Judicial Watch, Inc. v. Department of Justice

Notice: This opinion is subject to formal revision before publication in the

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before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 22, 2004 Decided May 7, 2004

No. 03-5093

JUDICIAL WATCH, INC.,

APPELLANT

v.

DEPARTMENT OF JUSTICE,

APPELLEE

Consolidated with

No. 03-5094

Appeals from the United States District Court

for the District of Columbia

(No. 01cv00639)

(No. 01cv00720)

Paul J. Orfanedes argued the cause and filed the briefs for

appellant.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Michael E. Tankersley was on the brief for amicus curiae

George Lardner in support of appellant.

Mark B. Stern, Attorney, U.S. Department of Justice,

argued the cause for appellee. With him on the brief were

Peter D. Keisler, Assistant Attorney General, Roscoe C. How-

ard, Jr., U.S. Attorney, Gregory G. Katsas, Deputy Assistant

Attorney General, and Michael S. Raab, Attorney.

Before: HENDERSON, RANDOLPH and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Dissenting opinion filed by Circuit Judge RANDOLPH.

ROGERS, Circuit Judge: In In re Sealed Case, 121 F.3d 729

(D.C. Cir. 1997), the court, in considering a grand jury

subpoena for White House documents relating to an investi-

gation of the former Secretary of Agriculture, reviewed the

history of the executive privilege doctrine, and the nature and

principles underlying two privileges falling within that doc-

trine. We apply that analysis in deciding whether, under

Exemption 5 of the Freedom of Information Act (‘‘FOIA’’), 5

U.S.C. § 552(b)(5), the presidential communications privilege

extends into the Justice Department to internal pardon docu-

ments in the Office of the Pardon Attorney and the Office of

the Deputy Attorney General that were not ‘‘solicited and

received,’’ id. at 752, by the President or the Office of the

President.1 In refusing to release certain documents in re-

1 The Office of the President, as relevant to the issues in this

appeal, is distinct from the Executive Office of the President and is

a smaller unit comprised of such immediate advisers as the Chief of

Staff and the White House Counsel. See CONGRESSIONAL QUARTER-

LY, FEDERAL STAFF DIRECTORY vii (44th ed. 2004); NAT’L ARCHIVES &

RECORDS ADMIN., OFFICE OF THE FED. REGISTER, THE UNITED STATES

GOV’T MANUAL 88–89 (2003). Although the Executive Office of the

President is an agency subject to the FOIA, see 5 U.S.C.

§ 552(f)(1), the Office of the President is not. See Kissinger v.

Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980)

(quoting H.R. Conf. Rep. No. 93–1380, p. 15 (1974)). In referring to

the President’s immediate or key advisers in the Office of the

3

sponse to Judicial Watch’s FOIA requests, the Deputy Attor-

ney General, to whom the Attorney General has delegated his

pardon duties, invoked the deliberative process privilege.

However, in moving for summary judgment, the Department

also relied on the presidential communications privilege. On

appeal, Judicial Watch contends that the district court erred

in extending the presidential communications privilege to

these internal Department documents. We agree, and ac-

cordingly we reverse, in part, the grant of summary judgment

to the Department and remand the case for the district court

to determine whether the Department’s internal documents

not ‘‘solicited and received’’ by the President or the Office of

the President are protected from disclosure under the deli-

berative process privilege. We affirm the grant of summary

judgment to the Department on the documents withheld

under FOIA Exemption 6, and on Judicial Watch’s request

for a blanket waiver of FOIA processing fees.

I.

In January and February 2001, Judicial Watch filed two

FOIA requests for documents from the Justice Department.

One request was to the Office of the Pardon Attorney, and

the other was to the Office of the Deputy Attorney General.

In each FOIA request, Judicial Watch sought release of

‘‘[a]ny and/or all [p]ardon [g]rants’’ by former President

Clinton in January 2001, and ‘‘[a]ny and/or all pardon applica-

tions considered’’ by former President Clinton.2 Judicial

President, we embrace the definitional analysis set forth in In re

Sealed Case, 121 F.3d at 749–50, 752.

2 Specifically, Judicial Watch requested, ‘‘all correspondence,

memoranda, documents, reports, records, statements, audits, lists of

names, applications, diskettes, letters, expense logs and receipts,

calendar or diary logs, facsimile logs, telephone records, call sheets,

tape recordings, video recordings, notes, examinations, opinions,

folders, files, books, manuals, pamphlets, forms, drawings, charts,

photographs, electronic mail, and other documents and things, that

refer or relate to the following in any way’’ to pardon grants and

applications considered by former President Clinton.

4

Watch’s request for expedited processing under 28 C.F.R.

§ 16.5(d)(1)(iv), was denied, and the Department began re-

leasing documents in February 2001, including some without

prepayment of the FOIA processing fee. See 28 C.F.R.

§ 16.11(i)(2). Although it released thousands of pages of

documents, the Department withheld 4,341 pages pursuant to

FOIA Exemption 5, see 5 U.S.C. § 552(b)(5), and, to the

extent these pages contained personal information about liv-

ing individuals, pursuant to FOIA Exemption 6. Id.

§ 552(b)(6). The Department separately withheld another

524 pages under Exemption 6.

The withheld documents are described by the Department

in a Vaughn Index3, which organizes the records into 34

categories and specifies the particular privileges invoked for

each document, with the presidential communications privi-

lege and deliberative process privileges invoked either in full

or in part. The 4,341 documents withheld under both the

presidential communications and deliberative process privi-

leges, either in full or in part, can be grouped into several

broad categories. For instance, a number of withheld docu-

ments consist of letters and reports from the Deputy Attor-

ney General to the President, advising the President on

individual pardon petitions. See Vaughn Index 5, 19, 32. A

second group of withheld documents consist of communica-

tions between the Department and the White House Coun-

sel’s Office concerning pending pardon applications, and

communications between the White House Counsel and the

President discussing the Department’s recommendations.

See id. 3, 16, 18, 26. A third broad category of documents

are proposed recommendations for the Deputy Attorney

General’s consideration, which were authored by the Deputy

Attorney General’s staff or the Pardon Attorney. See id. 1,

10, 11, 13, 14, 27, 28. A fourth category consists of internal

communications and working documents among and between

the Deputy’s Office and the Pardon Attorney, such as memo-

randa from the Deputy’s staff to the Pardon Attorney in-

3 See Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. Cir. 1973).

The Vaughn index is appended to this opinion.

