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Case TitlePROPERTY OF THE PEOPLE, INC. et al v. OFFICE OF MANAGEMENT AND BUDGET et al
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2017cv01677
Date Filed2017-08-17
Date Closed2019-08-19
JudgeJudge Rudolph Contreras
PlaintiffPROPERTY OF THE PEOPLE, INC.
PlaintiffRYAN NOAH SHAPIRO
Case DescriptionProperty of the People and researcher Ryan Shapiro submitted FOIA requests to OMB and the Council on Environmental Quality for records concerning visitors' logs, phone logs, and the directors' appointment calendars. The agencies acknowledged receipt of the requests, but after hearing nothing further from the agencies, Property of the People and Shapiro filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantOFFICE OF MANAGEMENT AND BUDGET
DefendantCOUNCIL ON ENVIRONMENTAL QUALITY
DefendantCOUNCIL ON ENVIRONMENTAL QUALITY
TERMINATED: 10/20/2017
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Opinion/Order [20]
FOIA Project Annotation: Judge Rudolph Contreras has ruled that OMB has not shown that Exemption 5 (privileges) applies to calendar entries requested by Property of the People and researcher Ryan Shapiro. Property of the People and Shapiro requested visitor, phone logs, and calendar entries for OMB Director Mick Mulvaney. OMB told Property of the People and Shapiro that it did not maintain visitor or phone logs but would respond to his request for calendar entries. OMB withheld some entries, citing both the presidential communications privilege and the deliberative process privilege. Property of the People did not challenge OMB's application of the deliberative process privilege to withhold the subject matter of meetings, but argued that the names of attendees, the location of meetings, and the inviter were not privileged. OMB agreed to disclose the information in some instances but continued to withhold it for other meetings. Under the presidential communications privilege, OMB withheld calendar entries that related to meetings involving the President, Vice President or senior advisors. Contreras found that details about who attended meetings did not qualify under the deliberative process privilege. He noted that "though Plaintiffs might infer the general topic of a meeting from a list of meeting participants �" the most potentially revelatory information in dispute �" release of this information would expose no suggestions, no recommendations, no proposals, and no other aspect of the agency communications, and it is not apparent how disclosure of this information might in any way discourage candid discussion within the agency." He added that "with respect to the locations of the meeting and the name of the 'inviter' who scheduled the meetings, the Court struggles to imagine anything one could possibly glean about the agency's deliberations from this information." Contreras then found that OMB had applied the presidential communications privilege far too broadly. He pointed out that OMB "may have asserted the privilege with respect to meetings between individuals who are decidedly not immediate White House advisers under Circuit precedent," observing that "OMB appears to misapprehend the reach of the privilege, as the heads of agencies that are subject to FOIA are not immediate White House advisers for purposes of the application of the privilege." He rejected OMB's claim that preparation for meetings was privileged. Instead, he noted that "OMB cannot rely on the notion that preparatory meetings served some Executive Branch function to claim that a privilege specially related to the unique role of the President applies." Contreras observed that "OMB is not solely an advisor to the president. And the mere fact of communications between the OMB Director and White House staff or agency staff on matters of policy is insufficient to show that calendar entries concern matters of presidential decisionmaking."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative
