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

8/7/2019 CREW v. DOJ: Re: Valerie Plame: 10/10/08 - DOJs Motion for Summary Judgment

1/73

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

JUSTICES 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

Case 1:08-cv-01468-EGS Document 8 Filed 10/10/2008 Pag


2/73





)Plaintiff )

) No. 1:08-cv-01468 (EGS)


)


)

Defendant. )

____________________________________ )

UNITED STATES DEPARTMENT OF JUSTICES 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




3/73

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



4/73

1

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 Wilsons 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 Presidents January 2003 State of the Union Address, possible responses to inquiries about

the accuracy of a statement in the Presidents address, and the decision to send Ms. Plames

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 Committees

investigation, made available to the Committee staff for their review reports of interviews with



5/73

2

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

Committees 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 DOJs 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). CREWs request sought transcripts, reports, notes and other documents

relating to any interviews outside the presence of the grand jury of Vice President Richard B.



6/73

3

Cheney that are part of Special Counsel Patrick Fitzgeralds investigation into the leak of the

identity of Valerie Plame Wilson. Id. at 1. CREWs 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 CREWs

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 CREWs

request to OLC. See Bradbury Decl. Ex. D. On September 18, 2008, OLC responded to

CREWs request. Seeid. 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.



7/73

4

ARGUMENT

FOIAs 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



8/73

5

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 Dept 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 Govt v. Natl

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 Commn, 926 F.2d 1197, 1200 (D.C. Cir.

1991), and a presumption of expertise, Piper v. United States Dept 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.).



9/73

6

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 agencys 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 agencys decision to

investigate, rejecting the agencys rationale only if it is pretextual or wholly unbelievable. Id.

at 421.

Here, FBI agents generated the documents in the course of the Special Counsels

investigation into the disclosure of Valerie Plames 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



10/73

7

Natl Sec. Studies v. United States Dept 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 governments 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 wouldinterfere 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 Dept 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 Dept 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

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


11/73

8

orreasonably anticipated. Mapother v. Dept 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 Dept 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.; accordid. 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 Departments 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



12/73

9

(upholding DOJs assertion of Exemption 7(A) and finding that the governments judgment that

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

United States Dept of Justice, 51 F.3d 1158, 1165 (3d Cir. 1995) (upholding DOJs 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. Natl Labor Relations Bd., 964 F.2d 1205, 1208 (D.C.



13/73

10

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 Socy, 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.



14/73

11

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. Natl Labor Relations Bd. v. Sears,

Roebuck & Co., 421 U.S. 132, 150 (1975) (citation omitted). FOIAs 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. SeeAppleton 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,



15/73

12

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

[agencys] 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. Assn v. Consumer

Prod. Safety Commn, 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 Natl 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 Presidents January 2003 State

of the Union Address, possible responses to media inquiries about the accuracy of statement in

the Presidents 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



16/73

13

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 Presidents 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



17/73

14

between President and his advisors are at the very core of the presidential communications

privilege. E.g., Nixon v. Admr of Gen. Servs., 433 U.S. 425, 449 (1977); Assn 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 Dept 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 FOIAs 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. Dept of Health

& Human Servs., 690 F. 2d 252, 259 (D.C. Cir. 1982).



18/73

15

Exemption 6 requires an agency to balance the individuals right to privacy against the

publics interest in disclosure. See United States Dept 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 Dept of Defense v. FLRA, 510 U.S. 487, 495

(1994) (quoting United States Dept 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 FOIAs

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 agencys



19/73

16

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 Commn, 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 partys request for law

enforcement records or information about a private citizen can reasonably be expected to invade

that citizens privacy. Reporters Commitee, 489 U.S. at 780; see alsoPerrone 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. SeeBlanton 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); accordJones v. FBI, 41 F.3d

238, 246-47 (6th Cir. 1994) (holding that federal law enforcement officials have the right to be



20/73

17

protected against public disclosure of their participation in law enforcement investigations

(quotation omitted)); Lesar v. United States Dept 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. Dept 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



21/73

18

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 Orders 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 Agencys 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 agencys 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

Dept 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



22/73

19

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. SeeCIA 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



23/73

20

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 statutes 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.



