Case Detail

FOIA Project Annotation: Judge Reggie Walton has ruled that five memos written for President Barack Obama on various issues pertaining to a potential operation to kill Osama bin Laden are protected by Exemption 5 (privileges) as well as Exemption 1 (national security) and Exemption 3 (other statutes). After the existence of the memos became public, Judicial Watch requested them. The intelligence agencies that had written the memos claimed they were protected by the Presidential communications privilege, the attorney-client privilege and, alternatively, various Exemption 3 statutes protecting intelligence information. Judicial Watch argued that the memos were not written by close presidential advisors and were did not qualify for the privilege. Walton, rejected the claim, noting that "the defendants' burden is not limited to demonstrating that the authors are senior presidential advisors; rather, the defendants may satisfy their burden if they are able to show that the five requested memoranda were documents 'solicited and received by those members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the [documents] relate.'" Judicial Watch contended that the presidential communications privilege only applied to the fact of communication and not to the content of the documents themselves. Walton pointed out that "this Circuit has made clear, however, that the presidential communications privilege applies to documents reviewed, solicited, or received by the President or his immediate senior advisors tasked with 'broad and significant responsibility for investigating and formulating advice.'" Walton explained that since he had found the memos were protected by the presidential communications privilege he did not need to consider whether they were protected by the deliberative process privilege as well. However, he went on to indicate that the memos qualified under the attorney-client privilege. He observed that "because the defendants have provided more than conclusory statements regarding the legal advice requested, the nature of the confidential information provided in response, and the need to preserve the confidentiality of that information in the five memoranda, the Court concludes that the defendants have sufficiently demonstrated the applicability of the attorney-client privilege to the five requested memoranda." Walton found the agencies had shown that the memos were protected by Exemption 1 and Exemption 3 as well.
Issues: Exemption 5 - Privileges, Exemption 5 - Privileges - Attorney-client privilege

Date Filed	Doc #	Docket Text
2016-02-24	1	COMPLAINT against All Defendants U.S. Department of Defense; Central Intelligence Agency ( Filing fee $ 400 receipt number 0090-4425313) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons DOD, # 3 Summons CIA, # 4 Summons US Attorney, # 5 Summons US Attorney General)(Burke, Lauren) (Entered: 02/24/2016)
2016-02-24	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. (Burke, Lauren) (Entered: 02/24/2016)
2016-02-24	3	Case Assigned to Judge Reggie B. Walton. (dr) (Entered: 02/25/2016)
2016-02-25	4	SUMMONS (4) Issued Electronically as to CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(dr) (Entered: 02/25/2016)
2016-03-04	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/3/2016. ( Answer due for ALL FEDERAL DEFENDANTS by 4/2/2016.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 3/3/2016., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF DEFENSE served on 3/2/2016 (Attachments: # 1 Declaration of C. Rotaru)(Burke, Lauren) (Entered: 03/04/2016)
2016-04-15	6	Consent MOTION for Extension of Time to File Answer , Nunc Pro Tunc, with Answer Lodged by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE (Attachments: # 1 Exhibit Lodged Answer, # 2 Text of Proposed Order)(Bernie, Andrew) (Entered: 04/15/2016)
2016-04-15		MINUTE ORDER granting 6 Motion for Extension of Time to Answer. Upon consideration of the Defendants' Consent Motion for Nunc Pro Tunc Extension of Time to Respond to Complaint, and in light of the parties' consent, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the Clerk of the Clerk is directed to file the defendants' answer to the complaint, ECF No. 6-1, on the docket. Signed by Judge Reggie B. Walton on April 15, 2016. (lcrbw2) (Entered: 04/15/2016)