Opinion/Order [36]
FOIA Project Annotation: Judge Rudolph Contreras has ruled that OMB properly withheld eight Outlook calendar entries for National Security Council meetings pertaining to foreign relations, transportation, or infrastructure policy under Exemption 5 (privileges) under the presidential communications privilege. The OMB records had been requested by researcher Ryan Shapiro and his organization Property of the People. In an earlier opinion in the case, Contreras had found that OMB's generalized description of the records was too vague to carry its burden of proof and told the agency to provide a supplemental explanation. The agency did so and this time around Contreras found the agency's explanations sufficient. Although OMB acknowledged that the President had not attended any of the meetings, it argued that the presidential communications privilege applied because the NSC's primary role was to advise the President. Shapiro and Property of the People argued that since the NSC was primarily made up of Cabinet officials or other agency heads, whose primary responsibilities were to run their respective agencies, OMB had not shown that the meeting qualified under the presidential communications privilege. Contreras rejected that claim, noting that "the meetings at issue in this case, are generally chaired by the National Security Advisor, who may delegate the role to the Homeland Security Advisor. Each of these positions easily qualifies as an immediate White House advisor for purposes of the privilege " a premise that even Plaintiffs do not appear to dispute." Shapiro and Property of the People also argued that the presidential communications privilege did not cover agency heads in their capacity of leading their agencies rather than advising the President. But Contreras observed that "Plaintiffs' misplaced focus on the mere presence of dual hat advisers at the meetings changes nothing. What matters for purposes of the privilege is who solicits the communication, and whether that person also ultimately receives it. In the context of NSC meetings, it is the President, or the National Security Advisor, or the Homeland Security Advisor who does the soliciting, as it is those individuals who set the agenda and, confer the invitations." Contreras noted that since the D.C. Circuit had previously ruled that the NSC was not an agency for FOIA purposes, Shapiro and Property of the People could not obtain the records directly from the NSC. He pointed out that "Plaintiffs could not obtain NSC meeting calendars from the NSC itself because those calendars are not 'agency records' for purposes of FOIA. Yet Plaintiffs essentially want to indirectly 'reconstruct' those calendars through requests to an entity, OMB, whose records are subject to the Act. From a practical standpoint, such a regime makes little sense [since] it would raise separation-of-powers concerns because it would threaten the ability of the President and his closest advisors to hold meetings and seek advice in confidence."
Issues: Exemption 5 - Privileges, Agency - Federal
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-08-171COMPLAINT against COUNCIL ON ENVIRONMENTAL QUALITY, OFFICE OF MANAGEMENT AND BUDGET ( Filing fee $ 400 receipt number 0090-5079816) filed by PROPERTY OF THE PEOPLE, INC., RYAN NOAH SHAPIRO. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Light, Jeffrey) (Entered: 08/17/2017)
2017-08-172LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by PROPERTY OF THE PEOPLE, INC. (Light, Jeffrey) (Entered: 08/17/2017)
2017-08-17Case Assigned to Judge Rudolph Contreras. (md) (Entered: 08/18/2017)
2017-08-183SUMMONS (4) Issued Electronically as to COUNCIL ON ENVIRONMENTAL QUALITY, OFFICE OF MANAGEMENT AND BUDGET, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 08/18/2017)
