CREW v. DOJ: Re: Valerie Plame: 10/10/08 - DOJs Motion For Summary Judgment

Case 1:08-cv-01468-EGS Document 8 Filed 10/10/2008 Page 1 of 24
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON, )
)
Plaintiff )
) No. 1:08-cv-01468 (EGS)
v. ) Hon. Emmet G. Sullivan
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
____________________________________ )
UNITED STATES DEPARTMENT OF

JUSTICE’S MOTION FOR SUMMARY JUDGMENT
Defendant hereby moves pursuant to Fed. R. Civ. P. 56 for summary judgment.
The grounds for this motion for summary judgment are set forth in the memorandum submitted
herewith.
October 10, 2008 Respectfully submitted,
GREGORY G. KATSAS
Assistant Attorney General
JEFFREY A. TAYLOR
United States Attorney
JOHN TYLER
Senior Trial Counsel
/s/ Jeffrey M. Smith

JEFFREY M. SMITH (D.C. Bar # 467936)
Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW,
Washington, D.C. 20530
Tel: (202) 514-5751
Fax: (202) 616-8202
Counsel for Defendant



)
Plaintiff )
) No. 1:08-cv-01468 (EGS)
)
)
Defendant. )
____________________________________ )
UNITED STATES DEPARTMENT OF JUSTICE’S MEMORANDUM

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
GREGORY G. KATSAS
JEFFREY A. TAYLOR
JOHN TYLER

Room 7144
Tel: (202) 514-5751
Fax: (202) 616-8202

TABLE OF CONTENTS
PAGE
BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. The Records Are Exempt from Disclosure Pursuant to FOIA

Exemption 7(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
II. The Records Are Exempt from Disclosure Pursuant to FOIA

Exemption 5.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. The Records Are Protected in Their Entirety by the Law Enforcement

Investigatory Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
B. Portions of the Records Are Protected by the

Deliberative Process Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
C. Portions of the Records Are Protected by the

Presidential Communications Privilege.. . . . . . . . . . . . . . . . . . . . . . . . . . 13
III. Portions of the Records are Exempt from Disclosure Pursuant to

Exemptions 6 and 7(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
IV. Portions of the Records Are Exempt from Disclosure Pursuant to

Exemption 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
V. Portions of the Records Are Exempt from Disclosure Pursuant to