2016-04-15	7	GENERAL ORDER. Signed by Judge Reggie B. Walton on April 15, 2016. (lcrbw2) (Entered: 04/15/2016)
2016-04-15	8	ANSWER to Complaint by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE.(td) (Entered: 04/15/2016)
2016-04-22	9	MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Bernie, Andrew) (Entered: 04/22/2016)
2016-04-27		MINUTE ORDER. Upon consideration of the Joint Meet and Confer Statement, and in light of the parties' consent, it is hereby ORDERED that the following schedule shall govern further proceedings in this case: 1. On or before June 13, 2016, the defendants shall complete their production of all non-exempt records responsive to the plaintiff's FOIA request as narrowed by agreement of the parties. 2. On or before June 17, 2016, the plaintiff shall inform the defendants whether it believes motions practice will be necessary. 3. On before June 22, 2016, the parties shall file a Joint Status Report informing the Court as to whether motions practice will be necessary. 4. If motions practice is deemed necessary by the parties, then the following briefing schedule will apply: a. July 22, 2016 for the defendants' motion for summary judgment. b. August 22, 2016 for the plaintiff's opposition to the defendants' motion, and any cross-motion for summary judgment by the plaintiff. c. September 19, 2016 for the defendants' reply in support of their motion for summary judgment and opposition to the plaintiff's cross-motion, if any. d. October 5, 2016 for the plaintiff's reply in support of its cross-motion for summary judgment, if any. Signed by Judge Reggie B. Walton on April 27, 2016. (lcrbw2) (Entered: 04/27/2016)
2016-04-28		Set/Reset Deadlines: Status Report due by 6/22/2015 Summary Judgment motions due by 7/22/2016. Response to Motion for Summary Judgment due by 8/22/2016. Reply to Motion for Summary Judgment due by 9/19/2016. Plaintiff's Reply due by 10/5/2016 (hs) (Entered: 04/28/2016)
2016-06-22	10	Joint STATUS REPORT by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE. (Bernie, Andrew) (Entered: 06/22/2016)
2016-07-15	11	Consent MOTION for Extension of Time to File Defendants' Motion for Summary Judgment by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Bernie, Andrew) (Entered: 07/15/2016)
2016-07-18		MINUTE ORDER granting 11 Motion for Extension of Time to File. Upon consideration of the Defendant's Consent Motion for Extension of Time to File Motion for Summary Judgment, and in light of the parties' consent, it is hereby ORDERED that the motion is granted. It is further ORDERED that the defendants shall file their motion for summary judgment by August 17, 2016. It is further ORDERED that the plaintiff shall file its opposition to the defendants' motion for summary judgment or cross-motion, if any, by September 19, 2016. It is further ORDERED that the defendants shall file their reply in support of their motion for summary judgment and opposition to plaintiff's cross-motion by October 11, 2016. It is further ORDERED that the plaintiff shall file its reply in support of its cross-motion by November 1, 2016. Signed by Judge Reggie B. Walton on July 18, 2016. (lcrbw2) (Entered: 07/18/2016)
2016-07-18		Set/Reset Deadlines: Defendants' Summary Judgment motion due by 8/17/2016. Response to Motion for Summary Judgment due by 9/19/2016. Reply to Motion for Summary Judgment due by 10/11/2016. Plaintiff's Reply due by 11/1/2016. (hs) (Entered: 07/18/2016)
2016-08-09	12	NOTICE of Appearance by Stephen McCoy Elliott on behalf of CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE (Elliott, Stephen) (Entered: 08/09/2016)
2016-08-17	13	MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE (Attachments: # 1 Memorandum in Support, # 2 Exhibit A - Declaration of Antoinette B. Shiner, # 3 Exhibit B - Declaration of Mark H. Herrington, # 4 Statement of Facts, # 5 Text of Proposed Order)(Elliott, Stephen) (Entered: 08/17/2016)
2016-09-15	14	Consent MOTION for Extension of Time to File Plaintiff's Opposition and Cross-Motion by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Burke, Lauren) (Entered: 09/15/2016)
