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Case TitleLARDNER v. UNITED STATES DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2003cv00180
Date Filed2003-02-04
Date Closed2005-03-31
JudgeJudge John D. Bates
PlaintiffGEORGE LARDNER, JR.
DefendantUNITED STATES DEPARTMENT OF JUSTICE
Documents
Docket
Complaint
Opinion/Order [31]
FOIA Project Annotation: Judge John Bates has ruled that the Justice Department may invoke both the presidential communications privilege on behalf of the president and the deliberative process privilege to protect a handful of records pertaining to executive pardons during the Reagan administration. But Bates also concluded that the names of unsuccessful pardon applicants and those who provided information in support of pardon applications are not protected under either Exemption 6 (invasion of privacy) or Exemption 7(C) (invasion of privacy concerning law enforcement records) and that the disclosure of the names is in the public interest. Bates was ruling in a case brought by Washington Post reporter George Lardner, who is writing a book on the use of presidential pardon power. Lardner had requested records from 1960-1989. While the agency withheld a number of records initially, after Lardner filed suit it released all records prior to the Reagan administration. However, it continued to withhold Reagan era records under Exemption 5 (privileges), Exemption 6 and Exemption 7(C). During the course of Lardner's litigation, the government asked Bates to stay proceedings until the D.C. Circuit ruled in Judicial Watch v. Dept. of Justice, 365 F.3d 1108 (D.C. Cir. 2004), a case involving access to pardon records. In that case, the D.C. Circuit held that only records that were sent to the president and his advisors qualified for the presidential communications privilege, while records that never made it that far were not covered by the presidential communications privilege but might still be protected by the deliberative process privilege. Lardner argued that the president had to invoke the presidential communications privilege personally and that his authority to do so could not be delegated to the Pardon Attorney. While Lardner claimed that because case law required the president to personally invoke the privilege in the context of civil discovery and he should be required to do so as well in a FOIA context, Bates observed that there was a distinct difference between the two. He noted that "there will be many cases in which a document should be withheld under Exemption 5 of FOIA because it falls 'within the ambit' of the privilege, but the document nonetheless would be discoverable in certain circumstances in civil litigation." Bates indicated that "the personal invocation of the presidential communications privilege is [ ] a civil discovery rule that should not be imported into the FOIA analysis. First, the central question is always whether the records at issue are pardon documents that 'fall within the ambit' of the presidential communications privilege (such that they would not be 'routinely or normally' available in civil discovery). There is no indication that this language turns not only on the content or nature of a document generally, but also on the manner in which the exemption is raised in a particular request. For the deliberative process privilege, the D.C. Circuit has emphasized that the application of Exemption 5 'depends on the factual content and purpose of the requested document.' The Supreme Court has applied a similar rule to other FOIA statutory exemptions. The Court finds no reason why a different rule should apply to the Exemption 5 presidential communications privilege." He added that "there is also a critical difference between the government's invocation of a privilege in civil discovery and its decision to withhold documents under FOIA. The former is an act of resistance to the disclosure of information in a judicial proceeding. . .The latter is a decision to withhold a document from disclosure under a statute through which the government has chosen to make government records available to the public outside of discovery (subject to certain exceptions). An agency does not invoke a privilege against discovery when it withholds a document under one of the exemptions, because there is no discovery to resist. Instead, the agency simply makes the determination that a statutory provision protects the documents from disclosure, and withholds the documents on that ground." In a passage that is relevant to the delegation of denial authority in any agency, Bates observed that "there is no indication in the text of the statute or elsewhere that Congress anticipated " much less demanded " that the decision to withhold documents under Exemption 5 would need to be made personally by the head of the agency (in this case the President). . .