2017-09-284RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. COUNCIL ON ENVIRONMENTAL QUALITY served on 9/6/2017, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 09/06/2017., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/6/2017. ( Answer due for ALL FEDERAL DEFENDANTS by 10/6/2017.) (Light, Jeffrey) (Entered: 09/28/2017)
2017-09-295RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. OFFICE OF MANAGEMENT AND BUDGET served on 9/11/2017 (Light, Jeffrey) (Entered: 09/29/2017)
2017-10-066NOTICE of Appearance by Joseph C. Dugan on behalf of All Defendants (Dugan, Joseph) (Entered: 10/06/2017)
2017-10-067ANSWER to Complaint by COUNCIL ON ENVIRONMENTAL QUALITY, OFFICE OF MANAGEMENT AND BUDGET. (Attachments: # 1 Exhibit A (FOIA request to OMB), # 2 Exhibit B (FOIA request to CEQ), # 3 Exhibit C (Determination letter from CEQ))(Dugan, Joseph) (Entered: 10/06/2017)
2017-10-06MINUTE ORDER: It is hereby ORDERED that the parties shall meet, confer, and jointly submit a proposed briefing schedule by October 20, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on October 6, 2017. (lcrc2) (Entered: 10/06/2017)
2017-10-11Set/Reset Deadlines: Meet & Confer Statement due by 10/20/2017. (tj) (Entered: 10/11/2017)
2017-10-198STIPULATION of Dismissal with Prejudice of the Council on Environmental Quality by COUNCIL ON ENVIRONMENTAL QUALITY, OFFICE OF MANAGEMENT AND BUDGET. (Dugan, Joseph) (Entered: 10/19/2017)
2017-10-199Joint STATUS REPORT by COUNCIL ON ENVIRONMENTAL QUALITY, OFFICE OF MANAGEMENT AND BUDGET. (Dugan, Joseph) (Entered: 10/19/2017)
2017-10-23MINUTE ORDER adopting the proposed schedule in 9 the parties' joint status report: It is hereby ORDERED that the parties shall meet, confer, and jointly submit a status report, including, if necessary, a proposed schedule to govern further proceedings in this case, by November 20, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on October 20, 2017. (lcrc2) (Entered: 10/23/2017)
2017-10-23Set/Reset Deadlines: Status Report due by 11/20/2017 (tj) (Entered: 10/23/2017)
2017-11-2010Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Dugan, Joseph) (Entered: 11/20/2017)
2017-11-20MINUTE ORDER adopting 10 the parties' proposed briefing schedule: It is hereby ORDERED that the following schedule shall govern further proceedings: Defendant shall file its motion for summary judgment by January 16, 2018; Plaintiffs shall file their opposition to Defendant's motion and their cross-motion for summary judgment by February 12, 2018; Defendant shall file its opposition to Plaintiffs' cross-motion and its reply in support of its own motion by February 26, 2018; Plaintiffs shall file their reply in support of their cross-motion by March 12, 2018. SO ORDERED. Signed by Judge Rudolph Contreras on November 20, 2017. (lcrc2) (Entered: 11/20/2017)
2017-11-21Set/Reset Deadlines: Summary Judgment motions due by 1/16/2018. Response to Motion for Summary Judgment due by 2/12/2018. Reply to Motion for Summary Judgment due by 2/26/2018. Cross Motions due by 2/12/2018. Response to Cross Motions due by 2/26/2018. Reply to Cross Motions due by 3/12/2018. (tj) (Entered: 11/21/2017)
2018-01-1511Consent MOTION for Extension of Time to File Summary Judgment Motion by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Dugan, Joseph) (Entered: 01/15/2018)
2018-01-16MINUTE ORDER: Upon consideration of 11 Defendant's Consent Motion for Extension of Time, it is hereby ORDERED that the following schedule shall govern summary judgment briefing: Defendant shall file its motion for summary judgment on or before January 18, 2018; Plaintiffs shall file their response to Defendant's motion and their cross-motion for summary judgment on or before February 15, 2018; Defendant shall file its reply in support of its own motion for summary judgment and response to Plaintiffs' motion for summary judgment by February 26, 2018; and Plaintiffs shall file their reply in support of their cross-motion for summary judgment by March 12, 2018. Signed by Judge Rudolph Contreras on January 16, 2018. (lcrc2) (Entered: 01/16/2018)
