Case Detail

FOIA Project Annotation: Ruling on an issue of first impression, Judge Ellen Segal Huvelle has found that the Presidential Policy Directive on Global Development, communicating policy on national security and foreign relations, is not protected by the presidential communications privilege and must be disclosed by the State Department in response to a request from the Center for Effective Government. Huvelle pointed out that the directive, known as PPD-6, "is a widely-publicized, non-classified Presidential Policy Directive on issues of foreign aid and development that has been distributed broadly within the Executive Branch and used by recipient agencies to guide decision-making. Even though issued as a directive, the PPD-6 carries the force of law as policy guidance to be implemented by recipient agencies, and it is the functional equivalent of an Executive Order." The State Department claimed the entire directive was protected by Exemption 5 (privileges), specifically the presidential communications privilege. Relying on the handful of cases analyzing the presidential communications privilege, particularly In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), Huvelle noted that "the scope of the privilege is to be 'construed as narrowly as is consistent with ensuring that the confidentiality of the President's decision-making process is adequately protected.' As such, it 'only applies to communications that. . .advisers and their staff author or solicit and receive in the course of performing their function of advising the President on official government matters' and does not generally 'extend to staff outside the White House in executive branch agencies.'" The government admitted the directive had been widely disseminated within the executive branch, but took the position that the privilege applied "because, regardless of how widely the document has been distributed within the Executive Branch, it originated with the President, and. . .the privilege protects the President's final decisions." However, Huvelle pointed out that "the D.C. Circuit has never actually applied the presidential communications privilege to a 'final' presidential directive or decision. Instead, the privilege's application to 'final' decisions, as in any other circumstance, is no broader than necessary to ensure that the confidentiality of the presidential decision-making process, and its concomitant decision-making benefits, are 'adequately protected.'" She observed that "when a court decides whether the privilege extends to a document or class of documents, it must ask whether application of the privilege is necessary to protect the confidentiality of communications as between the President and his advisers." Huvelle pointed out that "in ruling in dictum that the privilege can apply to 'final' documents, the [D.C. Circuit in In re Sealed Case] rested on the fact that the privilege also protects the President's ability to 'operate effectively.' However, this broad purpose is not implicated in this case." Indeed, Huvelle explained, this case did not involve a quintessential and nondelegable Presidential power. Nor was the PPD-6 "relevatory of the President's deliberations" since "the PPD-6 was distributed far beyond the President's close advisors and its substance was widely discussed by the President in the media." She observed that In re Sealed Case did not support the conclusion that "the D.C. Circuit specifically considered, no less endorsed, the extension of the presidential communications privilege to presidential communications distributed and implemented widely throughout the Executive Branch." Moreover, Huvelle indicated that "there is no evidence that the PPD-6 was intended to be, or has been treated as, a confidential presidential communication." Aside from the fact the directive was not classified, Huvelle pointed out that "the fact sheet released for PPD-6 described in detail the goals and initiatives set forth therein, copying verbatim many portions of the PPD-6. . .Although the government is correct that the disclosure of portions of a document subject to the presidential communications privilege does not waive the privilege as to the entire document, the widely publicized nature of the PPD-6 is important in considering the confidentiality interests implicated by the directive's disclosure under FOIA." While Huvelle agreed with the government that limiting PPD-6's distribution to those with a need-to-know implicated confidentiality concerns, Huvelle criticized the government for failing to define the scope of need-to-know in this case. She pointed out that "as in the attorney-client privilege context, the scope of the 'need to know' is relevant to the presidential communications privilege, where, for the privilege to apply, the reason a given recipient 'needs to know' must implicate the purposes that animate the privilege: the promotion of candor and effective presidential decision-making." She explained that "just like agency advisory documents that never reach the Office of the President, documents distributed from the Office of the President for non-advisory purposes do not implicate the goals of candor, opinion-gathering, and effective decision-making that confidentiality under the privilege is meant to protect." She added that "simply put, the purposes of the privilege are not furthered by protecting from public disclosure presidential directives distributed beyond the President's closest advisors for non-advisory purposes." Even worse for the government's position, Huvelle pointed out that there was substantial evidence that the directive had been disseminated for non-advisory purposes. She indicated that the government's response to this evidence was to insist that "the only relevant question is 'whether the document at issue originated with (or at the request of) the President or one of his close advisors' and if the answer is yes, the fact that the 'original recipients of the document subsequently distributed it beyond the President's inner circle' is irrelevant." Huvelle flatly rejected that assertion. Instead, she pointed out that "no court has suggested that the mere fact that a President's direct involvement in a communication, either as an author or recipient, renders it automatically protected. Instead, the privilege has always been limited to certain types of communications directly involving the President. . ." Huvelle was disturbed by what she called the "unbounded nature of the government's position." She indicated that "the purpose underlying the distribution of a presidential communication beyond the President's closest advisers is paramount. If distribution is limited to advisory purposes, the privilege may apply; if distribution is far broader, the purposes animating the privilege will not justify its application." Huvelle concluded that if she accepted the government's position, "there would be no effective limitation on a President's ability to engage in 'secret law' and, at least for presidential directives, FOIA would become 'more. . .a withholding statute than a disclosure statute.'"