[C]ourts routinely accept a declaration from an employee at the agency other than a high-level official as documentation of an Exemption 5 deliberative process claim. . .There is simply no basis in law or practice for believing that the personal invocation of a privilege is a prerequisite to withholding under FOIA." Bates added that requiring the president to invoke the privilege would be burdensome and would create separation of powers concerns. He concluded that "the President need not personally invoke the presidential communications privilege for the government to withhold documents that fall within the ambit of the privilege under Exemption 5 of FOIA." Bates rejected Lardner's claim that privileges eroded over time. He disagreed with Lardner's suggestion that after 15 years such privileges should be considered significantly diminished. He noted that "while this Court does not doubt that there will be many instances where communications among presidential staff (or other executive officials) would be admissible in litigation when they are more than 15 years old, the Court is unconvinced that the showing would be so routine that a blanket 15-year statute of limitations on the presidential communications and deliberative process privileges should be recognized under Exemption 5." The agency had withheld several letters from judges or independent counsels expressing their views on various applicants. Lardner claimed that since neither were "agencies" for purposes of FOIA, they could not be encompassed within Exemption 5. The agency had relied on Ryan v. Dept. of Justice, 617 F.2d 781 (D.C. Cir. 1980), in which the D.C. Circuit had ruled that responses from Senators solicited by the Justice Department concerning judicial nominations could be withheld because they were part of the agency's consultative process. Lardner argued the Supreme Court's decision in Dept. of Interior v. Klamath, 532 U.S. 1(2001), in which the Court ruled that correspondence between Indian tribes and the Bureau of Indian Affairs could not be protected because it reflected the self-interest of the tribes rather than providing advice to the agency, had reversed Ryan. Bates disagreed, pointing out that "withholding the documents in this case falls entirely within the rule of Ryan, and is fully consistent with the reasoning in Klamath. The recommendation letters at issue here were 'submitted by outside consultants as part of the deliberative process' and were 'solicited by the agency,' and therefore they qualify as intra-agency documents under Ryan." He explained that "fairly read, the holding in Klamath is only that a communication from an 'interested party' seeking a Government benefit 'at the expense of other applicants' is not an intra-agency record." The agency had withheld names of unsuccessful pardon applicants and individuals who had provided information about applicants under Exemptions 6 and 7(C). Bates rejected those claims, noting that "the pardon application materials can be expected to contain highly personal information about an applicant that implicates privacy concerns. It is far more difficult to understand, and defendant does not explain, how the mere fact that an individual has sought a pardon reveals 'sensitive personal information' about the individual amounting to a 'clearly unwarranted invasion of personal privacy.'" He pointed out that "the conviction that the pardon applicant is seeking to annul was itself public, and it cannot be thought that the information that the individual was later denied a pardon application adds much additional embarrassment beyond the original conviction. Finally, the identities of the successful pardon applicants are disclosed to the public. Defendant is unable to explain what it is about the names of the unsuccessful applicants that uniquely implicates personal information sensitive enough to bring the records within Exemption 6." In a footnote, Bates rejected the argument that an unsuccessful pardon would serve as a reminder of the original conviction and, thus, would be a protectible privacy interest under Reporters Committee. Bates observed that "it would stretch Reporters Committee well past recognition to apply it to a case where information is sought that does not compile sensitive information, but might only remind one of public but sensitive information." While Bates recognized that disclosing names of individuals who provided information to support an application could chill candor in future applications, he indicated that "the concern that disclosure might undermine the pardon selection process may be a reason to enlarge the deliberative process privilege to include certain deliberations between the government and a private party. But it is not a reason to expand Exemption 6 to situations where there is not a sufficient privacy interest at stake."