2018-01-17Set/Reset Deadlines: Cross Motions due by 2/15/2018. Response to Cross Motions due by 2/26/2018. Reply to Cross Motions due by 3/12/2018. Summary Judgment motions due by 1/18/2018. Response to Motion for Summary Judgment due by 2/15/2018. Reply to Motion for Summary Judgment due by 2/26/2018. (tj) (Entered: 01/17/2018)
2018-01-1812MOTION for Summary Judgment by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit A (Declaration of Heather Walsh, Vaughn), # 4 Exhibit B (Sample), # 5 Text of Proposed Order)(Dugan, Joseph) (Entered: 01/18/2018)
2018-02-1513Memorandum in opposition to re 12 MOTION for Summary Judgment filed by PROPERTY OF THE PEOPLE, INC., RYAN NOAH SHAPIRO. (Attachments: # 1 Exhibit 1, # 2 Statement of Facts, # 3 Text of Proposed Order)(Light, Jeffrey) (Entered: 02/15/2018)
2018-02-1514Cross MOTION for Summary Judgment by PROPERTY OF THE PEOPLE, INC., RYAN NOAH SHAPIRO (Attachments: # 1 Exhibit 1, # 2 Statement of Facts, # 3 Text of Proposed Order)(Light, Jeffrey) (Entered: 02/15/2018)
2018-02-1615ERRATA by PROPERTY OF THE PEOPLE, INC., RYAN NOAH SHAPIRO 14 Cross MOTION for Summary Judgment filed by PROPERTY OF THE PEOPLE, INC., RYAN NOAH SHAPIRO. (Attachments: # 1 Statement of Facts)(Light, Jeffrey) (Entered: 02/16/2018)
2018-02-2616REPLY to opposition to motion re 12 MOTION for Summary Judgment filed by OFFICE OF MANAGEMENT AND BUDGET. (Attachments: # 1 Statement of Facts, # 2 Exhibit A (Second Walsh Declaration), # 3 Exhibit B (Sample))(Dugan, Joseph) (Entered: 02/26/2018)
2018-02-2617RESPONSE re 14 Cross MOTION for Summary Judgment filed by OFFICE OF MANAGEMENT AND BUDGET. (Attachments: # 1 Statement of Facts, # 2 Exhibit A (Second Walsh Declaration), # 3 Exhibit B (Sample), # 4 Text of Proposed Order)(Dugan, Joseph) (Entered: 02/26/2018)
2018-03-1218REPLY to opposition to motion re 14 Cross MOTION for Summary Judgment filed by PROPERTY OF THE PEOPLE, INC., RYAN NOAH SHAPIRO. (Attachments: # 1 Exhibit 1 - Bates page 13)(Light, Jeffrey) (Entered: 03/12/2018)
2018-09-1419ORDER denying 12 Defendant's Motion for Summary Judgment, and granting in part and denying in part 14 Plaintiffs' Cross-Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on September 14, 2018. (lcrc2) (Entered: 09/14/2018)
2018-09-1420MEMORANDUM OPINION denying 12 Defendant's Motion for Summary Judgment, and granting in part and denying in part 14 Plaintiffs' Cross-Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on September 14, 2018. (lcrc2) (Entered: 09/14/2018)
2018-10-0521NOTICE of Change of Address by Joseph C. Dugan (Dugan, Joseph) (Entered: 10/05/2018)
2018-10-0522Joint MOTION for Extension of Time to File Renewed Motion for Summary Judgment , Joint MOTION for Briefing Schedule by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Dugan, Joseph) (Entered: 10/05/2018)
2018-10-09MINUTE ORDER granting 22 Joint Motion for Extension of Time: It is hereby ORDERED that Defendant shall file its renewed motion for summary judgment on or before November 19, 2018, and that Plantiffs shall file their response in opposition and their renewed cross-motion for summary judgment on or before December 19, 2018. It is FURTHER ORDERED that Defendant shall file its response to Plaintiffs' renewed cross-motion and its reply in support of its renewed motion on or before January 18, 2019; Plaintiffs shall file their reply in support of their renewed cross-motion on or before February 11, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on 10/9/2018. (lcrc2) (Entered: 10/09/2018)
2018-10-0923NOTICE of Appearance by Steven A. Myers on behalf of OFFICE OF MANAGEMENT AND BUDGET (Myers, Steven) (Entered: 10/09/2018)
2018-10-0924NOTICE of Change of Address by Joseph C. Dugan (Dugan, Joseph) (Entered: 10/09/2018)