Issues: Exemption 5 - Privileges, Public domain

Date Filed	Doc #	Docket Text
2013-04-01	1	COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 0090-3267736) filed by CENTER FOR EFFECTIVE GOVERNMENT. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Summons to U.S. Department of State, # 3 Summons Summons to U.S. Agency for International Development, # 4 Summons Summons to U.S. Attorney General, # 5 Summons Summons to U.S. Attorney for the District of Columbia)(Murray, Julie) (Entered: 04/01/2013)
2013-04-01	2	Corporate Disclosure Statement by CENTER FOR EFFECTIVE GOVERNMENT. (Murray, Julie) (Entered: 04/01/2013)
2013-04-01		Case Assigned to Judge Ellen S. Huvelle. (kb) (Entered: 04/01/2013)
2013-04-01	3	ELECTRONIC SUMMONS (4) Issued as to U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, U.S. DEPARTMENT OF STATE, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Consent Form, # 5 Notice of Consent)(kb) (Entered: 04/01/2013)
2013-04-02	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/2/2013. Answer due for ALL FEDERAL DEFENDANTS by 5/2/2013. (Murray, Julie) (Entered: 04/02/2013)
2013-04-17	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General April 8, 2013. (Attachments: # 1 Exhibit Return Receipt)(Murray, Julie) (Entered: 04/17/2013)
2013-04-17	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT served on 4/8/2013; U.S. DEPARTMENT OF STATE served on 4/10/2013 (Attachments: # 1 Exhibit State Department Return Receipt, # 2 Exhibit USAID Return Receipt)(Murray, Julie) (Entered: 04/17/2013)
2013-05-01	7	NOTICE of Appearance by Ethan Price Davis on behalf of All Defendants (Davis, Ethan) (Entered: 05/01/2013)
2013-05-01	8	ANSWER to Complaint by U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, U.S. DEPARTMENT OF STATE.(Davis, Ethan) (Entered: 05/01/2013)
2013-05-03		MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. As the requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil procedure do not apply, it is hereby ORDERED that the parties shall confer and file a joint proposed briefing schedule by May 10, 2013. Signed by Judge Ellen S. Huvelle on May 3, 2013. (AG) (Entered: 05/03/2013)
2013-05-03		Set/Reset Deadlines: Joint proposed briefing schedule due by 5/10/2013. (zmm, ) (Entered: 05/03/2013)
2013-05-08	9	Joint MOTION for Briefing Schedule by CENTER FOR EFFECTIVE GOVERNMENT (Attachments: # 1 Text of Proposed Order)(Murray, Julie) (Entered: 05/08/2013)
2013-05-09		MINUTE ORDER granting 9 Joint Motion for Briefing Schedule: Upon consideration of the joint motion to set the briefing schedule, it is hereby ORDERED that defendants shall file their motion for summary judgment and a Vaughn index or declaration by June 21, 2013; plaintiff shall file its combined opposition and cross-motion for summary judgment by August 1, 2013; defendants shall file their combined reply and opposition to plaintiff's motion for summary judgment by September 3, 2013; and plaintiff shall file a reply on or before October 3, 2013. Signed by Judge Ellen S. Huvelle on May 9, 2013. (AG) (Entered: 05/09/2013)
2013-05-09		Set/Reset Deadlines: Summary Judgment motion and Vaughn Index or declaration due by 6/21/2013. Response to Motion for Summary Judgment and Cross Motion for Summary Judgment due by 8/1/2013. Reply to Motion for Summary Judgment and Response to Cross Motion for Summary Judgment due by 9/3/2013. Cross Motion Reply due 10/3/2013. (zmm, ) (Entered: 05/09/2013)
2013-06-17	10	NOTICE of Appearance by Adina Rosenbaum on behalf of CENTER FOR EFFECTIVE GOVERNMENT (Rosenbaum, Adina) (Entered: 06/17/2013)
2013-06-21	11	MOTION for Summary Judgment by U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Memorandum in Support, # 2 Declaration of Daniel Sanborn, # 3 Declaration of Sheryl Walter, # 4 Declaration of Sylvia Lankford, # 5 Statement of Facts, # 6 Text of Proposed Order)(Davis, Ethan) (Entered: 06/21/2013)
2013-07-09	12	MOTION to Strike 11 MOTION for Summary Judgment 's Declaration of Daniel Sanborn by CENTER FOR EFFECTIVE GOVERNMENT (Attachments: # 1 Text of Proposed Order)(Murray, Julie) (Entered: 07/09/2013)