Exemption 3.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
The records at issue in this Freedom of Information Act (“FOIA”) case are law
enforcement documents whose release the Attorney General has determined could compromise
the integrity and effectiveness of a class of law enforcement investigations. Morever, the records
contain descriptions of confidential deliberations among top White House officials which are
protected by the deliberative process and presidential communications privileges. For these and
other reasons, the documents are exempt from production under the Freedom of Information Act
(“FOIA”), and summary judgment should be granted in favor of the Department of Justice.
BACKGROUND
In June 2008, the House of Representatives Committee on Oversight and Government
Reform sought, by way of subpoena, reports of voluntary interviews of the Vice President and
senior White House staff by Special Counsel Patrick Fitzgerald as part of his investigation into
the disclosure of Valerie Plame Wilson’s identity as a CIA employee. See Declaration of Steven
G. Bradbury ¶ 3. The Office of Legal Counsel (“OLC”) of the Department of Justice (“DOJ”)
assembled documents responsive to this subpoena. Id.
Portions of the subpoenaed interview reports describe confidential internal White House
deliberations among senior presidential advisers, including the Vice President, the White House
Chief of Staff, and the National Security Adviser concerning, among other things, the preparation
of the President’s January 2003 State of the Union Address, possible responses to inquiries about
the accuracy of a statement in the President’s address, and the decision to send Ms. Plame’s
husband, Ambassador Joseph Wilson, on a fact-finding mission to Niger in 2002. Id.
Prior to the subpoena, DOJ had, in an effort to accommodate the Committee’s
investigation, made available to the Committee staff for their review reports of interviews with
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senior White House staff. See id. ¶ 3 n.1; id. Ex. B, at 1-2; Complaint ¶ 22; Answer ¶ 22. DOJ
did not provide the Committee access to the report or notes of the interview of the Vice President
(or of the President), because that request raised “heightened separation of powers concerns.”
Bradbury Decl. Ex. B., at 2.
After receiving the subpoena, “[b]ased on his concern that disclosure to Congress of the
subpoenaed interview reports would risk impairing the effectiveness of future law enforcement
investigations involving official White House conduct” and “in order to protect the
confidentiality of the high-level White House deliberative information contained in the reports,
the Attorney General requested that the President assert executive privilege in response to the
Committee’s subpoena.” Bradbury Decl. ¶ 4. In doing so, the Attorney General explained how
the documents were protected by the presidential communications, deliberative process, and law
enforcement components of executive privilege. Id. Ex. B. The Attorney General emphasized
that releasing the documents could deter future Presidents, Vice Presidents, and senior White
House staff from cooperating voluntarily with future DOJ investigations involving the White
House. Id. The President asserted executive privilege, and the Committee was notified on July
16, 2008. Id. Ex. C.
By letter dated July 17, 2008, Plaintiff Citizens for Responsibility and Ethics in
Washington (“CREW”) submitted a Freedom of Information Act request to DOJ’s Office of
Information of Privacy (“OIP”), the office that handles FOIA requests to, inter alia, the Offices
of the Attorney General and Deputy Attorney General. Exhibit 1 (Letter from Anne Weismann
to Carmen Mallon). CREW’s request sought “transcripts, reports, notes and other documents
relating to any interviews outside the presence of the grand jury of Vice President Richard B.
2
Cheney that are part of Special Counsel Patrick Fitzgerald’s investigation into the leak of the
identity of Valerie Plame Wilson.” Id. at 1. CREW’s letter noted that this request was
“coextensive with the subpoena issued by the House of Representatives Committee on Oversight
and Government Reform to Attorney General Michael B. Mukasey on June 16, 2008, for the
same records concerning Vice President Cheney.” Id.
After an initial search, OIP determined that the documents responsive to CREW’s
request, which had previously been collected in response to the House Committee subpoena,
were not within either the Office of the Attorney General or the Office of the Deputy Attorney
General, but were within the possession of the Office of Legal Counsel, a DOJ component that
handles its own FOIA requests. As a result, on September 4, 2008, OIP referred CREW’s
request to OLC. See Bradbury Decl. Ex. D. On September 18, 2008, OLC responded to
CREW’s request. See id. Ex. E. OLC found that three documents totaling 67 pages were
responsive to the request. Id. OLC found that the records were exempt from production
pursuant to FOIA Exemption 7(A) because they “were compiled for law enforcement purposes
and their production ‘could reasonably be expected to interfere with enforcement proceedings.’”
Bradbury Decl. Ex. E (quoting 5 U.S.C. § 552(b)(7)(A)).
OLC also withheld the documents because OLC found that each was subject to the
deliberative process privilege, the presidential communications privilege, and the law
enforcement investigative privilege. Id.; see also 5 U.S.C. § 552(b)(5). Finally, OLC withheld
portions of each document because these portions contain material that is classified and protected
from disclosure by the National Security Act. Id.
3
ARGUMENT
FOIA’s “basic purpose” reflects a “general philosophy of full agency disclosure unless
information is exempted under clearly delineated statutory language.” John Doe Agency v. John
Doe Corp., 493 U.S. 146, 152 (1989). “Congress recognized, however, that public disclosure is
not always in the public interest.” CIA v. Sims, 471 U.S. 159, 166-67 (1985). Thus, FOIA is
designed to achieve a “workable balance between the right of the public to know and the need of
the Government to keep information in confidence to the extent necessary without permitting
indiscriminate secrecy.” John Doe, 493 U.S. at 152 (quoting H.R. Rep. No. 1497, 89th Cong., 2
Sess. 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2416, 2423). To that end, FOIA mandates
disclosure of government records unless the requested information falls within one of nine
enumerated exceptions. See 5 U.S.C. § 552(b). “A district court only has jurisdiction to compel
an agency to disclose improperly withheld agency records,” i.e., records that do “not fall within
an exemption.” Minier v. CIA, 88 F.3d 796, 803 (9th Cir. 1996) (emphasis by the court).
Despite the “liberal congressional purpose” of FOIA, the statutory exemptions must be given
“meaningful reach and application.” John Doe, 493 U.S. at 152. “Requiring an agency to
disclose exempt information is not authorized.” Minier, 88 F.3d at 803 (quoting Spurlock v. FBI,
69 F.3d 1010, 1016 (9th Cir. 1995)). This meaningful reach and application is particularly
important here, given the separation of powers issues inherent in a request from a civil litigant for
an Order from the judiciary requiring the Executive Branch to release of documents relating
directly to the President and/or Vice President.
Under FOIA, the Court conducts a de novo review to determine whether the government
properly withheld records under any statutory exemption. See 5 U.S.C. § 552(a)(4)(B). The
4
government may satisfy its burden of justifying non-disclosure of materials by submitting an
agency declaration that describes the withheld material with reasonable specificity and the
reasons for non-disclosure, and, if necessary, a Vaughn index. See United States Dep’t of Justice
v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 753 (1989); Summers v.
Department of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998); Armstrong v. Exec. Office of the
President, 97 F.3d 575, 577-78 (D.C. Cir. 1996). With respect to any record subject to such
overlapping claims of exemption, this Court need only find any one Exemption applicable in
order to grant summary judgment to the Department. See Fund for Constitutional Gov’t v. Nat’l
Archives and Records Serv., 656 F.2d 856, 864 n.19 (D.C. Cir. 1981).
The declarations submitted by the agency are accorded a presumption of good faith,
SafeCard Servs., Inc. v. Securities and Exchange Comm’n, 926 F.2d 1197, 1200 (D.C. Cir.
1991), and a presumption of expertise, Piper v. United States Dep’t of Justice, 294 F. Supp. 2d