24/73

21

CONCLUSION

For the reasons stated above, DOJs 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




25/73

EXHIBI 1 1

Case 1:08-cv-01468-EGS Document 8-2 Filed 10/10/2008 Pa


26/73

08/28/2on8 14:01 FAX 2025140487 OBA6/DOJ CRE~~ 008/011

PAGE 82126

CREW citizens for responsibilityand etMc~ in washingtonJuly 17, 2008

By Fax (202) 514-1009 and first.class mai!Carmen L, MellonChief of StaffOff!c~ of" ~r~forma~lon and rivacyD~partment of JustiwSuite 110501425 New York Avenue, N.W,Wa shington, D.~. :20530-0001

Re: Freedom of Information Act RequestDear Mz. Mellon:

Citizens for Ethics and Responsibility in Washington ("CP, EW) make~ this request forrecords, reg0.rdless of t briner, medium, or physieaJ cham~tsristi~s, and irteIudilag electronicrecords and information, pursuant to the Freedom of Inforrnation Ac t ("FO 1A~ 3, 5 U .S.C. 552,e__t s__(_~, an d U.3. Department oflustice ("DOJ") regulations, 28 C.F.K. Part 16.

P l e a s e s e a r c h f o r r e s p o r ~ i v e r ~ c o r d s r e g a r d l e s s o f f o r m a t , m e d i t m ~ , o r 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 pto~ide it with an index of those documents, as requirsd underv~_R osen.. 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 spseifloitypermit a reasoned judgm ent as to whether the m aterial is aetuallM ~,r~m pt tm d~ rY~_qu_n_~n~ Cht~h_ o_f S~cientol_oav v, Be!l, 603 F.2d 9 4 5 , 9 5 9 ( D , C . C i r . 1 9 7 9 ) . Moreover, theVau..V._~ .~ind~x m ust "describe each docum ent or portion ~hereof wiflflmld, and for eachwithholdiog it must discuss the eonsequene~ of supplying the sought-aRer information."

[ 4 0 0 ~ . y e S t r e e t , N . W . , , S u i te 4 5 0 , W a s h t n s t o n , O . C , 2 0 0 0 5 - [ 2 0 2 . 4 0 8 . 5 5 6 5 p h o n e [ 2 0 2 . 5 8 8 . 5 0 2 0 f a x [ w w w , e l t l z e a s r o r e t h l c s . o r g



27/73

08128/2008 14:01 FAX 2025140487 ODAB/DOJ97/17/208R ~.0:24 28258850 28

~ oo8tOllPAGE 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~ ofthe requested records are properly ~x ~m ptdisclosure, please disclose arty reasonably segregable, not~-axempt portions of the requestedrecords. ~ 5 U.S,C. 552(b); .S~hiller v. Natl r~.ho~ ~_e.latlon. ~ Bd., 969 F.2d 1205, 1209 (D,~.Cir. 1992). If i t is yottr position that a doeum erit ~ontain.s non-exempt segm ents and that those~on-exerapt segments are so di~ parsed throughout the doeuraenra a, to m ake

impossible, please state what portion of the document is non-exempt, and how the material isdispersed through the docu m ent. Mead Dat~ Centra! v_. U.8. De.pt 9f.the. Air porce~ 455 tr.2d242, 261 (D.C. Cir. t977). Claims ofnon-segregab|lity rrttt~t be made with th~ same d~tail asrequired for ~laims of exemptions in a ~ index, I a request is denied irt whole, please stateopeeifi~ally that it ia not ren~ orm ble to scgregdte pot-tions orthe 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~aza waiver ofe~ associated with processing this request for records. The subject of this requestconcerns the operations of the federal govemfa ent and the di.~e.logure~ will likely contribute to abett~r tmderstanding of reIevallt government procedures by CREW and the general public in asignificant way. Moreover, th~ ~qtte~t i~ primarily and fundamentally for non-commercialpttrpo~es, pursuant to 5 U .8.C, 552(a)(4)(A)(ili). S~ , e.g., MClellan Ee~ .logiagt v. Carluc_.e_i,835 F.2d 1282; 1285 (9~h Cir. 1987"). Specifically, th~ requested records are likely to oontribute tothe ptlblit~~ wad=~tv.ndizlg O 1" the role of the vice president in the diselosme of M s, Wilsonscovert identity, the information that formed part of the b~is far DO J~ decision not to pro~ecut~Mr. ~h~tx~y mad wh~thor the *tttorn6T general advocated r.hat the president ~t~rt exeGa~tiveprivileg~ in response to the c~ngre~si0na! subpoena ~or these docum ema to protect the vicepreMdent and prevent the public from learning the truth about lvlr, Claencys role ist ~o l~ak ofMs, Phtmea covert identity.