5

quiring about specific pardon applications and requesting

that certain pardon recommendations be modified or resub-

mitted to the Deputy. See id. 2, 4, 7, 20, 21, 22, 25, 29, 30.

A fifth category consists of communications with and docu-

ments received from other agencies and departments in the

course of preparing the Deputy’s pardon recommendations

for the President, such as FBI memoranda on background

investigations. See id. 17, 23, 33. Other documents are

either miscellaneous lists or drafts or are difficult to categor-

ize because they appear to be internal departmental memo-

randa but actually incorporate specific recommendations the

Deputy had submitted for the President. See id. 6, 8, 9, 12,

15, 19, 24, 31. With the exception of category 34 — involv-

ing 524 documents, which the Department withheld under

Exemption 6, consisting of pardon petitions and letters to or

from pardon applicants and their counsel and supporters —

the Department posits that all of these documents fall under

the purview of the presidential communications privilege.

In March and April 2001, Judicial Watch sued the Depart-

ment to enforce the FOIA requests and to challenge the

denial of a blanket waiver of FOIA processing fees. The

district court consolidated the cases, and the Department

moved for summary judgment. The district court agreed

with the Department that all 4,341 pages were properly

withheld under the presidential communications privilege pur-

suant to Exemption 5. Rejecting Judicial Watch’s position

that the privilege does not apply to documents not involving

White House staff, the district court concluded that because

the materials had been produced for the ‘‘sole’’ function of

advising the President on a ‘‘quintessential and nondelegable

Presidential power,’’ the extension of the presidential commu-

nications privilege to internal Justice Department documents

was justified. The district court also agreed that the Depart-

ment had properly withheld 524 pages of documents, consist-

ing primarily of individual petitions for pardons, under Ex-

emption 6. Upon reconsideration, the court also granted the

Department’s motion for summary judgment on the fee waiv-

er request, finding that Judicial Watch had failed to show that

6

the FOIA requests were likely to contribute significantly to

the public interest.

On appeal, Judicial Watch challenges the district court’s

rulings under Exemptions 5 and 6 and the denial of the

blanket waiver of FOIA fees. Our review of the grant of

summary judgment is de novo. See Assassination Archives

& Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57

(D.C. Cir. 2003); Johnson v. Executive Office for U.S. Attor-

neys, 310 F.3d 771, 774 (D.C. Cir. 2002); Nation Magazine v.

United States Customs Serv., 71 F.3d 885, 889 (D.C. Cir.

1995). We address Exemption 5 in Part II, Exemption 6 in

Part III, and the fee waiver in Part IV.

II.

This FOIA case calls upon the court to strike a balance

between the twin values of transparency and accountability of

the executive branch on the one hand, and on the other hand,

protection of the confidentiality of Presidential decision-

making and the President’s ability to obtain candid, informed

advice. In striking this balance, the court must determine

the contours of the presidential communications privilege with

respect to the President’s pardon power under Article II,

Section 2, of the Constitution in light of the organization of

the executive branch with regard to pardon applications,

investigations, and recommendations. One view, advocated

by the Department, is that protection of the institution of the

Presidency requires that the presidential communications

privilege apply to all documents authored by any executive

branch agency employee that are generated in the course of

preparing pardon recommendations for the President. The

district court adopted this functional approach, finding that

the presidential communications privilege applied to the re-

quested documents because the Pardon Attorney’s ‘‘sole’’

responsibility was to advise the President on pardon applica-

tions. Under this approach, the Pardon Attorney is, in effect,

a White House adviser, rendering the presidential communi-

cations privilege applicable to all pardon-related documents

7

notwithstanding the location and staff function of the Pardon

Attorney in the Justice Department.

Another view, espoused by Judicial Watch, is that, in

harmony with the FOIA’s purpose, the principles underlying

the presidential communications privilege limit its reach to

documents and other communications ‘‘solicited and received’’

by the Office of the President, and thus do not extend to

agency documents that are not submitted for Presidential

consideration. Under this view, which we endorse, internal

agency documents that are not ‘‘solicited and received’’ by the

President or his Office are instead protected against disclo-

sure, if at all, by the deliberative process privilege. We begin

our analysis with the FOIA statute and then turn to the

presidential communications privilege and the organization of

the pardon process in the executive branch.

The FOIA directs that ‘‘each agency, upon any request for

records TTT, shall make the records promptly available to any

person’’ for ‘‘public inspection and copying,’’ unless the rec-

ords fall within one of the exclusive statutory exemptions.

See 5 U.S.C. §§ 552(a)(2) & (a)(3)(A). There is, however, a

built-in presidential communications privilege for records in

the possession of, or created by, immediate White House

advisers, who are not considered an agency for the purposes

of FOIA. See supra note 1. The FOIA amended the public

disclosure section of the Administrative Procedure Act, 5

U.S.C. § 1002, which had been viewed, for a variety of

reasons, as ‘‘falling short’’ of the disclosure goals of the

statute. EPA v. Mink, 410 U.S. 73, 79 (1973). The Supreme

Court has long recognized that Congress’ intent in enacting

FOIA was to implement ‘‘a general philosophy of full agency

disclosure.’’ United States Dep’t of Justice v. Reporters

Comm. for Freedom of the Press, 489 U.S. 749, 754

(1989)(quoting Dep’t of the Air Force v. Rose, 425 U.S. 352,

360–61 (1976)). The Supreme Court has explained that,

Without question, the Act is broadly conceived. It seeks

to permit access to official information long shielded

unnecessarily from public view and attempts to create a

8

judicially enforceable public right to secure such informa-

tion from possibly unwilling official hands.

Mink, 410 U.S. at 80. In weighing opposing interests, Con-

gress has instructed that ‘‘[s]uccess lies in providing a worka-

ble formula that encompasses, balances, and protects all

interests, yet places emphasis on the fullest responsible dis-

closure.’’ S. Rep. No. 813, p. 3, quoted in Mink, 410 U.S. at

80. Accordingly, FOIA’s exemptions are to be narrowly

construed. See United States Dep’t of Justice v. Tax Ana-

lysts, 492 U.S. 136, 151 (1989); Rose, 425 U.S. at 361. See

also 5 U.S.C. § 552(d); Bristol-Myers Co. v. FTC, 424 F.2d

935, 938 (D.C. Cir. 1970), cert. denied, 400 U.S. 824 (1970).