16, 20 (D.D.C. 2003). Summary judgment is to be freely granted where, as here, the declarations
reveal that there are no material facts genuinely at issue and that the agency is entitled to
judgment as a matter of law. See Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 314-15 (D.C.
Cir. 1988); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Summary
judgment is accordingly the procedural vehicle by which most FOIA actions are resolved. See,
e.g., Misciavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) (“Generally, FOIA cases should be
handled on motions for summary judgment, once the documents in issue are properly
identified.”).
5
I. The Records Are Exempt from Disclosure Pursuant to FOIA Exemption 7(A)
FOIA Exemption 7(A) authorizes the withholding of “records or information compiled
for law enforcement purposes . . . to the extent that production of such law enforcement records
or information . . . could reasonably be expected to interfere with enforcement proceedings.”
5 U.S.C. § 552(b)(7)(A).
Documents qualify as law enforcement records if they meet two criteria: 1) the
documents were created or acquired in the course of an investigation related to the enforcement
of federal laws; and 2) the nexus between the activity and one of the agency’s law enforcement
duties was based on information sufficient to support at least a “colorable claim” of its
rationality. Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996); Pratt v. Webster, 673 F.2d 408,
420-21 (D.C. Cir. 1982); Blanton v. Department of Justice, 63 F. Supp. 2d 35, 44 (D.D.C. 1999).
The first prong is satisfied if the agency is “able to identify a particular individual or a particular
incident as the object of its investigation and the connection between that individual or incident
and a possible . . . violation of federal law.” Pratt, 673 F.2d at 420. The second prong is
“deferential,” and a court “should be hesitant to second-guess” the agency’s decision to
investigate, rejecting the agency’s rationale only if it is “pretextual or wholly unbelievable.” Id.
at 421.
Here, “FBI agents generated the documents in the course of the Special Counsel’s
investigation into the disclosure of Valerie Plame’s status as an employee of the Central
Intelligence Agency,” Bradbury Decl. ¶ 9, and thus they were “compiled for law enforcement
purposes.” 5 U.S.C. § 552(b)(7)(A). Moreover, “[b]ecause the DOJ is an agency specializing in
law enforcement, its claim of a law enforcement purpose is entitled to deference.” Center for
6
Nat’l Sec. Studies v. United States Dep’t of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003)
(quotation and alteration omitted).
Under Exemption 7(A), DOJ need only show that production of the records at issue
“could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C.
§ 552(b)(7)(A). The government’s burden in demonstrating interference with law enforcement
proceedings under Exemption 7(A) has been significantly relaxed by Congress. Section
552(b)(7)(A) originally provided for the withholding of information that “would interfere with
enforcement proceedings,” but the Freedom of Information Reform Act of 1986 amended that
language and replaced it with the phrase “could reasonably be expected to interfere with”
enforcement proceedings. See Pub. L. No. 99-570 § 1802, 100 Stat. 3207, 3207-48 (emphases
supplied). Courts have repeatedly recognized that this change in the statutory language
substantially broadens the scope of the exemption. See, e.g., Manna v. United States Dep’t of
Justice, 51 F.3d 1158, 1164 n.5 (3d Cir. 1995) (purpose of 1986 amendment was “to relax
significantly the standard for demonstrating interference with enforcement proceedings”); Gould
Inc. v. GSA, 688 F. Supp. 689, 703 n.33 (D.D.C. 1988) (“The 1986 amendments relaxed the
standard . . . by requiring the government to show merely that production of the requested
records ‘could reasonably be expected’ to interfere with enforcement proceedings.”) (emphasis
supplied); see also Spannaus v. United States Dep’t of Justice, 813 F.2d 1285, 1288 (4th Cir.
1987) (explaining that relaxed standard “is to be measured by a standard of reasonableness,
which takes into account the ‘lack of certainty in attempting to predict harm.’”).
To meet the current standard, DOJ need show only that disclosure of the records “(1)
could reasonably be expected to interfere with (2) enforcement proceedings that are (3) pending
7
or reasonably anticipated.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1540 (D.C. Cir. 1993)
(emphasis in original). “Exemption 7(A) does not require a presently pending ‘enforcement
proceeding.’” Center for National Security Studies v. United States Dep’t of Justice, 331 F.3d
918, 926 (D.C. Cir. 2003).
The Attorney General himself has determined that release of these documents would
threaten “the integrity and effectiveness of future law enforcement investigations by the
Department of Justice.” Bradbury Decl. Ex. B, at 4. For the reasons that the Attorney General
set forth in his letter to the President, “releasing the investigative interview report and notes of
the interview with the Vice President, which include discussion of confidential internal White
House deliberations, could significantly undermine future Department of Justice criminal
investigations involving official White House activities.” Bradbury Decl. ¶ 9. In particular,
release “could deter senior White House officials from participating fully and frankly in
voluntary interviews in such investigations.” Id.; accord id. Ex. B, at 4 (release would create “an
unacceptable risk that such knowledge could adversely impact [future Presidents and Vice
Presidents’] willingness to cooperate fully and candidly in a voluntary interview”). Presidents
and Vice Presidents might insist on disclosing information only pursuant to a grand jury
subpoena in order to ensure the secrecy protections of Rule 6(e) of the Federal Rules of Criminal
Procedure. Id. ¶ 9. The Attorney General has determined that under either of these scenarios,
“the Department’s ability to conduct future law enforcement investigations that might require
White House cooperation would be significantly impaired.” Id.
Courts have found that the possibility that witness cooperation will be chilled justifies the
invocation of Exemption 7(A). E.g., Center for National Security Studies, 331 F.3d at 929
8
(upholding DOJ’s assertion of Exemption 7(A) and finding that “the government’s judgment that
disclosure would deter or hinder cooperation by [potential witnesses] is reasonable”); Manna v.
United States Dep’t of Justice, 51 F.3d 1158, 1165 (3d Cir. 1995) (upholding DOJ’s assertion of
Exemption 7(A) because “disclosure of FBI reports could result in a chilling effect upon
potential cooperators and witnesses” (quotation omitted)). Here, such chilling of cooperation
presents a much more serious issue than in the normal case. In short, releasing the investigative
documents at issue in this case could “impair[ ] the integrity and effectiveness of future
Department of Justice criminal investigations involving official conduct of the White House.”
Bradbury Decl. ¶ 10. And, as recent history demonstrates, investigations requiring presidential
and vice presidential cooperation certainly can be “reasonably anticipated.” Mapother, 3 F.3d
at 1540.
Because release of the documents could reasonably be expected to interfere with future
enforcement proceedings that can be reasonably anticipated, the documents are exempt from
disclosure pursuant to FOIA Exemption 7(A). Moreover, because it is the release of the
interview reports themselves that threatens a chilling effect, “no meaningful information in the
documents can be released without disclosing” protected information. Bradbury Decl. ¶ 17.
II. The Records Are Exempt from Disclosure Pursuant to FOIA Exemption 5
Exemption 5 allows the agency to withhold “inter-agency or intra-agency memorandums
or letters which 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). Exemption Five ensures that members of the public cannot
“obtain through FOIA what they could not ordinarily obtain through discovery undertaken in a
lawsuit against the agency.” Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1208 (D.C.
9
Cir. 1992) (citation omitted). As a result, Exemption Five “exempt[s] those documents . . .
normally privileged in the civil discovery context.” Id. (citations omitted)). Of the litigation
privileges generally available to DOJ, the law enforcement privilege, the deliberative process
privilege, and the presidential communications privilege are applicable here.
A. The Records Are Protected in Their Entirety by the Law Enforcement