2016-09-16		MINUTE ORDER. Upon consideration of the Plaintiff's Consent Motion for Extension of Time to File Opposition to Motion for Summary Judgment, and in light of the defendants' consent and for good cause shown, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the plaintiff shall file its opposition to the defendants', the United States Department of Defense and the Central Intelligence Agency (collectively, the "defendants") motion for summary judgment and its cross-motion for summary judgment on or before September 26, 2016. It is further ORDERED that the defendants' shall file their reply in support of their motion for summary judgment and their opposition to the plaintiff's cross-motion for summary judgment on or before October 18, 2016. It is further ORDERED that the plaintiff shall file its reply in support for its cross-motion for summary judgment on or before November 8, 2016. Signed by Judge Reggie B. Walton on September 16, 2016. (lcrbw2) (Entered: 09/16/2016)
2016-09-16		Set/Reset Deadlines: Response to Motion for Summary Judgment/Cross Motion due by 9/26/2016; Reply to Motion for Summary Judgment/Response to Cross Motion due by 10/18/2016; Reply in support to Cross Motion due by 11/8/2016 (hs) (Entered: 09/16/2016)
2016-09-27	15	Memorandum in opposition to re 13 MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Statement of Facts Plaintiff's Statement of Material Facts, # 2 Text of Proposed Order)(Burke, Lauren) (Entered: 09/27/2016)
2016-09-27	16	Cross MOTION for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Burke, Lauren) (Entered: 09/27/2016)
2016-09-27	17	MOTION for Leave to File Request to Accept Memorandum and Cross Motion as Timely Filed by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Burke, Lauren) (Entered: 09/27/2016)
2016-09-27		MINUTE ORDER. Upon consideration of the plaintiff's Motion to Accept as Timely Filed Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment and Cross Motion for Summary Judgment, and in light of the defendants' consent, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment and its Cross Motion for Summary Judgment are DEEMED TIMELY FILED. Signed by Judge Reggie B. Walton on September 27, 2016. (lcrbw2) (Entered: 09/27/2016)
2016-10-18	18	REPLY to opposition to motion re 13 MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE. (Attachments: # 1 Text of Proposed Order)(Elliott, Stephen) (Entered: 10/18/2016)
2016-10-18	19	Memorandum in opposition to re 16 Cross MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE. (Attachments: # 1 Text of Proposed Order)(Elliott, Stephen) (Entered: 10/18/2016)
2016-11-02	20	NOTICE of Appearance by Paul J. Orfanedes on behalf of JUDICIAL WATCH, INC. (Orfanedes, Paul) (Entered: 11/02/2016)
2016-11-03	21	Consent MOTION for Extension of Time to File Response/Reply as to 16 Cross MOTION for Summary Judgment (Extension Requested for Reply to Defendants' Opposition to Cross Motion) by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Orfanedes, Paul) (Entered: 11/03/2016)
2016-11-04		MINUTE ORDER. Upon consideration of the plaintiff's Consent Motion for Extension of Time, and for good cause shown, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the plaintiff shall file its reply to the defendants' opposition to its cross-motion for summary judgment on or before December 1, 2016. Signed by Judge Reggie B. Walton on November 4, 2016. (lcrbw2) (Entered: 11/04/2016)
2016-11-04		Set/Reset Deadlines: Plaintiff's Reply to Cross Motion due by 12/1/2016. (hs) (Entered: 11/04/2016)
2016-12-01	22	REPLY to opposition to motion re 16 Cross MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Orfanedes, Paul) (Entered: 12/01/2016)
2017-03-28	23	ORDER. In accordance with the attached Order, it is hereby ORDERED that the Defendants' Motion for Summary Judgment, ECF No. 13, is GRANTED. It is further ORDERED that the Plaintiff's Cross-Motion for Summary Judgment, ECF No. 16, is DENIED. It is further ORDERED that this case is CLOSED. Signed by Judge Reggie B. Walton on March 28, 2017. (lcrbw2) (Entered: 03/28/2017)
2017-03-28	24	MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on March 28, 2017. (lcrbw2) (Entered: 03/28/2017)
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