FOIA Exemption 5 allows the government to withhold

‘‘inter-agency or intra-agency memorandums or letters which

would not be available by law to a party TTT in litigation with

the agency.’’ 5 U.S.C. § 552(b)(5). This language has been

interpreted as protecting against disclosure those documents

normally privileged in the civil discovery context. See Mink,

410 U.S. at 91. This includes documents protected under the

executive privilege doctrine. See NLRB v. Sears, Roebuck &

Co., 421 U.S. 132, 149 n.16 & 150 (1975). As described in In

re Sealed Case, 121 F.3d at 737, the deliberative process

privilege under Exemption 5 protects ‘‘confidential intra-

agency advisory opinions’’ and ‘‘materials reflecting delibera-

tive or policy-making processes.’’ Mink, 410 U.S. at 86, 89

(citations omitted). It rests on the policy of protecting the

‘‘decision making processes of government agencies,’’ Sears

Roebuck, 421 U.S. at 150 (citations omitted), with the ‘‘ulti-

mate purpose [being] to prevent injury to the quality of

agency decisions.’’ Id. at 151. Materials that are ‘‘predeci-

sional’’ and ‘‘deliberative’’ are protected, while those that

‘‘simply state or explain a decision the government has al-

ready made or protect material that is purely factual’’ are not.

In re Sealed Case, 121 F.3d at 737. The deliberative process

privilege, however, is qualified and can be overcome by a

sufficient showing of need. See id.

Exemption 5 also has been construed to incorporate the

presidential communications privilege. See Sears Roebuck,

9

421 U.S. at 149 n.16 & 150. In United States v. Nixon, 418

U.S. 683, 708 (1974) (‘‘Nixon I’’), which involved a grand jury

subpoena for tape recordings of President Nixon’s conversa-

tions in the Oval Office, the Supreme Court instructed that

there is ‘‘a presumptive privilege for Presidential communica-

tions,’’ which is ‘‘fundamental to the operation of Government

and inextricably rooted in the separation of powers under the

Constitution.’’ Later, in Nixon v. Adm’r of Gen. Servs., 433

U.S. 425, 449 (1977) (‘‘Nixon II’’), in addressing the Presi-

dent’s challenge to a statute providing for screening by

government archivists of his papers and recorded conversa-

tions, the Supreme Court emphasized Nixon I’s holding that

‘‘the privilege is limited to communications ‘in performance of

(a President’s) responsibilities,’ ‘of his office,’ and made ‘in the

process of shaping policies and making decisions.’ ’’ (citations

omitted). As analyzed by this court in In re Sealed Case, 121

F.3d at 744, ‘‘[t]he President can invoke the privilege when

asked to produce documents or other materials that reflect

presidential decisionmaking and deliberations and that the

President believes should remain confidential.’’ Unlike the

deliberative process privilege, which is a general privilege

that applies to all executive branch officials, the presidential

communications privilege is specific to the President and

‘‘applies to documents in their entirety, and covers final and

post-decisional materials as well as pre-deliberative ones.’’

Id. at 745. The presidential communications privilege thus is

a broader privilege that provides greater protection against

disclosure, although it too can be overcome by a sufficient

showing of need. See id. at 746.

Although Judicial Watch contends that the presidential

communications privilege was not properly invoked, see In re

Sealed Case, 121 F.3d at 744–45 n.16; Center on Corp.

Responsibility, Inc. v. Shultz, 368 F. Supp. 863, 872–73

(D.D.C. 1973); United States v. Burr, 25 F. Cas. 187, 192

(C.C.Va. 1807)(No. 14,694), the court need not address the

issue because Judicial Watch has waived this challenge by

failing to raise it in the district court. See Singleton v. Wulff,

428 U.S. 106, 120 (1976); Amax Land Co. v. Quarterman, 181

F.3d 1356, 1369 (D.C. Cir. 1999). See also Soucie v. David,

10

448 F.2d 1067, 1071 (D.C. Cir. 1971). Unlike in In re Sealed

Case, 121 F.3d at 744–45 n.16, where the affidavit of the

White House Counsel stated that he was specifically author-

ized by the President to invoke the presidential communica-

tions privilege, the White House Counsel’s declaration here

includes no such statement and there is no other indication

that the President has invoked the privilege. However, the

issue of whether a President must personally invoke the

privilege remains an open question, see In re Sealed Case, 121

F.3d at 744–45 n.16, and the court need not decide it now. Cf.

United States v. Reynolds, 345 U.S. 1, 7–8 (1953).

When the Supreme Court first acknowledged a separate

privilege for presidential communications in Nixon I, 418 U.S.

at 705, it was in the context of President Nixon’s invocation of

the privilege to protect his personal conversations with his

chief White House advisers in the Oval Office. Although the

Court in Nixon I and II outlined the nature of the privilege in

terms of its ‘‘constitutional underpinnings,’’ see Nixon I, 418

U.S. at 705–06, twenty years passed before, in In re Sealed

Case, a court attempted to define the scope of the privilege

more precisely. In In re Sealed Case, 121 F.3d at 746–47, the

court was called upon to extend the privilege beyond commu-

nications directly involving and documents actually viewed by

the President, to the communications and documents of the

President’s immediate White House advisers and their staffs.

In the instant case, the Department seeks a further extension

of the presidential communications privilege to officials within

the Justice Department whose sole function, according to the

Department, is to advise and assist the President in the

performance of his non-delegable pardoning duty. We de-

cline to sanction such an extension of the presidential commu-

nications privilege to all agency documents prepared in the

course of developing the Deputy Attorney General’s pardon

recommendations for the President. Instead, consistent with

the teachings of Nixon I and II and In re Sealed Case, we

hold that the presidential communications privilege applies

only to those pardon documents ‘‘solicited and received’’ by

the President or his immediate White House advisers who

have ‘‘broad and significant responsibility for investigating

11

and formulating the advice to be given the President.’’ Id. at

752.

This limitation, conveniently summarized by In re Sealed

Case’s phrase ‘‘solicited and received,’’ is necessitated by the

principles underlying the presidential communications privi-

lege, and a recognition of the dangers of expanding it too far.