Privilege
DOJ and other law enforcement agencies possess a law enforcement privilege which
exists to “to prevent disclosure of law enforcement techniques and procedures, to preserve the
confidentiality of sources, to protect witness[es] and law enforcement personnel, to safeguard the
privacy of individuals involved in an investigation, and otherwise to prevent interference with an
investigation.” Singh v. S. Asian Soc’y, 2007 WL 1556669, at *3 (D.D.C. 2007) (quoting In re
Department of Investigation of the City of New York, 856 F.2d 481, 484 (2d Cir.1988))
(alteration in original).
In this case, both the Attorney General, in his letter to the President, and the head of the
Office of Legal Counsel, in his declaration to this Court, have explained with specificity the
manner in which release could impair a class of law enforcement investigations, namely
investigations involving the conduct of White House activities. See Bradbury Decl. ¶ 9-10, 12;
id. Ex. B; supra Part I. Because release would risk interference in a class of investigations, the
law enforcement privilege applies to these documents in their entirety.
10
B. Portions of the Records Are Protected by the Deliberative Process Privilege
Documents are covered by the deliberative process when they “reflect[ ] advisory
opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” Nat’l Labor Relations Bd. v. Sears,
Roebuck & Co., 421 U.S. 132, 150 (1975) (citation omitted). FOIA’s inclusion of the
deliberative process privilege among its exemptions “reflect[s] the legislative judgment that the
quality of administrative decision-making would be seriously undermined if agencies were forced
to ‘operate in a fishbowl’ because the full and frank exchange of ideas on legal or policy matters
would be impossible.” Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir.1997).
A record must satisfy three conditions to qualify for the deliberative process privilege. It
must be “inter-agency or intra-agency,” 5 U.S.C. § 552(b)(5), that is, “its source must be a
Government agency,” Klamath, 532 U.S. at 8; it must be “predecisional,” In re Sealed Case, 121
F.3d 729, 737 (D.C. Cir. 1997); and it must be “deliberative,” id. “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) (citation omitted).
In other words, “final agency action” in an Administrative Procedure Act sense need not have
resulted for the deliberative process to be protected.
Moreover, a document created after the decision at issue, can still be “predecisional” if it
memorializes protected predecisional deliberative information. See Appleton v. Food and Drug
Admin., 451 F.Supp.2d 129, 144 n. 9 (D.D.C. 2006) (protecting “memorialization” of discussions
subject to the deliberative process privilege); Electronic Privacy Info. Ctr. v. DHS, No. 04-1625,
11
2006 U.S. Dist. LEXIS 94615, at *22-24 (D.D.C. Dec. 22, 2006) (protecting under deliberative
process privilege an e-mail that “recounted” past deliberations over a prior decision).
A record is “deliberative” when “it reflects the give-and-take of the consultative process.”
Wolfe v. Department of Health and Human Servs., 839 F.2d 768, 774 (D.C. Cir. 1988) (citation
and internal quotation marks omitted) (en banc). “There should be considerable deference to the
[agency’s] judgment as to what constitutes . . . ‘part of the agency give-and-take – of the
deliberative process – by which the decision itself is made.’” Chemical Mfrs. Ass’n v. Consumer
Prod. Safety Comm’n, 600 F. Supp. 114, 118 (D.D.C. 1984) (quoting Vaughn v. Rosen, 523 F.2d
1136, 1144 (D.C. Cir. 1975)). The agency is best situated “to know what confidentiality is
needed ‘to prevent injury to the quality of agency decisions.’” Chemical Mfrs., 600 F. Supp. at
118 (quoting Nat’l Labor Relations Bd., 421 U.S. at 151).
The document portions at issue here fall within the deliberative process privilege as they
“reflect or describe frank and candid deliberations involving, among others, the Vice President,
the White House Chief of Staff, the National Security Advisor, the Director of the Central
Intelligence Agency, and the White House Press Secretary.” Bradbury Decl., ¶ 13. “These
deliberations concern, among other things, the preparation of the President’s January 2003 State
of the Union Address, possible responses to media inquiries about the accuracy of statement in
the President’s address and the decision to send Ambassador Joseph Wilson on a fact-finding
mission to Niger in 2002, the decision to declassify portions of the October 2002 National
Intelligence Estimate, and the assessment of the performance of senior White House staff.” Id.
“These high-level deliberations do not represent final decisions; rather, they reflect simply the
preliminary and predecisional interactions and deliberations that accompany any decisionmaking
12
process.” Id.
Because the deliberative portions of the records at issue reflect internal, pre-decisional
governmental interactions and decisionmaking, they are protected by the deliberative process
privilege.
C. Portions of the Records Are Protected by the Presidential Communications