Issues: Exemption 5 - Privileges, Exemption 6 - Invasion of privacy, Exemption 7(C) - Invasion of privacy concerning law enforcement records
Opinion/Order [33]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2003-02-041COMPLAINT for declaratory and injunctive relief against UNITED STATES DEPARTMENT OF JUSTICE (Filing fee $ 150.), filed by GEORGE LARDNER JR..(rje, ) (Entered: 02/06/2003)
2003-02-04SUMMONS (3) Issued as to UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (rje, ) (Entered: 02/06/2003)
2003-03-062ANSWER to Complaint by UNITED STATES DEPARTMENT OF JUSTICE.(Tyler, John) (Entered: 03/06/2003)
2003-04-023ORDER directing parties to submit briefing schedule. Signed by Judge John D. Bates on 4/2/03. (lcjdb2) (Entered: 04/02/2003)
2003-04-184MEMORANDUM Joint Proposed Briefing Schedule . (Tyler, John) (Entered: 04/18/2003)
2003-04-22MINUTE ENTRY: Upon consideration of the Joint Proposed Briefing Schedule it is hereby ORDERED as follows: defendant's motion for summary judgment shall be filed by June 20, 2003; plaintiff's opposition and cross-motion for summary judgment shall be filed by July 18, 2003; defendant's reply on its motion and its opposition to plaintiff's cross-motion shall be filed by August 8, 2003; plaintiff's reply on its motion for summary judgment shall be filed by August 29, 2003. Signed by Judge John D. Bates on 4/22/03. (lcjdb2) (Entered: 04/22/2003)
2003-06-205ENTERED IN ERROR..... MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 # 2 # 3 # 4 # 5 )(Tyler, John) Modified on 6/24/2003 (mpt, ). (Entered: 06/20/2003)
2003-06-206ENTERED IN ERROR..... MOTION for Summary Judgment motion and proposed order and statement of material facts by UNITED STATES DEPARTMENT OF JUSTICE. (Tyler, John) Modified on 6/24/2003 (mpt, ). (Entered: 06/20/2003)
2003-06-24NOTICE OF CORRECTED DOCKET ENTRY. Document Nos. 5-6 were entered in error and counsel was instructed to refile said pleading. (mpt, ) (Entered: 06/24/2003)
2003-06-247MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 )(Tyler, John) (Entered: 06/24/2003)
2003-07-188MOTION to Compel Production of Adequate Vaughn Index and Motion to Postpone Plaintff's Opposition to Defendant's Motion and Plaintiff's Cross-Motion for Summary Judgment by GEORGE LARDNER JR.. (Attachments: # 1 Text of Proposed Order # 2 Plaintiff's Exhibits 1-7# 3 Plaintiff's Exhibits 8-14)(Tankersley, Michael) (Entered: 07/18/2003)
2003-07-189MOTION for Extension of Time to File Response/Reply for Fourteen Days to Respond to Oppostion to Motion for Summary Judgment and to File a Cross Motion for Summary Judgment. (See Doc. 8 for Pleading) by GEORGE LARDNER JR.. (mpt, ) (Entered: 07/23/2003)
2003-07-3010MOTION for Extension of Time to File Response/Reply to plaintiff's motion to compel an additional Vaughn Index and to postpone briefing by UNITED STATES DEPARTMENT OF JUSTICE. (Tyler, John) (Entered: 07/30/2003)
2003-08-01MINUTE ENTRY: Upon consideration of 10 Motion for Extension of Time to File Response/Reply, it is hereby ORDERED that the motion is GRANTED. Defendant's time to respond to plaintiff's motion to compel an additional Vaughn Index and to postpone briefing is extended until 8/8/2003. Signed by Judge John D. Bates on 8/1/03. (lcjdb2) (Entered: 08/01/2003)
2003-08-0811Memorandum in opposition to motion re 8 to compel "adequate Vaughn Index" filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit Supplemental Morison Declaration# 2 Exhibit Supplemental Kelly Declaration)(Tyler, John) (Entered: 08/08/2003)
2003-08-0812RESPONSE to plaintiff's motion for additional time to oppose defendant's summary judgment motion filed by UNITED STATES DEPARTMENT OF JUSTICE. (Tyler, John) (Entered: 08/08/2003)