At core, the presidential communications privilege is rooted in

the President’s ‘‘need for confidentiality in the communica-

tions of his office,’’ Nixon I, 418 U.S. at 712–13, in order to

effectively and faithfully carry out his Article II duties and

‘‘to protect ‘the effectiveness of the executive decision-making

process.’ ’’ In re Sealed Case, 121 F.3d at 742 (quoting Nixon

v. Sirica, 487 F.2d 700, 717 (D.C. Cir. 1973)). The privilege

extends to the President’s immediate advisers because of the

need to protect ‘‘candid, objective, and even blunt or harsh

opinions,’’ for, as the Supreme Court has recognized, ‘‘[a]

President and those who assist him must be free 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.’’ Nixon I, 418 U.S. at 708. Howev-

er, in In re Sealed Case, the court recognized that, in

determining whether ‘‘restricting the presidential communica-

tions privilege to communications that directly involve the

President will ‘impede the President’s ability to perform his

constitutional duty,’ ’’ 121 F.3d at 751 (quoting Morrison v.

Olson, 487 U.S. 654, 691 (1988)), there is, in effect, a hierar-

chy of presidential advisers such that the demands of the

privilege become more attenuated the further away the advis-

ers are from the President operationally. See id. at 752.

Thus, as we demonstrate below, because pardon documents

obtained from other agencies by Justice Department staff

undergo various stages of intermediate review before pardon

recommendations are submitted for consideration by the

President and his immediate White House advisers, with

some documents never making their way to the Office of the

President, the same confidentiality and candor concerns call-

ing for application of the presidential communications privi-

lege in Nixon I and II and In re Sealed Case do not apply as

forcefully here.

12

Although In re Sealed Case was not a FOIA case, it too

involved a non-delegable duty of the President under Article

II, Section 2 of the Constitution: the appointment and remov-

al power for heads of Executive Departments and members

of his Cabinet. The White House Counsel had conducted an

investigation of alleged conflicts of interest of the Secretary

of Agriculture and, on the basis of that investigation, had

released a report to the public. A grand jury issued a

subpoena duces tecum seeking all documents on the former

Secretary possessed by the White House and any other

documents ‘‘relating in any way to’’ the White House Coun-

sel’s report. Id. at 734–35. When the White House withheld

many of the documents under the deliberative process and

presidential communications privileges, the Office of Indepen-

dent Counsel moved to compel production. The district

court, upon conducting in camera review of the documents,

ruled that the White House had properly invoked the presi-

dential communications and deliberative process privileges.

Id. at 735–36. On appeal, this court held that although all the

documents sought were protected by the presidential commu-

nications privilege, the Independent Counsel had demonstrat-

ed a sufficient showing of need to obtain some of the informa-

tion in the documents, and remanded the case to the district

court to determine what information should be released. Id.

at 757.

Consistent with the principles underlying the presidential

communications privilege, the court in In re Sealed Case

espoused a ‘‘limited extension’’ of the privilege ‘‘down the

chain of command’’ beyond the President to his immediate

White House advisers only, holding that ‘‘communications

made by [such] presidential advisers in the course of prepar-

ing advice for the President come under the presidential

communications privilege, even when these communications

are not made directly to the President.’’ Id. at 749–50, 752.

Emphasizing ‘‘the need for confidentiality to ensure that

presidential decisionmaking is of the highest caliber, informed

by honest advice and full knowledge,’’ id. at 750, the court

also held that ‘‘the privilege must apply both to communica-

tions which these advisers solicited and received from others

13

as well as those they authored themselves.’’ Id. at 752

(emphasis added). However, the court emphasized the limit-

ed nature of its holding, cautioning against the dangers of

‘‘expanding to a large swath of the executive branch a privi-

lege that is bottomed on a recognition of the unique role of

the President.’’ Id. The court instructed that ‘‘[n]ot every

person who plays a role in the development of presidential

advice, no matter how remote and removed from the Presi-

dent, can qualify for the privilege. In particular, the privilege

should not extend to staff outside the White House in execu-

tive branch agencies.’’ Id.

While the Department attempts to discount the court’s

instruction as mere dictum, it is unavoidably relevant for the

purposes of defining the contours of the presidential commu-

nications privilege. In undertaking the task of conducting a

more comprehensive analysis of the presidential communica-

tions privilege than had been done by the Supreme Court in

Nixon I and II or any other court since then, the In re Sealed

Case court’s statement limiting the scope of the privilege to

key White House advisers in the Office of the President and

their staff cannot easily be divorced from the issues and

concerns underlying its holding. Those issues and concerns

are equally applicable here. The court in In re Sealed Case

recognized the need to ensure that the President would

receive full and frank advice with regard to his non-delegable

appointment and removal power, but was also wary of under-

mining countervailing considerations such as openness in

government. See id. at 749. Hence, the court determined

that while ‘‘communications authored or solicited and re-

ceived’’ by immediate White House advisers in the Office of

the President and their staff could qualify under the privilege,

communications of staff outside the White House in executive

branch agencies that were not solicited and received by such

White House advisers could not. See id. at 752. The court

explained that only communications at the level of the imme-

diate White House adviser’s staff ‘‘are close enough to the

President to be revelatory of his deliberations or to pose a

risk to the candor of his advisers.’’ Id. There is no indica-

tion in Nixon I or II or other Supreme Court jurisprudence

14

that the boundaries set by In re Sealed Case were inappropri-

ate. Rather, until In re Sealed Case, the privilege had been

tied specifically to direct communications of the President

with his immediate White House advisers. See Nixon I, 418

U.S. at 708; Nixon II, 433 U.S. at 448–49. The reluctance of

the In re Sealed Case court to extend the presidential com-

munications privilege beyond the limits of its requirements

applies no less here.

Consequently, we proceed on the basis that ‘‘the presiden-

tial communications privilege should be construed as narrowly

as is consistent with ensuring that the confidentiality of the

President’s decisionmaking process is adequately protected.’’

In re Sealed Case, 121 F.3d at 752. Further extension of the

privilege to internal Justice Department documents that nev-

er make their way to the Office of the President on the basis

that the documents were created for the sole purpose of

advising the President on a non-delegable duty is unprece-

dented and unwarranted. The only documents at issue in In

re Sealed Case were documents created within the White

House or received by key White House advisers or their staff.