Privilege
The Supreme Court has recognized a “presumptive privilege for Presidential
communications” founded on the “President’s generalized interest in confidentiality,” United
States v. Nixon, 418 U.S. 683, 708 (1974), and the Court of Appeals has specifically identified
that privilege as one falling within the ambit of those covered by Exemption Five of FOIA.
See Judicial Watch, Inc. v. Dept. of Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004). The Supreme
Court found the presidential communications privilege “necessary to guarantee the candor of
presidential advisers and to provide ‘[a] President and those who assist him . . . [with] free[dom]
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.” In re Sealed Case, 121 F.3d 729,
743 (D.C. Cir.1997) (quoting Nixon, 418 U.S. at 708).
The presidential communications privilege applies here, as “[p]ortions of the withheld
documents summarize communications among the Vice President and senior presidential
advisers in the course of preparing information or advice for potential presentation to the
President.” Bradbury Decl. ¶ 14. In addition, “some portions explicitly reference a conversation
between the President and the Vice President.” Id. These documents which reflect deliberations
between senior White House advisors preparing advice for the President and conversations
13
between President and his advisors are at the very core of the presidential communications
privilege. E.g., Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 449 (1977); Ass’n of Am.
Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 909 (D.C. Cir. 1993). “Disclosing such
sensitive conversations involving the President, the Vice President, and other senior White
House officials could impair effective Executive Branch decisionmaking.” Bradbury Decl. ¶ 14.
III. Portions of the Records are Exempt from Disclosure Pursuant to Exemptions 6
and 7(C)
The records at issue contain personal information – namely, names of third party non-
government employees, law enforcement personnel, and low level government employees not
under investigation as well as personal information such as social security numbers – that is
exempt from disclosure pursuant to FOIA Exemptions 6 and 7(C). Bradbury Decl. ¶ 15.
Exemption 6 exempts from disclosure information about individuals in “personnel and
medical and similar files” when the disclosure of such information “would constitute a clearly
unwarranted invasion of personal privacy.” See 5 U.S.C. § 552(b)(6). Exemption 6 was
“intended to cover detailed Government records on an individual which can be identified as
applying to that individual.” United States Dep’t of State v. Washington Post Co., 456 U.S. 595,
602 (1982). It therefore protects personal information contained in any government file so long
as that information “applies to a particular individual.” Id. at 602; see also New York Times Co.
v. NASA, 920 F.2d 1002, 1006 (D.C. Cir. 1990) (en banc). This “minimal” threshold “ensures
that FOIA’s protection of personal privacy is not affected by the happenstance of the type of
agency record in which personal information is stored.” Washington Post Co. v. Dep’t of Health
& Human Servs., 690 F. 2d 252, 259 (D.C. Cir. 1982).
14
Exemption 6 requires an agency to balance the individual’s right to privacy against the
public’s interest in disclosure. See United States Dep’t of the Air Force v. Rose, 425 U.S. 352,
372 (1976). Thus, where, as here, there is a protectable privacy interest, the agency must weigh
that privacy interest against the public interest in disclosure, if any. See Reed v. NLRB, 927 F.2d
1249, 1251 (D.C. Cir. 1991). However, the only relevant “public interest in disclosure” to be
weighed in this balance is the extent to which disclosure would serve the “‘core purpose of the
FOIA,’ which is ‘contribut[ing] significantly to the public understanding of the operations or
activities of the government.’” United States Dep’t of Defense v. FLRA, 510 U.S. 487, 495
(1994) (quoting United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489
U.S. 749, 773 (1989)) (emphasis and alteration in original).
Exemption 7(C) protects from disclosure “records or information compiled for law
enforcement purposes” to the extent that the production of such law enforcement records or
information “could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). In applying Exemption 7(C), the Court must “balance the
privacy interests that would be compromised by disclosure against the public interest in release
of the requested information.” Davis v. Department of Justice, 968 F.2d 1276, 1281 (D.C. Cir.
1992). However, recognizing the considerable stigma inherent in being associated with law
enforcement proceedings, courts do not apply “a balance tilted emphatically in favor of
disclosure” when reviewing a claimed 7(C) exemption. Bast v. Department of Justice, 665 F.2d
1251, 1254 (D.C. Cir. 1981). In addition, the public interest “must be assessed in light of FOIA’s
central purpose,” and this purpose “is not fostered by disclosure about private individuals that is
accumulated in various government files but that reveals little or nothing about an agency’s
15
conduct.” Nation Magazine Washington Bureau v. United States Customs Serv., 71 F.3d 885,
894 (D.C. Cir. 1995) (quotation marks and citation omitted).
It is settled that parties mentioned in law enforcement materials have a presumptive
privacy interest in having their names and other personal information withheld from public
disclosure. See, e.g., Nation Magazine Washington Bureau, 71 F.3d at 894; Safecard Servs., Inc.
v. Securities and Exchange Comm’n, 926 F.2d 1197, 1206 (D.C. Cir. 1991); Bast, 665 F.2d 1251.
The Supreme Court has concluded that “as a categorical matter . . . a third party’s request for law
enforcement records or information about a private citizen can reasonably be expected to invade
that citizen’s privacy.” Reporters Commitee, 489 U.S. at 780; see also Perrone v. FBI, 908 F.
Supp. 24, 26 (D.D.C. 1995). On the other hand, the public interest in knowing the names of
individuals mentioned in law enforcement records, as a general matter, is nil. See Blanton v.
Department of Justice, 63 F. Supp. 2d 35, 45 (D.D.C. 1999) (“The privacy interests of individual
parties mentioned in law enforcement files are ‘substantial’ while ‘[t]he public interest in
disclosure [of third party identities] is not just less substantial, it is unsubstantial.’” (quoting
Safecard, 926 F.2d at1205) (alterations in original)).
The same is true for law enforcement personnel and low level government employees.
As the Second Circuit has explained, “individuals, including government employees and
officials, have privacy interests in the dissemination of their names. Public disclosure of the
names of FBI agents and other law enforcement personnel . . . could subject them to
embarrassment and harassment in the conduct of their official duties and personal affairs.”
Massey v. FBI, 3 F.3d 620, 624 (2d Cir. 1993) (citations omitted); accord Jones v. FBI, 41 F.3d
238, 246-47 (6th Cir. 1994) (holding that “federal law enforcement officials have the right to be
16
protected against public disclosure of their participation in law enforcement investigations”
(quotation omitted)); Lesar v. United States Dep’t of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980)
(“As several courts have recognized, [FBI] agents have a legitimate interest in preserving the
secrecy of matters that conceivably could subject them to annoyance or harassment in either their
official or private lives.”).
Similarly, it is clear that personal information, such as social security numbers, addresses,
and phone numbers, are protected under both Exemption 6 and the even more protective
Exemption 7(C). E.g., FLRA, 510 U.S. at 497-502 (holding that addresses were exempt from
disclosure pursuant to Exemption 6 and noting that “[w]e are reluctant to disparage the privacy of
the home, which is accorded special consideration in our Constitution, laws, and traditions”);
Painting & Drywall Work Preservation Fund, Inc. v. Dep’t of Housing and Urban Dev., 936
F.2d 1300 (D.C. Cir. 1991) (holding that names and addresses were properly exempt because of
the “substantial privacy interest” in the information); Dayton Newspapers v. Dep't of Air Force,
35 F. Supp. 2d 1033, 1035 (S.D. Ohio 1988) (ordering a military tort database produced, but with
names, addresses, and social security numbers redacted, declaring this information to be
“personal and private, the disclosure of which would constitute an unwarranted invasion of an
individual's privacy”). This personal information is thus exempt from disclosure pursuant to
Exemptions 6 and 7(C).
IV. Portions of the Records Are Exempt from Disclosure Pursuant to Exemption 1
FOIA Exemption 1 allows an agency to protect records that are: (1) specifically
authorized under criteria established by an Executive Order to be kept secret in the interest of
national defense or foreign policy and (2) are in fact properly classified pursuant to Executive
17
Order. See 5 U.S.C. § 552 (b)(1). Exemption One thus “establishes a specific exemption for
defense and foreign policy secrets, and delegates to the President the power to establish the scope
of that exemption by executive order.” Military Audit Project v. Casey, 656 F.2d 724, 737 (D.C.
Cir. 1981). Section 1.2(a)(4) of Executive Order 12958, as amended, states that an agency may
classify information that fits into one or more of the Executive Order’s categories for
classification when the appropriate classification authority “determines that the unauthorized
disclosure of the information reasonably could be expected to result in damage to the national
security.” 68 Fed. Reg. 15315, 15315 (March 25, 2003).
The issue for the Court is whether “on the whole record, the Agency’s judgment
objectively survives the test of reasonableness, good faith, specificity and plausibility in the field
of foreign intelligence in which [the agency] is expert and [has been] given by Congress a special
role.” Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982). Although the agency bears the
burden of proving its claim for exemption, see 5 U.S.C. § 552(a)(4)(B), because agencies have
unique insights into the adverse effects that might result from public disclosure of classified
information, the courts must accord “substantial weight” to an agency’s affidavits justifying
classification. Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984); Military Audit Project, 656
F.2d at 738. As the D.C. Circuit has noted, “in the FOIA context, we have consistently deferred
to executive affidavits predicting harm to the national security, and have found it unwise to
undertake searching judicial review.” Center for National Security Studies v. United States
Dep’t of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003).
Here, a number of paragraphs are classified at the secret level by the Central Intelligence
Agency. Bradbury Decl. ¶ 16. “[T]he CIA has determined that the documents contain
18
information concerning intelligence sources and methods that is properly classified pursuant to
section 1.4(c) of Executive Order 12958.” Id. “The information regarding intelligence sources
contained within the documents relates to foreign government information and liaison
relationships.” Id. “The information regarding intelligence methods contained within the
document relates to the practices and procedures that the CIA uses to assess and evaluate
intelligence and to inform policymakers.” Id. Because the disclosure of this type of information
about intelligence sources and methods could obviously be expected to result in damage to the
national security, these paragraphs are exempt from disclosure pursuant to Exemption 1.
V. Portions of the Records Are Exempt from Disclosure Pursuant to Exemption 3
FOIA Exemption 3 protects from disclosure information that Congress has separately
determined warrants special protection. Thus, FOIA “does not apply to matters that are . . .
specifically exempted from disclosure by statute . . . provided that such statute (A) requires that
the matters be withheld from the public in such a manner as to leave no discretion on the issue, or
(B) establishes particular criteria for withholding or refers to particular types of matters to be
withheld.” 5 U.S.C. § 552(b)(3). In examining an Exemption 3 claim, the Court must determine
first whether the claimed statute is a statute of exemption under FOIA, and second whether the
withheld material satisfies the criteria of the exemption statute. See CIA v. Sims, 471 U.S. 159,
167 (1985); Fitzgibbon v. CIA, 911 F.2d 755, 761 (D.C. Cir. 1990). “A specific showing of
potential harm to national security . . . is irrelevant to the language of [an Exemption Three
statute]. Congress has already, in enacting the statute, decided that disclosure of [the specified
information] is potentially harmful.” Hayden v. National Security Agency, 608 F.2d 1381, 1390
(D.C. Cir. 1979). Thus, as the Court of Appeals has explained, “‘Exemption 3 differs from other
19
FOIA exemptions in that its applicability depends less on the detailed factual contents of specific
documents; the sole issue for decision is the existence of a relevant statute and the inclusion of
withheld material within the statute’s coverage.’” Fitzgibbon, 911 F.2d at 761-62 (quotation
omitted).
The Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458,
118 Stat. 3638 (Dec. 17, 2004), codified as part of the National Security Act at 50 U.S.C.
§ 403-1(i)(1), requires the Director of National Intelligence to “protect intelligence sources and
methods from unauthorized disclosure.” It is “settled” that this statute falls within Exemption 3.
Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982) (discussing substantively similar
predecessor statute applicable to CIA which provided that “the Director of Central Intelligence
shall be responsible for protecting intelligence sources and methods from unauthorized
disclosure”); accord Sims, 471 U.S. at 167-68, 193 (1985); Fitzgibbon, 911 F.2d at 761 (“There
is thus no doubt that [the predecessor CIA statute] is a proper exemption statute under
exemption 3”). The relevant portions of the FBI interview report contains intelligence sources
and methods and as such falls squarely within this statute. See Bradbury Decl. ¶ 16; supra
Part V. As such, this information is protected from disclosure by Exemption 3.
20
CONCLUSION
For the reasons stated above, DOJ’s Motion for Summary Judgment should be granted.
GREGORY G. KATSAS
JEFFREY A. TAYLOR
JOHN TYLER