2018-11-1925Second MOTION for Summary Judgment by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Statement of Facts, # 2 Exhibit A - Third Declaration of Heather V. Walsh, # 3 Exhibit B - Declaration of Emma K. Doyle, # 4 Text of Proposed Order)(Myers, Steven) (Entered: 11/19/2018)
2018-12-1926Memorandum in opposition to re 25 Second MOTION for Summary Judgment filed by PROPERTY OF THE PEOPLE, INC., RYAN NOAH SHAPIRO. (Attachments: # 1 Statement of Facts, # 2 Exhibit, # 3 Text of Proposed Order)(Light, Jeffrey) (Entered: 12/19/2018)
2018-12-1927Cross MOTION for Summary Judgment (Renewed) by PROPERTY OF THE PEOPLE, INC., RYAN NOAH SHAPIRO (Attachments: # 1 Statement of Facts, # 2 Exhibit, # 3 Text of Proposed Order)(Light, Jeffrey) (Entered: 12/19/2018)
2019-01-1028Unopposed MOTION to Stay Proceedings in Light of Lapse of Appropriations by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Dugan, Joseph) (Entered: 01/10/2019)
2019-01-10ORDER granting in part 28 Defendant's Unopposed Motion to Stay Proceedings in Light of Lapse of Appropriations: It is hereby ORDERED that the motion is GRANTED IN PART. The remaining briefing deadlines are extended as follows: Defendant shall file its response to Plaintiffs' motion for summary judgment and its reply in support of its own motion for summary judgment by February 18, 2019. Plaintiffs shall file their reply in support of their motion for summary judgment by March 13, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on January 10, 2019. (lcrc2) (Entered: 01/10/2019)
2019-01-2829NOTICE of Restoration of Appropriations by OFFICE OF MANAGEMENT AND BUDGET re Order on Motion to Stay,, (Dugan, Joseph) (Entered: 01/28/2019)
2019-02-1430Consent MOTION for Extension of Time to File Response/Reply by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Dugan, Joseph) (Entered: 02/14/2019)
2019-02-14MINUTE ORDER granting 30 Motion for Extension of Time: It is hereby ORDERED that the motion is GRANTED. Defendant will file its response to Plaintiffs' cross-motion for summary judgement and its reply in support of its own motion for summary judgment by February 22, 2019. Plaintiffs will then file their reply in support of their cross-motion for summary judgment by March 20, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on February 14, 2019. (lcrc2) (Entered: 02/14/2019)
2019-02-14Set/Reset Deadlines: Defendant's Response to Cross Motion and Reply in Support of Motion for Summary Judgment due by 2/22/2019. Plaintiff's Reply in Support of Cross Motion due by 3/20/2019. (zjd) (Entered: 02/15/2019)
2019-02-2231RESPONSE re 27 Cross MOTION for Summary Judgment (Renewed) filed by OFFICE OF MANAGEMENT AND BUDGET. (Attachments: # 1 Exhibit (Reply to Plaintiffs' Response to SOF, Response to Plaintiffs' SOF), # 2 Text of Proposed Order)(Dugan, Joseph) (Entered: 02/22/2019)
2019-02-2232REPLY to opposition to motion re 25 Second MOTION for Summary Judgment filed by OFFICE OF MANAGEMENT AND BUDGET. (Attachments: # 1 Exhibit (Reply to Plaintiffs' Response to SOF, Response to Plaintiffs' SOF), # 2 Text of Proposed Order)(Dugan, Joseph) (Entered: 02/22/2019)
2019-02-2533NOTICE OF WITHDRAWAL OF APPEARANCE as to OFFICE OF MANAGEMENT AND BUDGET. Attorney Joseph C. Dugan terminated. (Dugan, Joseph) (Entered: 02/25/2019)
2019-03-2034REPLY to opposition to motion re 27 Cross MOTION for Summary Judgment (Renewed) filed by PROPERTY OF THE PEOPLE, INC., RYAN NOAH SHAPIRO. (Light, Jeffrey) (Entered: 03/20/2019)
2019-08-1935ORDER granting 25 Defendant's Motion for Summary Judgment and denying 27 Plaintiffs' Cross-Motion for Summary Judgment: See document for details. Signed by Judge Rudolph Contreras on August 19, 2019. (lcrc2) (Entered: 08/19/2019)
2019-08-1936MEMORANDUM OPINION granting 25 Defendant's Motion for Summary Judgment and denying 27 Plaintiffs' Cross-Motion for Summary Judgment: See document for details. Signed by Judge Rudolph Contreras on August 19, 2019. (lcrc2) (Entered: 08/19/2019)
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