Brennan Center For Justice At New York University School Of Law v. United…

Background

The Brennan Center brought this action under the Freedom of Information Act, a federal law requiring disclosure of agency records unless a statutory exemption applies. It sought records referenced in President Trump’s September 24, 2017 proclamation restricting entry by individuals from certain countries, as well as reports about countries’ information-sharing and vetting capabilities.

The State Department identified five responsive records: a July 9, 2017 report and two attachments, and a September 15, 2017 memorandum and one attachment. The Center no longer sought the July 9 report because the government had produced it as part of a settlement in unrelated litigation. The four remaining records were Attachments A and B to the July 9 report, the September 15 memorandum, and Attachment A to that memorandum.

The Department withheld the records in full under the presidential-communications privilege within FOIA Exemption 5. It also claimed that portions were protected by the deliberative-process privilege, the classified-information exemption, and the law-enforcement-techniques exemption. The Department moved for summary judgment, arguing that its search was adequate and that the records were exempt. The Center cross-moved for partial summary judgment, arguing that the presidential-communications privilege did not apply and that the record did not support the other claimed exemptions.

Adequacy of the Search

The court held that the State Department’s search was adequate. The Department searched the classified email account of the State Department’s Office of Visa Services using the terms “20 Day Report” and “50 Day Report” for the period from January 26 through October 1, 2017. The search located the five records, and Department officials who had worked on the records verified that they were the full and final versions and that no other responsive records existed within the scope of the request.

The Center argued that the Department should have located additional country reports. The court rejected that argument, explaining that the adequacy of a FOIA search depends on whether the methods were reasonably calculated to find responsive records, not on whether the search found every document the requester believed should exist. The court therefore granted the Department’s motion for summary judgment on the adequacy of the search.

FOIA Exemptions

The court conducted an in-camera review, meaning it examined the withheld records privately. It concluded that Attachments A and B to the July 9 report were protected by the presidential-communications privilege and FOIA Exemption 1, which covers properly classified information whose disclosure is authorized to be kept secret for national defense or foreign-policy reasons. The court found that the privilege had not been waived by earlier disclosures and that revealing the classified information could cause serious damage to national security and harm important relationships with other countries.

The court divided the September 15 memorandum into two portions. It held that the first three pages were not exempt. Those pages contained general background information, the Department had not asserted a specific exemption for them, and the information had already been disclosed in other public documents. The court ordered those pages disclosed to the Center within ten days.

The court held that the remaining pages of the September 15 memorandum were protected by the presidential-communications privilege and FOIA Exemption 1. It also held that Attachment A to that memorandum was protected by both exemptions. The court found no basis to require additional disclosure from those records.

Segregability and Disposition

FOIA requires an agency to release reasonably separable nonexempt portions of a record. After reviewing the records, the court found that no additional meaningful information could be separated from the exempt material without revealing information the law protects.

The court granted in part and denied in part the State Department’s motion for summary judgment and granted in part and denied in part the Brennan Center’s cross-motion for summary judgment. Specifically, Attachments A and B to the July 9 report were not subject to disclosure; the first three pages of the September 15 memorandum had to be disclosed within ten days, while the remainder was not subject to disclosure; and Attachment A to the September 15 memorandum was not subject to disclosure. The Clerk was directed to enter judgment and close the case.