Room 7144
Tel: (202) 514-5751
Fax: (202) 616-8202
21
Case 1:08-cv-01468-EGS Document 8-2 Filed 10/10/2008 Page 1 of 5
EXHIBI 1 1
OBA6/DOJ ~ 008/011
08/28/2on8 14:01 FAX 2025140487
CRE~ PAGE 82126
citizens for responsibility

CREW and etMc~ in washington
July 17, 2008
By Fax (202) 514-1009 and first.class mai!
Carmen L, Mellon
Chief of Staff
Off!c~ of" ~r~forma~lon and £rivacy
D~partment of Justiw
Suite 11050
1425 New York Avenue, N.W,
Washington, D.~. :20530-0001
Re: Freedom of Information Act Request
Dear Mz. Mellon:
Citizens for Ethics and Responsibility in Washington ("CP, EW’) make~ this request for
records, reg0.rdless of t briner, medium, or physieaJ cham~tsristi~s, and irteIudilag electronic
records and information, pursuant to the Freedom of Inforrnation Act ("FO1A~3, 5 U.S.C. §§ 552,
e__t s__(_~, and U.3. Department oflustice ("DOJ") regulations, 28 C.F.K. Part 16.
Please search for respor~ive r~cords regardless of format, meditm~, or physical

~haractcrlsdcs. We seek records of any and all kind, including deetronie records, audtotape~,
videot~peo! photographs, and computer print-outs, Our rex[uest inelude~ may teIephohe ~essages,
voice mail messages, slid dally agenda and cal~tadars and infontuation about scheduled meetings.
I.fk i~ your position that nny port, on of the retiuosted reeord~ i~ exempt from disclosure,
CI~W r~quests tlmt you pt’o~ide it with an index of those documents, as requirsd under
v~_Rosen.. 484 F,2d 820 (D.C. Cir. 1973). eert. denied, 41~ U,S, 977 (1972). A~ you are ~tw~re, a
~ index must dezcribt~ sash document claimed as exempt with sufficient spseifloity
permit a reasoned judgment as to whether the material is aetuallM ~,r~mpt tmd~r
Y~_qu_n_~n~ Cht~h_ o_f S~cientol_oav v, Be!l, 603 F.2d 945, 959 (D,C. Cir. 1979). Moreover, the
Vau..V._~.~’ind~x must "describe each document or portion ~hereof wiflflmld, and for each
withholdiog it must discuss the eonsequene~ of supplying the sought-aRer information."
[400 ~.ye Street, N.W., ,Suite 450, Washtnston, O.C, 20005 - [ 202.408.5565 phone [ 202.588.5020 fax [ www, eltlzeasrorethlcs.org
~ oo8tOll
08128/2008 14:01 FAX 2025140487 ODAB/DOJ
97/17/208R ~.0:’24 2825885028 CREN PAGE 83126
vLU.S. De~t of Jus.tiee, 830 F,2d 210, 223-24 0D.C. Ch’. 1987).
In the event that some po~or.t~ of’the requested records are properly ~x~mpt
disclosure, please disclose arty reasonably segregable, not~-axempt portions of the requested
records. ~ 5 U.S,C. §552(b); .S~hiller v. Nat’l r~.ho~ ~_e.latlon. ~ Bd., 969 F.2d 1205, 1209 (D,~.
Cir. 1992). If it is yottr position that a doeumerit ~ontain.s non-exempt segments and that those
~on-exerapt segments are so di~parsed throughout the doeuraenra a, to make
impossible, please state what portion of the document is non-exempt, and how the material is
dispersed through the document. Mead Dat~ Centra! v_. U.8. De.p’t 9f.the. Air porce~ 455 tr.2d
242, 261 (D.C. Cir. t977). Claims ofnon-segregab|lity rrttt~t be made with th~ same d~tail as
required for ~laims of exemptions in a ~ index, I£ a request is denied irt whole, please state
opeeifi~ally that it ia not ren~ormble to scgregdte pot-tions or’the record for release,
In accordance with 5 U.S_C. ~552(a)(4)(A)(fii) and 28 C.F.R. § 16.1 l(k), CREW rcq~a~az
a waiver o£fe~ associated with processing this request for records. The subject of this request
concerns the operations of the federal govemfaent and the di.~e.logure~ will likely contribute to a
bett~r tmderstanding of reIevallt government procedures by CREW and the general public in a
significant way. Moreover, th~ ~qtte~t i~ primarily and fundamentally for non-commercial
pttrpo~es, pursuant to 5 U.8.C, §552(a)(4)(A)(ili). S~, e.g., M¢Clellan Ee~.logiagt v. Carluc_.e_i,
835 F.2d 1282; 1285 (9~h Cir. 1987"). Specifically, th~ requested records are likely to oontribute to
the ptlblit~’~ wad=~tv.ndizlg O1" the role of the vice president in the diselosm’e of Ms, Wilson’s
covert identity, the information that formed part of the b~is far DOJ’~ decision not to pro~ecut~
Mr. ~h~tx~y mad wh~thor the *tttorn6T general advocated r.hat the president ~t~rt exeGa~tive
privileg~ in response to the c~ngre~si0na! subpoena ~or these documema to protect the vice
preMdent and prevent the public from learning the truth about lvlr, Claency’s role ist ~o l~ak of
Ms, Phtme’a covert identity.
¯ CREW is a non-profit corporation, orgardzed undzr section 501(e)(3) of the Internal

Rearenue.eoda, CP, HW ~s committed to protecting th~ oitiz~s’ fight to be awara ofthe activlti~
of government officials and to ert~uring the integrity of those offi¢ial~, CP,.EW is d~lieatexl to
empowering citizen, to hav~ an influential voice in govamrneat de~is~on,s atad in the ¢tovarnraent.
decision-malting process. CREW u~ a eorabination of research, litigation, and advoeaoy to ’ ’
advance its rnissiolx. The release of information gm’azred through this request is not in C1LEW’s
finmaoiM interest, CP,.EW will aualyze the information responsive to thi~ request and intends to
share its analysis with the public, ~ither through memoranda, report~, or press releases. CREW
ht~ an eslablish~l record of eart~tag olaf theme types ofa~tiviti~n, a~ e~d~nced tlarough it~
wsbsite, ~.~itiz~n~omthies.or~ Curr, rttly, ths CREW w~bsite contains lix~ks to thousands of
pa~es ofdoeumenm acquired fi-om multiple FOIA,
J~tt0:l/citize~fo~tlai_es,or~c_ti.’vitie~/foia.php.. Visitors to CR.13W’s website ~an’polmse the FOIA
request letters, the responses from government agerteies, and a growing number of documents
r, nponditlg to FOIA requests, CREW’a virtual reading room provide~ around-the-clock ac~os to
2
Case 1:08-cv-01468-EGS Document 8-2 Filed 10/10/2008 Page 4 of010/011
5
08/29/2008 14’0! FAX 2025140487
PA6E e4t26
~yon~ interested in |cueing about the goverrauont aotlvi~~ that w~ ~e focus