2013-07-23	13	Memorandum in opposition to re 12 MOTION to Strike 11 MOTION for Summary Judgment 's Declaration of Daniel Sanborn filed by U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, UNITED STATES DEPARTMENT OF STATE. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Davis, Ethan) (Entered: 07/23/2013)
2013-07-30	14	REPLY to opposition to motion re 12 MOTION to Strike 11 MOTION for Summary Judgment 's Declaration of Daniel Sanborn filed by CENTER FOR EFFECTIVE GOVERNMENT. (Murray, Julie) (Entered: 07/30/2013)
2013-08-01	15	Cross MOTION for Summary Judgment by CENTER FOR EFFECTIVE GOVERNMENT (Attachments: # 1 Exhibit Declaration of Julie A. Murray, # 2 Exhibit Declaration of Gavin R. Baker, # 3 Text of Proposed Order)(Murray, Julie) (Entered: 08/01/2013)
2013-08-01	16	Memorandum in opposition to re 11 MOTION for Summary Judgment filed by CENTER FOR EFFECTIVE GOVERNMENT. (Attachments: # 1 Exhibit Declaration of Julie A. Murray, # 2 Exhibit Declaration of Gavin R. Baker, # 3 Text of Proposed Order)(Murray, Julie) (Entered: 08/01/2013)
2013-08-30	17	REPLY to opposition to motion re 11 MOTION for Summary Judgment filed by U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, UNITED STATES DEPARTMENT OF STATE. (Davis, Ethan) (Entered: 08/30/2013)
2013-08-30	18	Memorandum in opposition to re 15 Cross MOTION for Summary Judgment filed by U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, UNITED STATES DEPARTMENT OF STATE. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Davis, Ethan) (Entered: 08/30/2013)
2013-09-19	19	NOTICE OF SUBSTITUTION OF COUNSEL by Kyle Renee Freeny on behalf of All Defendants Substituting for attorney Ethan Davis (Freeny, Kyle) (Entered: 09/19/2013)
2013-09-30	20	REPLY to opposition to motion re 15 Cross MOTION for Summary Judgment filed by CENTER FOR EFFECTIVE GOVERNMENT. (Murray, Julie) (Entered: 09/30/2013)
2013-11-08	21	ORDER. In consideration of parties' briefings on summary judgment, it is hereby ORDERED that defendants shall produce to the Court for in camera inspection by November 15, 2013, a copy of the Presidential Policy Directive on Global Development. (see order.) Signed by Judge Ellen S. Huvelle on November 8, 2013. (lcesh1) (Entered: 11/08/2013)
2013-11-12		Set/Reset Deadlines: Defendants to produce copy of Presidential Policy Directive on Global Development for in camera inspection by 11/15/2013. (zmm, ) (Entered: 11/12/2013)
2013-11-15	22	NOTICE of Filing of Document for In Camera Inspection by U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, UNITED STATES DEPARTMENT OF STATE (Freeny, Kyle) (Entered: 11/15/2013)
2013-12-17	23	MEMORANDUM OPINION. Signed by Judge Ellen S. Huvelle on December 17, 2013. (lcesh1) (Entered: 12/17/2013)
2013-12-17	24	ORDER denying 11 Defendants' Motion for Summary Judgment, denying as moot 12 Plaintiff's Motion to Strike, and granting 15 Plaintiff's Motion for Summary Judgment for the reasons stated in the accompanying 23 Memorandum Opinion. It is ORDERED that defendants disclose to plaintiff the Presidential Policy Directive on Global Development. Signed by Judge Ellen S. Huvelle on December 17, 2013. (lcesh1) (Entered: 12/17/2013)
2013-12-23	25	Consent MOTION for Extension of Time to Seek Fees and Costs by CENTER FOR EFFECTIVE GOVERNMENT (Attachments: # 1 Text of Proposed Order)(Murray, Julie) (Entered: 12/23/2013)
2013-12-24		MINUTE ORDER granting 25 Consent Motion for Extension of Time: Upon consideration of plaintif's consent motion for an enlargement of time for plaintiff to seek fees and costs, it is hereby ORDERED that the plaintiff may petition for attorneys fees and any related nontaxable expenses and file a bill of costs up to and including 21 days after the deadline to notice an appeal if no appeal is filed or, if an appeal is taken, up to and including 21 days after issuance of the mandate by the U.S. Court of Appeals for the District of Columbia Circuit. SO ORDERED. Signed by Judge Ellen S. Huvelle on December 24, 2013. (AG) (Entered: 12/24/2013)
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