CR EW is a non-profit corporation, orgardzed und zr section 501 (e)(3) of the InternalRearenue.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 offiial~, CP,.EW is d~lieatexl toem powering cit izen, to hav~ an influential voice in govam rneat 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 gmazred through this request is not in C1LEWsfinmaoiM interest, CP,.EW will aualyze the information responsive to thi~ request and intends toshare its analysis with the public, ~ither through memoranda, report~, or press releases. CREWht~ an eslablish~l record of eart~tag olaf theme types ofa~tivit i~n, a~ e~d~n ced tlarough it~wsbsite, ~.~itiz~n~omthies.or~ Curr, rttly, ths CREW w~bsite contains lix~ks to thousands ofpa~es ofdoeum enm acquired fi-om m ultiple FOIA,J~tt0:l/citize~fo~tlai_es,or~c_ti.vitie~/foia.php.. Visitors to CR.13W s website ~anpolmse the FOIArequest letters, the responses from government agerteies, and a growing number of documentsr, nponditlg to FOIA requests, CRE W a virtual reading room provide~ around-the-clock ac~os to

2



28/73

08/29/2008 140! FAX 2025140487010/011

PA6E e4t26

~yon~ interested in |cueing about the goverrauont aotlvi~~ that w~ ~e focusFO IA requests. The C~W w ebsite also lgoludgs doe~en~ m inting to C~W ~s FO IAlitigation, [ut~ma[ Revenue Sg~i~ ~mplalnts, ~ederal ~leetion Co~i~sion ~ompl~nt~ ~drequesm for ~ves~gafion, ~ch ~ the on~ C~ W ~eutly made of A~om ey Generfl MichaelM~ m ey relating to the activities of lobb~ S~ phen Pa~e, ~ho is ~l~ed ~ haveco~ibutio~ to th~ Bush Iib~ In #xch~ge for s~c~ng me=tings wi~ top ~in~s~tono~oials. ~ edition, C~W ~11 d issemina~ ~y d oc~on~ s i t acquits from i~request ~public ~ough ~.ovem~0n~o~s.or~, m ~temefive website C~W fo~d~, that incl~estho~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~O n

" Pursuant to 5 U.8,C. S52(a)(6)(l~)(~ m~ d 28 C,F,R. 16.5(d)(iv), CKEW reque~ m atDO~ 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~. Acopy of C~Ws ~qu~t is e~elosed.

CRE W also requ ests that DOJ expedite its request pursuant to 2g C.F.R . 16.5(d)(ii), Asexplainea above~ CREW is engaged, primarily in the dissemination ofhfonnation that it gathersfrom a varisty of sources, including th~ FO IA, and seeks the inform ation requited in this FO IAreqtm~t for the etqn~ss purlm~t~ of disseminating it to the public. ~rt addition to the itttaractivewnhsit~ that CRE W fovn ded, ~.gov~nm entd_o.cs.orm that eorttain~ the documents CREW hasacquired through thz FOIA, CREW ~ w~bsite ~unudaz ~xu merous ~xam pl~s of itsi n c lu d i n g r e p o r t s ~ t h a s p u b l ls h e d b a s e d o n i n fo r m a t io n i t r ~ e i v e ~ t h r o u g l i th e F O L k . F o rexample, CREWs report, geegrd I~haos~,TheD~_ lorable f{tat9 of El..vet_to_ _ n ic K.e.vordthe~Feder~l_ G _ovemm ~, was based in stgnlfi~attt part on do0um ents it requested under the FO IAfrom a v ariety of agencies, htcludingDO J., There is a partloular urgency tn inform ing the publie about ~h role Vice PresidentCtt~rtey played in the leak of Ms. Wilzons e, overt CIA identity ~ well as the bases for thederision not to prose, cute the vice president, despite Special Courtsel Patrick Fitzgeralds~t~l~ tu~at at thn trtaI ell Lewis Libby that "LtJhere is a c loud over what the V ice Ptesidertt didthat wcc k... Ttmt cloud rem ains," Further generating puhli~ eo~c, em are the reeelxt actions ofAttorney Ovneral Michael Mukasey, iaxoludirag his request oIth~ White House that it assertexecutive prlvileg~ over the documents CREW i~ requesting here ~d the subsequent assertion ofexecutive privilege. Atlorney G~norai Muka.qoy~ aotlon~ rinse it set,otis question o f w h e t h e r h ei s s u b v r , tC i a g a l e g i ti m a t e c o n g r e s s i o n a l in q u i r y t o c o v e r u p t h e t r u t h a n d p r o . ~ e t th e v i c epresident. Disclosure of the documents CR~W is requesting wtll go a long w~y towardanswering those q uestions.