FOIA requests. The C~W website also lgoludgs doe~en~ minting to C~W~s FOIA
litigation, [ut~ma[ Revenue Sg~i~ ~mplalnts, ~ederal ~leetion Co~i~sion ~ompl~nt~ ~d
requesm for ~ves~gafion, ~ch ~ the on~ C~W ~eutly made of A~omey Generfl Michael
M~mey relating to the activities of lobb~ S~phen Pa~e, ~ho is ~l~ed ~ have
co~ibutio~ to th~ Bush Iib~ In #xch~ge for s~c~ng me=tings wi~ top ~in~s~ton
o~oials. ~ edition, C~W ~11 dissemina~ ~y doc~on~s it acquits from i~’request ~
public ~ough ~.¢ovem~0n~o~s.or~, m ~temefive website C~W fo~d~, that incl~es
tho~ds ofpagen of public docum~ts ~om n ~ber oforg~i~fions in addition t~
Under th~sn circumstances, CREW satisfies ~lly ths criteria for a fee waiver.
for Exr~ed|t~On
" Pursuant to 5 U.8,C. § S52(a)(6)(l~)(~ m’~d 28 C,F,R. § 16.5(d)(iv), CKEW reque~ mat
DO~ expe~te the p~ss~g of~s ~t. ~ r~ut~ by DOJ ~la~o~, 28 C,F.~ ~
16,5(d)(2), C~W is ~bmia~g its mqu~st for ~xpedifion to ~e director of Public A~i~. A
copy of C~W’s ~qu~t is e~elosed.
CREW also requests that DOJ expedite its request pursuant to 2g C.F.R. § 16.5(d)(ii), As
explainea above~ CREW is engaged, primarily in the dissemination ofhfonnation that it gathers
from a varisty of sources, including th~ FOIA, and seeks the information requited in this FOIA
reqtm~t for the etqn~ss purlm~t~ of disseminating it to the public. ~rt addition to the itttaractive
wnhsit~ that CREW fovnded, ~.gov~nmentd_o.cs.orm that eorttain~ the documents CREW has
acquired through thz FOIA, CREW’~ w~bsite ~unudaz ~xumerous ~xampl~s of its
including reports ~t has publlshed based on information it r~eive~ througli the FOLk. For
example, CREW’s report, geegrd I~haos~,The’D~_ lorable f{tat9 of El..vet_to_ _ nic K.e.vord
the~Feder~l_ G_ovemm~, was based in stgnlfi~attt part on do0uments it requested under the FOIA
from a variety of agencies, htcludingDOJ.
, There is a partloular urgency tn informing the publie about ~h¢ role Vice President
Ctt~rtey played in the leak of Ms. Wilzon’s e, overt CIA identity ~ well as the bases for the
derision not to prose, cute the vice president, despite Special Courtsel Patrick Fitzgerald’s
~t~l~tu~at at thn trtaI ell Lewis Libby that "’LtJhere is a cloud over what the Vice Ptesidertt did
that wcck... Ttmt cloud remains," Further generating puhli~ eo~c, em are the reeelxt actions of
Attorney Ovneral Michael Mukasey, iaxoludirag his request oI’th~ White House that it assert
executive prlvileg~ over the documents CREW i~ requesting here ~d the subsequent assertion of
executive privilege. Atlorney G~norai Muka.qoy’~ aotlon~ rinse it set,otis question of whether he
is subvr, tCiag a legitimate congressional inquiry to cover up the truth and pro .~et the vice
president. Disclosure of the documents CR~W is requesting wtll go a long w~y toward
answering those questions.
~ 011/011
0B/29/2008 14"02 FAX 2025140467
2025BB5~ PAGE 85/26
~77tYI2BB8 10~24
Pur.~uant to 28 (2.F.R. § 16,5(~[)(3), I hereby certify that th~ bnsis for CPEW’s request tbr
expedition, as outlined above, is true and eorrex:t to the best of my knowledge and bel~e£
If you hav~ any .questions about this request, or foresee a~ty problems in r~leasing fully
tla~ requested records on an ~×pedit~d basis, please contact ro.e at (2o2) 408.5565. Al~o, i£
CP,.EW’s request for a f~ waiver is not grmate4 in full, plebe eo~ttaet our office immediately
upon makitig such a determination. Please send.th~ requested doeumer~t9 to Anne Wei,~mann,
Citiz~nz tbr Responsibility ~d Ethles ir~ Wa.shir~gton, 1400 Eye Street, N.W., Suite 450,
Wash|ngtoa, D.C, 20005.
En~losttre
4


)
Plaintiff )
) No. 1:08-cv-01468 (EGS)
)
)
Defendant. )
____________________________________ )
DEFENDANT'S STATEMENT OF MATERIAL FACTS NOT IN DISPUTE
Pursuant to this Court’s Local Civil Rule 7(h) and Local Civil Rule 56.1, Defendant
United States Department of Justice (“DOJ”) hereby submits the following statement of material
facts as to which defendant contends there is no genuine issue or dispute.
MATERIAL FACT EVIDENCE
1. By letter dated July 17, 2008, plaintiff submitted a Letter from Anne Weismann to
FOIA request to the DOJ for “documents relating to Carmen Mallon (attached as
any interviews outside the presence of the grand jury Exhibit 1).
of Vice President Richard B. Cheney that are part of
Special Counsel Patrick Fitzgerald’s investigation
into the leak of the identity of Valerie Plame
Wilson.” This request was “coextensive with the
subpoena issued by the House of Representatives
Committee on Oversight and Government Reform to

