watch's request for expedited processing under 28 C.F.R. § 16.5(d)(1)(iv), was denied, and the Department began releasing documents in February 2001, including some without prepayment of the FOIA processing fee. See 28 C.F.R. § 16.11(i)(2). Although it released thousands of pages of documents, the Department withheld 4,341 pages pursuant to FOIA Exemption 5, see 5 U.S.C. § 552(b)(5), and, to the extent these pages contained personal information about living individuals, pursuant to FOIA Exemption 6. Id. § 552(b)(6). The Department separately withheld another 524 pages under Exemption 6.
The withheld documents are described by the Department in a Vaughn Index*fn3, which organizes the records into 34 categories and specifies the particular privileges invoked for each document, with the presidential communications privilege and deliberative process privileges invoked either in full or in part. The 4,341 documents withheld under both the presidential communications and deliberative process privileges, either in full or in part, can be grouped into several broad categories. For instance, a number of withheld documents consist of letters and reports from the Deputy Attorney General to the President, advising the President on individual pardon petitions. See Vaughn Index 5, 19, 32. A second group of withheld documents consist of communications between the Department and the White House Counsel's Office concerning pending pardon applications, and communications between the White House Counsel and the President discussing the Department's recommendations. See id. 3, 16, 18, 26. A third broad category of documents are proposed recommendations for the Deputy Attorney General's consideration, which were authored by the Deputy Attorney General's staff or the Pardon Attorney. See id. 1, 10, 11, 13, 14, 27, 28. A fourth category consists of internal communications and working documents among and between the Deputy's Office and the Pardon Attorney, such as memoranda from the Deputy's staff to the Pardon Attorney inquiring about specific pardon applications and requesting that certain pardon recommendations be modified or resubmitted to the Deputy. See id. 2, 4, 7, 20, 21, 22, 25, 29, 30. A fifth category consists of communications with and documents received from other agencies and departments in the course of preparing the Deputy's pardon recommendations for the President, such as FBI memoranda on background investigations. See id. 17, 23, 33. Other documents are either miscellaneous lists or drafts or are difficult to categorize because they appear to be internal departmental memoranda but actually incorporate specific recommendations the Deputy had submitted for the President. See id. 6, 8, 9, 12, 15, 19, 24, 31. With the exception of category 34 -- involving 524 documents, which the Department withheld under Exemption 6, consisting of pardon petitions and letters to or from pardon applicants and their counsel and supporters --the Department posits that all of these documents fall under the purview of the presidential communications privilege.
In March and April 2001, Judicial Watch sued the Department to enforce the FOIA requests and to challenge the denial of a blanket waiver of FOIA processing fees. The district court consolidated the cases, and the Department moved for summary judgment. The district court agreed with the Department that all 4,341 pages were properly withheld under the presidential communications privilege pursuant to Exemption 5. Rejecting Judicial Watch's position that the privilege does not apply to documents not involving White House staff, the district court concluded that because the materials had been produced for the "sole" function of advising the President on a "quintessential and non-delegable Presidential power," the extension of the presidential communications privilege to internal Justice Department documents was justified. The district court also agreed that the Department had properly withheld 524 pages of documents, consisting primarily of individual petitions for pardons, under Exemption 6. Upon reconsideration, the court also granted the Department's motion for summary judgment on the fee waiver request, finding that Judicial Watch had failed to show that the FOIA requests were likely to contribute significantly to the public interest.
On appeal, Judicial Watch challenges the district court's rulings under Exemptions 5 and 6 and the denial of the blanket waiver of FOIA fees. Our review of the grant of summary judgment is de novo. See Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003); Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 774 (D.C. Cir. 2002); Nation Magazine v. United States Customs Serv., 71 F.3d 885, 889 (D.C. Cir. 1995). We address Exemption 5 in Part II, Exemption 6 in Part III, and the fee waiver in Part IV.
This FOIA case calls upon the court to strike a balance between the twin values of transparency and accountability of the executive branch on the one hand, and on the other hand, protection of the confidentiality of Presidential decisionmaking and the President's ability to obtain candid, informed advice. In striking this balance, the court must determine the contours of the presidential communications privilege with respect to the President's pardon power under Article II, Section 2, of the Constitution in light of the organization of the executive branch with regard to pardon applications, investigations, and recommendations. One view, advocated by the Department, is that protection of the institution of the Presidency requires that the presidential communications privilege apply to all documents authored by any executive branch agency employee that are generated in the course of preparing pardon recommendations for the President. The district court adopted this functional approach, finding that the presidential communications privilege applied to the requested documents because the Pardon Attorney's "sole" responsibility was to advise the President on pardon applications. Under this approach, the Pardon Attorney is, in effect, a White House adviser, rendering the presidential communications privilege applicable to all pardon-related documents notwithstanding the location and staff function of the Pardon Attorney in the Justice Department.
Another view, espoused by Judicial Watch, is that, in harmony with the FOIA's purpose, the principles underlying the presidential communications privilege limit its reach to documents and other communications "solicited and received" by the Office of the President, and thus do not extend to agency documents that are not submitted for Presidential consideration. Under this view, which we endorse, internal agency documents that are not "solicited and received" by the President or his Office are instead protected against disclosure, if at all, by the deliberative process privilege. We begin our analysis with the FOIA statute and then turn to the presidential communications privilege and the organization of the pardon process in the executive branch.