The majority of the withheld documents were authored by

two associate White House Counsel, the White House Coun-

sel and Deputy Counsel, and the President’s Chief of Staff or

Press Secretary. See id. at 757. Because these advisers

were immediate White House staff in the Office of the

President with significant responsibility for advising the Pres-

ident, the court held that these documents were protected by

the privilege. See id. at 758. The few documents authored

by a legal extern in the White House Counsel’s Office and the

few that had no author were also held by the court to be

protected by the privilege because they ‘‘were clearly created

at the request of the two associate White House Counsel with

broad and significant responsibility’’ for the White House

Counsel’s investigation of the Secretary of Agriculture, and

because the documents were received by these advisers. Id.

The Department now would have the court extend the

presidential communications privilege to communications of

persons in the Justice Department who are at least twice

removed from the President, among and between the Offices

15

of the Pardon Attorney and the Deputy Attorney General, as

well as other agencies, that were never received by immediate

White House advisers in the Office of the President. Un-

doubtedly a bright-line rule mandating application of the

privilege to all departmental or agency communications relat-

ed to the preparation of the Deputy Attorney General’s

pardon recommendations for the President would be easier to

apply than a rule under which pardon communications not

‘‘solicited and received’’ by the Office of the President must

be individually examined under the deliberative process privi-

lege. But such a bright-line rule is inconsistent with the

nature and principles of the presidential communications priv-

ilege, as well as the goal of best serving the public interest.

See In re Sealed Case, 121 F.3d at 751–52. Communications

never received by the President or his Office are unlikely to

‘‘be revelatory of his deliberations.’’ Id. at 752. Nor is there

reason to fear that the Deputy Attorney General’s candor or

the quality of the Deputy’s pardon recommendations would be

sacrificed if the presidential communications privilege did not

apply to internal agency documents. See id. Any pardon

documents, reports, or recommendations that the Deputy

Attorney General submits to the Office of the President, and

any direct communications the Deputy or the Pardon Attor-

ney may have with the White House Counsel or other imme-

diate presidential advisers will remain protected. The In re

Sealed Case court’s concern for providing ‘‘sufficient elbow

room for [presidential] advisers to obtain information from all

knowledgeable sources,’’ id., will also not be undermined. It

is only those documents and recommendations of Department

staff that are not submitted by the Deputy Attorney General

for the President and are not otherwise received by the Office

of the President, that do not fall under the presidential

communications privilege. Although the potential for chilling

the candor of the staffs of the Pardon Attorney or the Deputy

Attorney General is greater than if everything produced in

relation to pardon recommendations were covered under the

privilege, because the deliberations of these staff are not close

enough to the President to be revelatory of his deliberations

and will in any event remain protected pursuant to the

16

deliberative process privilege, the justification for expanding

the presidential privilege that far disappears. See id.

Moreover, the President’s discretion and autonomy in

granting pardons, see United States v. Klein, 80 U.S. (13

Wall.) 128, 147 (1871), which may be based on the Deputy

Attorney General’s recommendations, the advice of his key

White House advisers, or such other sources as he may seek

out, counsel against further expansion of the privilege. It

would be implausible, however, to conclude that documents

that neither the President nor his key advisers receive from

the Deputy Attorney General are part of the President’s

personal decision-making process such that their exclusion

from the scope of the privilege would impair the quality of his

deliberations. For instance, the court can hardly conclude

that examining documents such as an ‘‘[e]-mail within the

Department of Justice, among officials in [the Office of the

Deputy Attorney General] and [the Office of the Pardon

Attorney] transmitting information on particular pardons, and

requesting information, such as warrants and background

investigations,’’ see Vaughn Index category No. 7, under the

deliberative process privilege rather than the presidential

communications privilege, would jeopardize the President’s

confidentiality and decision-making process. Extending the

presidential communications privilege to cover such internal

Department documents would be both contrary to executive

privilege precedent and considerably undermine the purposes

of FOIA to foster openness and accountability in government.

Indeed, a bright-line rule expanding the privilege could have

the effect of inviting use of the presidential privilege to shield

communications on which the President has no intention of

relying in exercising his pardon duties, for the sole purpose of

raising the burden for those who seek their disclosure. Such

an approach would distort the rationale adopted by the

Supreme Court in Nixon I and II and the principled analysis

of this court in In re Sealed Case.

However, the Department contends that the Pardon Attor-

ney is, in effect, a ‘‘member[ ] of an immediate White House

adviser’s staff who ha[s] broad and significant responsibility

for investigating and formulating the advice to be given the

17

President.’’ In re Sealed Case, 121 F.3d at 752. Under this

view, because the Pardon Attorney’s sole purpose is to advise

the Deputy Attorney General, and ultimately, the President

on pardon applications, and the Pardon Attorney either au-

thored or compiled the documents sought, the documents are

protected by the presidential communications privilege. But

the Department’s view ignores the separate responsibilities of

the Deputy Attorney General and the Pardon Attorney as

well as the Pardon Attorney’s history of invoking the deliber-

ative process privilege to protect the confidentiality of the

Department’s internal pardon process.

The court has long recognized that the organization of

governmental functions is of significance for the purposes of

FOIA. In Ryan v. Dep’t of Justice, 617 F.2d 781, 789 (D.C.

Cir. 1980), the court observed that,

In many different areas the President has a choice

between using his staff to perform a function and using

an agency to perform it. While not always substantively

significant, these choices are often unavoidably signifi-

cant for FOIA purposes, because the Act defines agen-

cies as subject to disclosure and presidential staff as

exempt.

The court considered the President’s decisions about the

location of advisers as reflective of his understanding of the

access that the public could potentially have to government

documents under FOIA. See id. at 789. Although the issue

in Ryan involved the meaning of ‘‘agency records’’ under

FOIA, namely, whether questionnaire responses of United

States Senators sent to the Attorney General regarding their

procedures for selecting and recommending potential judicial

nominees were ‘‘agency records,’’ the court’s analysis is none-

theless instructive. Just as the power to grant pardons is a

quintessential and non-delegable Presidential duty, so too is

the Article II, Section 2 power to select and appoint federal

judges. There, as here, the President had delegated to the

Attorney General the responsibility of evaluating potential

nominees, receiving recommendations, and recommending

candidates to the President. In performing this duty, the

18

Attorney General solicited questionnaire responses from Sen-

ators on their procedures for recommending potential nomi-

nees, id. at 784, much as the Deputy Attorney General,

through the Pardon Attorney, solicits responses from agen-

cies on pardon applicants. While an inquiry into whether

documents are ‘‘agency records’’ under FOIA is different

from an inquiry into whether documents come within a FOIA

exemption, each inquiry ultimately involves shielding govern-

ment documents from public scrutiny — in these cases, on the

basis that the documents were produced for the purpose of

advising the President on a nondelegable Presidential duty.

