FOIA Request Denied

The United States Court of Appeals for the District of Columbia Circuit applied the presidential communications privilege to reject a FOIA demand 

On March 7, 2021, shortly after President Biden took office, he issued Executive Order 14019, Promoting Access to Voting, 86 Fed. Reg. 13623 (Mar. 7, 2021). The Order states that “[i]t is the policy of my Administration to promote and defend the right to vote for all Americans who are legally entitled to participate in elections.” Id. at 13623. Section 3 of the Order instructs agencies to “consider ways to expand citizens’ opportunities to register to vote and to obtain information about, and participate in, the electoral process.” Id. It then directs the “head of each agency” to “evaluate ways in which the agency can, as appropriate and consistent with applicable law, promote voter registration and voter participation.” Id. The key provision at issue here, Section 3(b), then requires each agency to submit to the Assistant to the President for Domestic Policy a “strategic plan outlining the ways identified under this review that the agency can promote voter registration and voter participation.” Id. at 13624. The plans were due within 200 days of the date of the Order. Id. 3

After that deadline, America First Legal Foundation (AFL) submitted Freedom of Information Act (FOIA) requests for the strategic plans of fourteen different agencies.1 FOIA requires federal agencies to make their records available to the public, subject to nine exemptions for specific categories of material. 5 U.S.C. § 552(a)–(b).

Rejected

The presidential communications privilege protects documents “that reflect presidential decision-making and deliberations and that the President believes should remain confidential.” In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997). The privilege reflects the idea that the “President and those who assist him must be free 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.” United States v. Nixon, 418 U.S. 683, 708 (1974). The Supreme Court has explained that the privilege is “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” Id.

Because the President necessarily relies on others to fulfill his constitutional role, we have held that the privilege must extend to documents “solicited and received” not just by the President, but also by “immediate White House advisers with broad and significant responsibility for investigating and formulating the advice to be given the President.” Loving, 550 F.3d at 37 (cleaned up) (quoting Jud. Watch, Inc. v. DOJ, 365 F.3d 1108, 1114 (D.C. Cir. 2004) (Judicial Watch I)); see In re Sealed Case, 121 F.3d at 750–52. Thus, any material that an agency submitted to the Office of the President may retain its privileged status even if it “traveled up the chain of command before the President received it.” Loving, 550 F.3d at 40; see Judicial Watch I, 365 F.3d at 1117. Further, where the privilege is properly invoked, it “applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.” In re Sealed Case, 121 F.3d at 745.

(Mike Frisch)