The FOIA directs that "each agency, upon any request for records . . ., shall make the records promptly available to any person" for "public inspection and copying," unless the records fall within one of the exclusive statutory exemptions. See 5 U.S.C. §§ 552(a)(2) & (a)(3)(A). There is, however, a built-in presidential communications privilege for records in the possession of, or created by, immediate White House advisers, who are not considered an agency for the purposes of FOIA. See supra note 1. The FOIA amended the public disclosure section of the Administrative Procedure Act, 5 U.S.C. § 1002, which had been viewed, for a variety of reasons, as "falling short" of the disclosure goals of the statute. EPA v. Mink, 410 U.S. 73, 79 (1973). The Supreme Court has long recognized that Congress' intent in enacting FOIA was to implement "a general philosophy of full agency disclosure." United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754 (1989)(quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976)). The Supreme Court has explained that,
Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands.
Mink, 410 U.S. at 80. In weighing opposing interests, Congress has instructed that "[s]uccess lies in providing a workable formula that encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure." S. Rep. No. 813, p. 3, quoted in Mink, 410 U.S. at 80. Accordingly, FOIA's exemptions are to be narrowly construed. See United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989); Rose, 425 U.S. at 361. See also 5 U.S.C. § 552(d); Bristol-Myers Co. v. FTC, 424 F.2d 935, 938 (D.C. Cir. 1970), cert. denied, 400 U.S. 824 (1970).
FOIA Exemption 5 allows the government to withhold "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." 5 U.S.C. § 552(b)(5). This language has been interpreted as protecting against disclosure those documents normally privileged in the civil discovery context. See Mink, 410 U.S. at 91. This includes documents protected under the executive privilege doctrine. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 n.16 & 150 (1975). As described in In re Sealed Case, 121 F.3d at 737, the deliberative process privilege under Exemption 5 protects "confidential intraagency advisory opinions" and "materials reflecting deliberative or policy-making processes." Mink, 410 U.S. at 86, 89 (citations omitted). It rests on the policy of protecting the "decision making processes of government agencies," Sears Roebuck, 421 U.S. at 150 (citations omitted), with the "ultimate purpose [being] to prevent injury to the quality of agency decisions." Id. at 151. Materials that are "predecisional" and "deliberative" are protected, while those that "simply state or explain a decision the government has already made or protect material that is purely factual" are not. In re Sealed Case, 121 F.3d at 737. The deliberative process privilege, however, is qualified and can be overcome by a sufficient showing of need. See id.
Exemption 5 also has been construed to incorporate the presidential communications privilege. See Sears Roebuck, 421 U.S. at 149 n.16 & 150. In United States v. Nixon, 418 U.S. 683, 708 (1974) (" Nixon I "), which involved a grand jury subpoena for tape recordings of President Nixon's conversations in the Oval Office, the Supreme Court instructed that there is "a presumptive privilege for Presidential communications," which is "fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution." Later, in Nixon v. Adm'r of Gen. Serv., 433 U.S. 425, 449 (1977) (" Nixon II "), in addressing the President's challenge to a statute providing for screening by government archivists of his papers and recorded conversations, the Supreme Court emphasized Nixon I 's holding that "the privilege is limited to communications `in performance of (a President's) responsibilities,' `of his office,' and made `in the process of shaping policies and making decisions.' " (citations omitted). As analyzed by this court in In re Sealed Case, 121 F.3d at 744, "[t]he President can invoke the privilege when asked to produce documents or other materials that reflect presidential decisionmaking and deliberations and that the President believes should remain confidential." Unlike the deliberative process privilege, which is a general privilege that applies to all executive branch officials, the presidential communications privilege is specific to the President and "applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones." Id. at 745. The presidential communications privilege thus is a broader privilege that provides greater protection against disclosure, although it too can be overcome by a sufficient showing of need. See id. at 746.
Although Judicial Watch contends that the presidential communications privilege was not properly invoked, see In re Sealed Case, 121 F.3d at 744-45 n.16; Center on Corp. Responsibility, Inc. v. Shultz, 368 F. Supp. 863, 872-73 (D.D.C. 1973); United States v. Burr, 25 F. Cas. 187, 192 (C.C.Va. 1807)(No. 14,694), the court need not address the issue because Judicial Watch has waived this challenge by failing to raise it in the district court. See Singleton v. Wulff, 428 U.S. 106, 120 (1976); Amax Land Co. v. Quarterman, 181 F.3d 1356, 1369 (D.C. Cir. 1999). See also Soucie v. David, 448 F.2d 1067, 1071 (D.C. Cir. 1971). Unlike in In re Sealed Case, 121 F.3d at 744-45 n.16, where the affidavit of the White House Counsel stated that he was specifically authorized by the President to invoke the presidential communications privilege, the White House Counsel's declaration here includes no such statement and there is no other indication that the President has invoked the ...