The court in Ryan rejected a functional approach. It

reasoned that although the documents were received for the

purpose of advising the President on a nominating role that

was exclusively his, id. at 786, adopting a functional approach

to ‘‘defin[e] ‘agency records’ by the purpose for which they

exist, would cut back severely on the FOIA’s reach as inter-

preted by courts since its inception.’’ Id. at 788. The court

observed that judicial nominations were ‘‘by no means unique

as an instance where normal agency functions involve some

element of giving advice to the President.’’ Id. at 787. For

instance, the Office of Legal Counsel in the Justice Depart-

ment exists to assist the Attorney General in advising the

President on major legal issues, a large portion of the Secre-

tary of State’s functions is to advise the President in the

conduct of foreign affairs, id. at 787–88, and the Central

Intelligence Agency and the National Security Agency pro-

duce documents for the function of advising the President in

his ‘‘solely presidential role of Commander-in-Chief.’’ Id. at

788. That reasoning is equally applicable here. Extension of

the presidential communications privilege beyond the limits of

In re Sealed Case to all documents prepared or received by

the Pardon Attorney or his Office simply because they are

produced for the sole function of assisting the Deputy Attor-

ney General in presenting pardon recommendations for the

President would have far-reaching implications for the entire

executive branch that would seriously impede the operation

and scope of FOIA.

19

However, rather than focusing on whether the internal

Department documents are ‘‘agency records,’’ as in Ryan, we

proceed on the basis that the Office of the Pardon Attorney,

as an office within the Justice Department, is an agency

subject to FOIA. See Crooker v. Office of Pardon Attorney,

614 F.2d 825, 827 (2d Cir. 1980). It is the respective roles of

the Deputy Attorney General and the Pardon Attorney in

making pardon recommendations for the President that are

significant for our analysis. The Department’s assertion that

the Pardon Attorney and his staff can be likened to ‘‘immedi-

ate White House adviser’s staff,’’ In re Sealed Case, 121 F.3d

at 752, or as an extended arm of the White House Counsel’s

Office, such that all documents authored or solicited and

received by the Pardon Attorney fall under the protection of

the presidential communications privilege, is untenable in

light of the review and intermediate decision-making by the

Deputy Attorney General. The declarations and attachments

filed by the Department in the district court reveal that the

Attorney General has delegated his advisory duties on par-

dons to the Deputy Attorney General, and within the Depart-

ment, the Pardon Attorney assists the Deputy Attorney

General in performing this duty, as well as ‘‘such other duties

as may be assigned,’’ see 28 C.F.R. § 0.35(b), by the Attorney

General or the Deputy Attorney General.4 Thus, the Pardon

Attorney receives, on behalf of the President, applications for

pardons for federal criminal offenses, and in accordance with

instructions from the Deputy Attorney General’s Office, con-

ducts an investigation, calling upon other agencies such as the

Internal Revenue Service, the Federal Bureau of Investiga-

tion, the U.S. Probation Office and U.S. Attorney in the

District where the applicant was convicted. See 28 C.F.R.

§ 1.6(a). Staff in the Office of the Deputy review the Pardon

Attorney’s proposed recommendations and investigatory re-

port, and upon any necessary further investigation, prepare a

report for the Deputy Attorney General. Ultimately, the

4 Although the current rules refer to the ‘‘Associate Attorney

General,’’ see 28 C.F.R. §§ 0.35(b), 0.36 (2003), the declarations,

which were filed in 2002, refer to the delegation of the Attorney

General’s pardon duties to the Deputy Attorney General.

20

Deputy Attorney General submits, on behalf of the Attorney

General, his recommendations for the President on the par-

don applications that the Deputy has determined should be

considered by the President. See id. § 1.6(c).

The Pardon Attorney, therefore, does not, as a matter of

his working relationships, directly advise the President on

pardon recommendations or serve as immediate staff to the

White House Counsel or other key White House advisers in

the Office of the President. In practice, the Deputy Attorney

General acts as an intermediate controlling official who exer-

cises independent judgment on which pardon applications and

what recommendations to submit for the President’s consider-

ation. Cf. Ryan, 617 F.2d at 786. These internal working

relationships are part of the ‘‘regular business’’ of the Depart-

ment. See id. at 787. The fact that the Deputy Attorney

General’s recommendations for the President are transmitted

to the Office of the White House Counsel through the Pardon

Attorney does not minimize the significance for FOIA pur-

poses of the Department’s intermediary role in preparing

pardon recommendations for the President. This role con-

trasts with that of the key White House advisers in the Office

of the President who directly advise the President as was

discussed in In re Sealed Case, 121 F.3d at 752. The White

House Counsel, in the Office of the President, who enjoys

close proximity to the President, is one such key adviser; the

Pardon Attorney, in the Justice Department, who is at least

twice removed from the President, is not.

Nor can the Deputy Attorney General or Attorney General

be equated with the close presidential advisers discussed in

In re Sealed Case. Since the creation of the Department in

1870, the Attorney General has not only served as an adviser

to the President, but also as the administrator of the Depart-

ment. See Ryan, 617 F.2d at 787. Recognizing the problem

of ‘‘dual-hat’’ advisers who perform other functions in addition

to advising the President, see Armstrong v. Executive Office

of the President, 90 F.3d 553, 558 (D.C. Cir. 1996), the court

in Ryan noted that the Attorney General, as head of the

Justice Department, could not be treated as a non-agency

exempt from the FOIA when he was engaged in his presiden-

21

tial advisory functions. Ryan, 617 F.2d at 788. In In re

Sealed Case, the court’s reference to ‘‘ ‘dual hat’ presidential

advisers,’’ was limited to those ‘‘immediate White House

adviser’s staff’’ who ‘‘exercise substantial independent author-

ity or perform other functions in addition to advising the

President,’’ 121 F.3d at 752, and for these individuals, the

presidential communications privilege could apply if the gov-

ernment bore its burden of proving that their communications

occurred in the course of advising the President. See id. But,

the court in Ryan rejected the notion that the Attorney

General should be treated as ‘‘the President’s immediate

personal staff,’’ or as a unit within the Executive Office of the

President ‘‘whose sole function is to advise the President.’’