Attorney General Michael B. Mukasey on June 16,
2008, for the same records concerning Vice
President Cheney.”
2. The Office of Legal Counsel had previously Bradbury Decl. ¶ 3.
collected the responsive documents.
3. By letter dated September 18, 2008, OLC responded Bradbury Decl. Ex. E.
to plaintiff’s FOIA request. OLC found that three
documents totaling 67 pages were responsive to the
request. OLC found that the records were exempt
from production pursuant to FOIA Exemption 7(A)
because they “were compiled for law enforcement
purposes and their production ‘could reasonably be
expected to interfere with enforcement
proceedings.’” OLC also withheld the documents
upon its determination that each was subject to the
deliberative process privilege, the presidential
communications privilege, and the law enforcement
investigative privilege. Finally, OLC withheld
-2-
portions that contain classified information and are
protected from disclosure by the National Security
Act.
4. The documents at issue were created in the course of Bradbury Decl. ¶ 13.
an investigation related to the enforcement of federal
laws. Namely, “FBI agents generated the documents
in the course of the Special Counsel’s investigation
into the disclosure of Valerie Plame’s status as an
employee of the Central Intelligence Agency.”
5. The Attorney General has determined that releasing Bradbury Decl. Ex. B, at 4.
the documents would threaten “the integrity and
effectiveness of future law enforcement
investigations by the Department of Justice.”
6. The Attorney General has determined that “releasing Bradbury Decl. ¶ 9.
the investigative interview report and notes of the
interview with the Vice President, which include
discussion of confidential internal White House
deliberations, could significantly undermine future
-3-
Department of Justice criminal investigations
involving White House activities.” In particular,
release “could deter senior White House officials
from participating fully and frankly in voluntary
interviews in such investigations.” Presidents and
Vice Presidents might insist on disclosing
information only pursuant to a grand jury subpoena
in order to ensure the secrecy protections of
Rule 6(e) of the Federal Rules of Criminal
Procedure. The Attorney General has determined
that under either of these scenarios, “the
Department’s ability to conduct future law
enforcement investigations that might require White
House cooperation would be significantly impaired.”
7. “Portions of the withheld documents reflect or reflect Bradbury Decl., ¶ 13.
or describe frank and candid deliberations involving,
among others, the Vice President, the White House
Chief of Staff, the National Security Advisor, the
Director of the Central Intelligence Agency, and the
White House Press Secretary. These deliberations
-4-
concern, among other things, the preparation of the
President’s January 2003 State of the Union Address,
possible responses to media inquiries about the
accuracy of statement in the President’s address and
the decision to send Ambassador Joseph Wilson on a
fact-finding mission to Niger in 2002, the decision to
declassify portions of the October 2002 National
Intelligence Estimate, and the assessment of the
performance of senior White House staff. These
high-level deliberations do not represent final
decisions; rather, they reflect simply the preliminary
and predecisional interactions and deliberations that
accompany any decisionmaking process.”
8. “Portions of the withheld documents summarize Bradbury Decl. ¶ 14.
communications among the Vice President and
senior presidential advisors in the course of
preparing information or advice for presentation to
the President” and “some portions explicitly
reference a conversation between the President and
the Vice President.” “Disclosing such sensitive
conversations involving the President, the Vice
-5-
President, and other senior White House officials
could impair effective Executive Branch
decisionmaking.”
9. The documents include “information [that] was Bradbury Decl. ¶ 15.
collected in the course of a law enforcement
investigation and [that] includes the names of
third-party individuals (non-government employees),
law enforcement personnel, and low-level
government employees who were not the subject of
the Special Counsel's investigation, as well as
private personal information (such social security
numbers and and other extraneous personal
information).”
-6-
10. “[A] number of paragraphs in the FBI interview Bradbury Decl. ¶ 16.
report . . . contain information currently classified at
the SECRET level by the Central Intelligence
Agency and exempted from disclosure by the
National Security Act of 1947, as amended, see 50
U.S.C. § 403-1(i)(l). In particular, the CIA has
determined that the documents contain information
concerning intelligence sources and methods that is
properly classified pursuant to section 1.4(c) of
Executive Order 12958. The information regarding
intelligence sources contained within the documents
relates to foreign government information and liaison
relationships. The information regarding intelligence
methods contained within the document relates to the
practices and procedures that the CIA uses to assess
and evaluate intelligence and to inform
policymakers.”
-7-
GREGORY G. KATSAS
JEFFREY A. TAYLOR
JOHN TYLER

Tel: (202) 514-5751
Fax: (202) 616-8202
-8-

CREW v. DOJ: Re: Valerie Plame: 10/10/08 - DOJs Motion For Summary Judgment

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Case 1:08-cv-01468-EGS Document 8 Filed 10/10/2008 Page 1 of 24

UNITED STATES DISTRICT COURT

CITIZENS FOR RESPONSIBILITY AND )

UNITED STATES DEPARTMENT OF

Defendant hereby moves pursuant to Fed. R. Civ. P. 56 for summary judgment.

October 10, 2008 Respectfully submitted,

/s/ Jeffrey M. Smith

Counsel for Defendant

UNITED STATES DISTRICT COURT

CITIZENS FOR RESPONSIBILITY AND )

UNITED STATES DEPARTMENT OF JUSTICE’S MEMORANDUM

JEFFREY M. SMITH (D.C. Bar # 467936)

Counsel for Defendant

I. The Records Are Exempt from Disclosure Pursuant to FOIA

II. The Records Are Exempt from Disclosure Pursuant to FOIA

A. The Records Are Protected in Their Entirety by the Law Enforcement

B. Portions of the Records Are Protected by the

C. Portions of the Records Are Protected by the

III. Portions of the Records are Exempt from Disclosure Pursuant to

IV. Portions of the Records Are Exempt from Disclosure Pursuant to

V. Portions of the Records Are Exempt from Disclosure Pursuant to

In June 2008, the House of Representatives Committee on Oversight and Government

assembled documents responsive to this subpoena. Id.

husband, Ambassador Joseph Wilson, on a fact-finding mission to Niger in 2002. Id.

Prior to the subpoena, DOJ had, in an effort to accommodate the Committee’s

Bradbury Decl. Ex. B., at 2.

16, 2008. Id. Ex. C.

Washington (“CREW”) submitted a Freedom of Information Act request to DOJ’s Office of

same records concerning Vice President Cheney.” Id.

Bradbury Decl. Ex. E (quoting 5 U.S.C. § 552(b)(7)(A)).

from disclosure by the National Security Act. Id.

directly to the President and/or Vice President.

government may satisfy its burden of justifying non-disclosure of materials by submitting an

FOIA Exemption 7(A) authorizes the withholding of “records or information compiled

or information . . . could reasonably be expected to interfere with enforcement proceedings.”

“deferential,” and a court “should be hesitant to second-guess” the agency’s decision to

purposes.” 5 U.S.C. § 552(b)(7)(A). Moreover, “[b]ecause the DOJ is an agency specializing in

(quotation and alteration omitted).

“could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C.

§ 552(b)(7)(A). The government’s burden in demonstrating interference with law enforcement

records ‘could reasonably be expected’ to interfere with enforcement proceedings.”) (emphasis

1987) (explaining that relaxed standard “is to be measured by a standard of reasonableness,

918, 926 (D.C. Cir. 2003).

House deliberations, could significantly undermine future Department of Justice criminal

investigations involving official White House activities.” Bradbury Decl. ¶ 9. In particular,

Presidents’] willingness to cooperate fully and candidly in a voluntary interview”). Presidents

White House cooperation would be significantly impaired.” Id.

disclosure would deter or hinder cooperation by [potential witnesses] is reasonable”); Manna v.

Exemption 5 allows the agency to withhold “inter-agency or intra-agency memorandums

privilege, and the presidential communications privilege are applicable here.

A. The Records Are Protected in Their Entirety by the Law Enforcement

privacy of individuals involved in an investigation, and otherwise to prevent interference with an

investigation.” Singh v. S. Asian Soc’y, 2007 WL 1556669, at *3 (D.D.C. 2007) (quoting In re

law enforcement privilege applies to these documents in their entirety.

B. Portions of the Records Are Protected by the Deliberative Process Privilege

opinions, recommendations and deliberations comprising part of a process by which

quality of administrative decision-making would be seriously undermined if agencies were forced

resulted for the deliberative process to be protected.

[agency’s] judgment as to what constitutes . . . ‘part of the agency give-and-take – of the

118 (quoting Nat’l Labor Relations Bd., 421 U.S. at 151).

C. Portions of the Records Are Protected by the Presidential Communications

The Supreme Court has recognized a “presumptive privilege for Presidential

communications” founded on the “President’s generalized interest in confidentiality,” United