29/73

0B/29/2008 14"02 FAX 2025140467~77tYI2BB8 10~24 2025BB5~

~ 011/011PAGE 85/26

Pur.~uant t o 28 (2.F.R . 16,5(~[)(3), I hereby certify that th~ bnsis for CPEW s request tbrexpedition, as outlined above, is true and eorrex:t to the best of my knowledge and bel~eIf you hav ~ a ny .qu estions 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) 408.556 5. Al~ o, iCP,.EWs request for a f~ waiver is not grmate4 in full, plebe eo~ttaet our office immediatelyupon m akitig such a determination. Please send.th~ requested doeum er~t9 to Anne W ei,~m ann,Citiz~nz tbr R esponsibility ~ d E thles ir~ W a.shir~gton, 1400 Eye S treet, N.W., Suite 450,W ash|ngtoa, D.C, 20005.

En~losttre

4



30/73





)Plaintiff )

) No. 1:08-cv-01468 (EGS)


)


)

Defendant. )

____________________________________ )

DEFENDANT'S STATEMENT OF MATERIAL FACTS NOT IN DISPUTE

Pursuant to this Courts 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

FOIA request to the DOJ for documents relating to

any interviews outside the presence of the grand jury

of Vice President Richard B. Cheney that are part of

Special Counsel Patrick Fitzgeralds 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

Letter from Anne Weismann to

Carmen Mallon (attached as

Exhibit 1).



31/73

- 2 -

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

collected the responsive documents.

Bradbury Decl. 3.

3. By letter dated September 18, 2008, OLC responded

to plaintiffs 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

Bradbury Decl. Ex. E.



32/73

- 3 -

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

an investigation related to the enforcement of federal

laws. Namely, FBI agents generated the documents

in the course of the Special Counsels investigation

into the disclosure of Valerie Plames status as an

employee of the Central Intelligence Agency.

Bradbury Decl. 13.

5. The Attorney General has determined that releasing

the documents would threaten the integrity and

effectiveness of future law enforcement

investigations by the Department of Justice.

Bradbury Decl. Ex. B, at 4.

6. The Attorney General has determined that 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

Bradbury Decl. 9.



33/73

- 4 -

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

Departments 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

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

Bradbury Decl., 13.



34/73

- 5 -

concern, among other things, the preparation of the

Presidents January 2003 State of the Union Address,

possible responses to media inquiries about the

accuracy of statement in the Presidents 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

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

Bradbury Decl. 14.



35/73

- 6 -

President, and other senior White House officials

could impair effective Executive Branch

decisionmaking.

9. The documents include information [that] was

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).

Bradbury Decl. 15.



36/73

- 7 -

10. [A] number of paragraphs in the FBI interview

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.

Bradbury Decl. 16.



37/73

- 8 -


GREGORY G. KATSAS


JEFFREY A. TAYLOR


JOHN TYLER





Civil Division, Federal Programs Branch20 Massachusetts Ave., NW,


Tel: (202) 514-5751

Fax: (202) 616-8202




38/73



39/73



40/73



41/73



42/73



43/73



44/73



45/73



46/73

Case 1:08-cv-01468-EGS Document 8-5 Filed 10/10/2008 Pag


47/73



48/73



49/73



50/73



51/73



52/73



53/73



54/73



55/73



56/73



57/73



58/73

Case 1:08-cv-01468-EGS Document 8-5 Filed 10/10/2008 Page


59/73



60/73



61/73



62/73



63/73



64/73



65/73



66/73



67/73



68/73



69/73



70/73



71/73



72/73



73/73


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

Documents

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