Id. at 788. Cf. Soucie, 448 F.2d at 1075. Extension of the

presidential communications privilege to the Attorney Gener-

al’s delegatee, the Deputy Attorney General, and his staff, on

down to the Pardon Attorney and his staff, with the attendant

implication for expansion to other Cabinet officers and their

staffs, would, as the court pointed out in In re Sealed Case,

‘‘pose a significant risk of expanding to a large swath of the

executive branch a privilege that is bottomed on a recognition

of the unique role of the President.’’ Id.

Instead, consistent with the Department’s historical posi-

tion and the underlying public interest, its internal documents

that are not ‘‘solicited and received’’ by the President or the

Office of the President should be evaluated under the deliber-

ative process privilege. Heretofore, in complying with FOIA

requests, the Pardon Attorney has withheld documents that

he or she considered privileged under the deliberative process

privilege, not the presidential communications privilege. For

instance, in Binion v. United States Dep’t of Justice, 695 F.2d

1189, 1191 (9th Cir. 1983), when an applicant for a Presiden-

tial pardon sought disclosure under FOIA of all records

dealing with his prior pardon applications, the Pardon Attor-

ney relied only on Exemption 5’s deliberative process privi-

lege, Exemption 7’s privilege for law enforcement records,

and the Privacy Act’s ‘‘general exemption’’ for rap sheets and

other criminal reports, to justify withholding the documents.

See also Crooker, 614 F.2d at 828. Indeed, the declaration of

22

Deputy Attorney General Larry D. Thompson states that

‘‘the documents withheld in this litigation TTT are properly

subject to the deliberative process privilege,’’ evidencing an

expectation that working documents, produced in the course

of developing the Deputy Attorney General’s recommenda-

tions for the President, would be evaluated only under the

deliberative process privilege, not the presidential communi-

cations privilege. The ultimate goal of protecting the confi-

dentiality of the President’s decision-making and his access to

candid advice is achieved under the deliberative process

privilege for those working documents that never make their

way to the Office of the President. Inasmuch as disclosure of

factual information may reveal the nature and substance of

the issues before the President, factual information is protect-

ed against disclosure under the deliberative process privilege

‘‘if it is inextricably intertwined with policy-making process-

es.’’ Soucie, 448 F.2d at 1077–78.

Consequently, to define the scope of the presidential com-

munications privilege functionally by focusing on the ‘‘sole’’

responsibility of the Pardon Attorney to advise the President

on his pardon duty, ignores the internal working relationships

of the Pardon Attorney within the Justice Department and

the fact that it is the Deputy Attorney General who makes

the final decision on the pardon recommendations to be

submitted for the President’s consideration. While a func-

tional approach has the virtue of simplicity, it comes at too

high a price: Any document that in any way pertains to

pardons would be covered by the presidential communications

privilege regardless of whether it is submitted with the

Deputy Attorney General’s pardon recommendations for the

President. To hold that all work performed in connection

with a standing request by the President for the Attorney

General’s pardon recommendations falls under the presiden-

tial communications privilege entails fundamental conceptual

difficulties. First, such an interpretation would sweep within

the reach of the presidential privilege much of the functions

of the executive branch, namely, to advise the President in

the performance of his Article II duties. Courts have long

been hesitant to extend the presidential communications priv-

23

ilege so far, for ours is a democratic form of government

where the public’s right to know how its government is

conducting its business has long been an enduring and cher-

ished value. See In re Sealed Case, 121 F.3d at 749 (quoting

Letter from James Madison to W.T. Barry (Aug. 4, 1822), in

9 WRITINGS OF JAMES MADISON 103 (Gaillard Hunt, ed. 1910)).

See also Mink, 410 U.S. at 105 (Douglas, J., dissenting)

(quoting Henry Steels Commager, The New York Review of

Books, Oct. 5, 1972, p. 7). As we cautioned in In re Sealed

Case, the courts must be ‘‘ever mindful of the dangers [of]

cloaking governmental operations in secrecy.’’ 121 F.3d at

762. Second, extending the presidential communications priv-

ilege to working documents produced in the course of advis-

ing the President on his pardon power would be inconsistent

with the Department’s historical approach of invoking the

deliberative process privilege rather than the presidential

communications privilege to protect its internal documents

and deliberations from public disclosure. The Department

has not argued, much less proffered any evidence, that the

President’s decision-making process on pardons has been

compromised in any manner as a result of the Department’s

prior reliance on the deliberative process privilege.

Our dissenting colleague reaches a different conclusion,

namely, that any and all documents originated for the sole

purpose of advising the President on a ‘‘quintessential and

nondelegable’’ power must be protected by the presidential

communications privilege, irrespective of whether they are

received by the President or any of his close White House

advisers. Dissenting Op. at 1. The dissent points to the In

re Sealed Case court’s statement that the privilege protects

‘‘pre-decisional’’ documents produced in the course of advising

the President, not just those documents that physically enter

the Oval Office. 121 F.3d at 750. See Dissenting Op. at 2.

However, application of this statement to the pardon docu-

ments at issue is problematic for several reasons. The In re

Sealed Case court extended the presidential communications

privilege beyond communications actually seen by the Presi-

dent to the working papers of the President’s immediate

White House advisers in the Office of the President, not

24

simply because the documents were ‘‘originated for the sole

purpose of advising the President,’’ Dissenting Op. at 1, but

because there was reason to believe, given the decisionmaking

process at issue, that the President’s confidentiality and

access to candid advice might otherwise suffer. That concern

is far more attenuated for working documents of an agency

that were never submitted to the Office of the President.