2003-08-1813REPLY in support of motion re 8 filed by GEORGE LARDNER JR.. (Tankersley, Michael) (Entered: 08/18/2003)
2004-01-0514NOTICE of Appearance by Allison Marcy Zieve on behalf of GEORGE LARDNER JR. (Zieve, Allison) (Entered: 01/05/2004)
2004-02-0415MEMORANDUM OPINION granting plaintiff's motion for an amended Vaughn index. Signed by Judge John D. Bates on 02/04/04. (lcjdb2) (Entered: 02/04/2004)
2004-02-0416ORDER denying without prejudice 7 defendant's motion for summary judgment and granting 8 plaintiff's motion to compel production of an adequate Vaughn index. Signed by Judge John D. Bates on 02/04/04. (lcjdb2) (Entered: 02/04/2004)
2004-03-0817MOTION to Stay by UNITED STATES DEPARTMENT OF JUSTICE. (Tyler, John) (Entered: 03/08/2004)
2004-03-0918ORDER granting 17 defendant's motion to stay. Signed by Judge John D. Bates on 03/09/04. (lcjdb2) (Entered: 03/09/2004)
2004-05-2119ENTERED IN ERROR.....MEMORANDUM Joint Report and Proposed Briefing Schedule from both parties. (Tyler, John) Modified on 5/24/2004 (bcs, ). (Entered: 05/21/2004)
2004-05-2420ORDER setting deadlines for defendant's amended Vaughn index and a briefing schedule for cross-motions. Signed by Judge John D. Bates on 05/24/04. (lcjdb2) (Entered: 05/24/2004)
2004-05-24Set Deadlines/Hearings: Amended Vaughn index due by 6/18/2004. Plaintiff's Summary Judgment motion due by 7/31/2004. Defendant's Response to Motion for Summary Judgment and Cross-Motion due by 8/31/2004. Plaintiff's Reply to Motion for Summary Judgment and Opposition due by 9/28/2004. Defendant's Reply due by 10/18/2004. (lcjdb2) (Entered: 05/24/2004)
2004-06-08"NOTICE OF CORRECTED DOCKET ENTRY. Document No. 19 was entered in error and counsel is instructed to re-file document as a status report with the proposed scheduling order attached as an exhibit." (bcs, ) (Entered: 06/08/2004)
2004-06-1821MOTION for Extension of Time to File amended Vaughn Index by UNITED STATES DEPARTMENT OF JUSTICE. (Tyler, John) (Entered: 06/18/2004)
2004-06-2122NOTICE by UNITED STATES DEPARTMENT OF JUSTICE Notice of Filing of Amended Vaughn Index (Attachments: # 1 Third declaration of Samuel Morison# 2 Vaughn Index as amended# 3 )(Tyler, John) (Entered: 06/21/2004)
2004-06-22MINUTE ENTRY: Upon consideration of 21 defendant's motion for an extension of time in which to file an amended Vaughn index, it is hereby ORDERED that the motion is GRANTED nunc pro tunc; and it is further ORDERED that the amended Vaughn index filed on June 21, 2004, shall be deemed timely submitted. Signed by Judge John D. Bates on 06/22/04. (lcjdb2) (Entered: 06/22/2004)
2004-07-2923MOTION for Summary Judgment Or, In the Alternative, for a More Adequate Vaughn Index by GEORGE LARDNER JR.. (Attachments: # 1 Text of Proposed Order # 2 Statement of Material Facts# 3 Declaration of Scott Nelson# 4 Declaration of George Lardner & Exhibit 1# 5 Exhibits 2-7 to lardner Declaration# 6 Exhibits 8-13 to Lardner Declaration)(Zieve, Allison) (Entered: 07/29/2004)
2004-08-3124MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Second Amended Vaughn Index, and Defendant's Exhibits 6-9 in support of their motion for summary judgment# 2 proposed order)(Tyler, John) (Entered: 08/31/2004)
2004-09-1625MOTION for Extension of Time to File Response/Reply in support of summary judgment by UNITED STATES DEPARTMENT OF JUSTICE. (Tyler, John) (Entered: 09/16/2004)
2004-09-17MINUTE ENTRY: Upon consideration of 25 defendant's unopposed motion for an enlargement of time, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that defendant shall file its reply memorandum to its motion for summary judgment by not later than November 3, 2004. Signed by Judge John D. Bates on 9/17/04. (lcjdb2) (Entered: 09/17/2004)
2004-09-17Set/Reset Deadlines: Defendant's reply due by 11/3/2004. (lcjdb2) (Entered: 09/17/2004)
2004-09-2826Memorandum in opposition to motion re 24 and Reply in support of Plaintiff's Motion for Summary Judgment filed by GEORGE LARDNER JR.. (Zieve, Allison) (Entered: 09/28/2004)
2004-10-28MINUTE ENTRY: It is hereby ORDERED that a hearing on the parties' motions for summary judgment is set for December 14, 2004, at 09:45 AM. Signed by Judge John D. Bates on 10/28/04. (lcjdb2) (Entered: 10/28/2004)
2004-10-28Set/Reset Hearings: Motions Hearing set for 12/14/2004 at 9:45 AM. (lcjdb2) (Entered: 10/28/2004)
2004-11-0327REPLY to opposition to motion re 23 and in support of defendant's summary judgment motion filed by UNITED STATES DEPARTMENT OF JUSTICE. (Tyler, John) (Entered: 11/03/2004)
2004-12-07SCHEDULING ORDER: It is hereby ORDERED that the motions hearing previously scheduled for December 14, 2004, at 9:45 a.m. is hereby rescheduled for December 14, 2004, at 4:15 p.m. Signed by Judge John D. Bates on 12/7/2004. (lcjdb2) (Entered: 12/07/2004)
2004-12-07Set/Reset Hearings: Motion Hearing set for 12/14/2004 04:15 PM before Judge John D. Bates. (lcjdb2) (Entered: 12/07/2004)
2004-12-13SCHEDULING ORDER: It is hereby ORDERED that the motions hearing previously scheduled for December 14, 2004, at 4:15 p.m. is hereby rescheduled for December 14, 2004, at 10:30 a.m. Signed by Judge John D. Bates on 12/13/2004. (lcjdb2) (Entered: 12/13/2004)
2004-12-13Set/Reset Hearings: Motion Hearing set for 12/14/2004 10:30 AM before Judge John D. Bates. (lcjdb2) (Entered: 12/13/2004)
2004-12-14Minute Entry Motion Hearing held on 12/14/2004 re 7 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE, 23 MOTION for Summary Judgment Or, In the Alternative, for a More Adequate Vaughn Index filed by GEORGE LARDNER, 24 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE before Judge John D. Bates: Defendant's to file declaration by 1/18/2005; plaintiff's factual response due one week thereafter. (Court Reporter Bryan Wayne) (tb) (Entered: 12/14/2004)
2004-12-1628TRANSCRIPT of Motions Hearing held on December 14, 2004 before Judge John D. Bates. Court Reporter: Bryan A. Wayne. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (lc, ) (Entered: 12/20/2004)
2005-01-0329NOTICE of Supplemental Authority by GEORGE LARDNER, JR re 23 MOTION for Summary Judgment Or, In the Alternative, for a More Adequate Vaughn Index (Zieve, Allison) (Entered: 01/03/2005)
2005-01-1830AFFIDAVIT of Peter Keisler in response to Court Order by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Attachment 1 (attachments to Keisler Declaration# 2 Attachment 2# 3 Pustay Declaration with attachments)(Tyler, John) (Entered: 01/18/2005)
2005-03-3131ORDER granting in part and denying in part 23 plaintiff's motion for summary judgment, and granting in part and denying in part 24 defendant's motion for summary judgment. Signed by Judge John D. Bates on 3/31/05. (lcjdb2) (Entered: 03/31/2005)
2005-03-3132ENTERED IN ERROR.....CORRECTED ENTRY MADE ON 04/04/05. MEMORANDUM OPINION. Signed by Judge John D. Bates on 3/31/05. (lcjdb2) Modified on 4/4/2005 (tb). (Entered: 03/31/2005)
2005-04-0433MEMORANDUM OPINION. Signed by Judge John D. Bates on 4/4/2005. (lcjdb2) (Entered: 04/04/2005)
2005-04-04NOTICE OF CORRECTED DOCKET ENTRY: Memorandum Opinion entered on 03/31/05 was in error, corrected Memorandum Opinion filed on 04/04/05. (tb) (Entered: 04/04/2005)
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