The dissent’s point seems to be that with regard to nondele-

gable presidential duties, no matter how many steps a com-

munication is removed from the President, if it is protected

only by the deliberative process privilege and not by the

presidential communications privilege, it risks exposing the

‘‘issues before the President,’’ thus compromising his interest

in confidentiality. Dissenting Op. at 7. But this approach

fails to acknowledge both ‘‘the general rule, underscored by

the Supreme Court in Nixon [I], that privileges should be

narrowly construed,’’ In re Sealed Case, 121 F.3d at 749, and

the significance of the hierarchy of presidential advisers

underlying the analysis in In re Sealed Case, 121 F.3d at 752.

Whereas the In re Sealed Case court recognized that the

need for the presidential communications privilege becomes

more attenuated the further away the advisers are from the

President, the dissent fails to acknowledge that the ‘‘organiza-

tional chart’’ affects the extent to which the contents of the

President’s communications can be inferred from pre-

decisional communications.

The reality is that working papers of an immediate White

House adviser in the Office of the President will be far more

revelatory of advice given to the President than internal

Department documents such as emails within the Department

‘‘transmitting information on particular pardons, and request-

ing information, such as warrants and background investiga-

tions.’’ See Vaughn Index category No. 7. The less one can

learn from these twice- and thrice-removed communications

about ‘‘the evolution of advisers’ positions and as to the

different policy options considered along the way,’’ Dissenting

Op. at 2, the less need is there to protect them under the

presidential communications privilege. Although the court

acknowledged in In re Sealed Case that the deliberative

25

process privilege would be inadequate to protect the Presi-

dent’s confidentiality and the candor of his immediate White

House advisers, 121 F.3d at 750, the court nevertheless

concluded that the presidential communications privilege

should not extend outside of the White House into executive

branch agencies. See id. at 752. For, to the extent those

concerns remain with regard to internal agency communica-

tions, the deliberative process privilege protects confidential

intra- and inter-agency communications consisting of recom-

mendations or opinions that are advisory or deliberative in

nature as well as communications revelatory of the Presi-

dent’s decisionmaking process. See Soucie, 48 F.2d at 1077–

78. See also Mink, 410 U.S. at 86, 89. The dissent’s further

argument that the President could have organized the pardon

process to bring more pre-decisional communications within

the scope of the presidential communications privilege, see

Dissenting Op. at 5; cf. Ass’n. of Am. Physicians & Sur-

geons, Inc. v. Clinton, 997 F.3d 898, 910 (D.C. Cir. 1993), is

irrelevant. The President has not done so, and the organiza-

tional structure of presidential decisionmaking matters in

determining the scope of the presidential communications

privilege because it speaks to the strength of the President’s

confidentiality interests in a particular communication. In

the FOIA context, moreover, the court has long recognized

that the way in which the President organizes and delegates

his official duties is significant. See Ryan, 617 F.2d at 789.

Finally, the dissent’s qualification that the protection of the

presidential communications privilege would attach only if the

advice is on a ‘‘quintessential and nondelegable Presidential

power,’’ Dissenting Op. at 1, draws an arbitrary line, for it

provides no reason to conclude that presidential decisions that

could have been delegated, but were not, are entitled to less

candid or confidential advice than those that could not have

been delegated at all.

Accordingly, we hold that the presidential communications

privilege applies to pardon documents ‘‘solicited and received’’

by the President or his immediate advisers in the Office of

the President, and that the deliberative process privilege

applies to internal agency documents that never make their

26

way to the Office of the President. This approach heeds the

teachings of Nixon I and II and In re Sealed Case, and

strikes an appropriate balance between the President’s need

for confidentiality and frank advice and the obligations of

open government. As is demonstrated by the Department’s

historical reliance on the deliberative process privilege, the

public interest in protecting the President’s decision-making

process is preserved without extending the presidential com-

munications privilege to internal Department documents that

do not accompany the Deputy Attorney General’s pardon

recommendations for the President and are not otherwise

solicited and received by the Office of the President. Al-

though the Supreme Court has pointed out that the ‘‘expecta-

tion of the confidentiality of executive communications [ ] has

always been limited and subject to erosion over time after an

administration leaves office,’’ Nixon II, 433 U.S. at 451, the

Department does not suggest that a lesser interest in confi-

dentiality is called for because the requested documents are

those of a former Administration.

As noted, the Vaughn index indicates that certain docu-

ments requested by Judicial Watch are not covered by the

presidential communications privilege. Internal documents

between the Office of the Pardon Attorney and the Deputy

Attorney General’s staff or communications within the Depu-

ty Attorney General’s office, that were not sent to the Office

of the President, appear to be more appropriately examined

under the deliberative process privilege. See, e.g., Vaughn

Index category Nos. 1, 2, 4, 10, 11, 13, 14, 19, 20, 21, 22, 25,

27–30. We therefore reverse that part of the grant of

summary judgment extending the presidential communica-

tions privilege to the Department’s internal documents. With

regard to other categories of documents, however, it is diffi-

cult to determine whether or not all or some of the documents

were forwarded to the Office of the President. See, e.g.,

Vaughn index Category 12 (letters among the Office of the

Pardon Attorney, United States Attorney’s Offices, and the

White House). On remand, the district court should review

those documents and determine whether they fall within the

presidential communications privilege. For those documents

27

not protected by the presidential communications privilege,

the district court should determine whether they were prop-

erly withheld under FOIA Exemption 5’s deliberative process

privilege or under FOIA Exemption 6, giving due consider-

ation to Judicial Watch’s claim that the balance of interests

weighs in favor of releasing the records and to the agency’s

obligation, pursuant to 5 U.S.C. § 552(b), to disclose all

reasonably segregable, nonexempt portions of the documents.

III.

FOIA Exemption 6 allows the government to withhold

documents about individuals in ‘‘personnel and medical and

similar files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy.’’ 5 U.S.C.

§ 552(b)(6). Its primary purpose is to ‘‘protect individuals

from the injury and embarrassment that can result from the

unnecessary disclosure of personal information.’’ United

States Dep’t of State v. Washington Post Co., 456 U.S. 595,

599 (1982). The reference to ‘‘similar files’’ has been inter-

preted broadly to include those ‘‘detailed Government records

on an individual which can be identified as applying to that

individual.’’ Id. at 602 (quoting H.R. Rep. No. 1497, U.S.

Code Cong. & Admin. News 1966, p. 2428). The Supreme

Court has long rejected a ‘‘cramped notion of personal priva-

cy.’’ United States Dep’t of Justice v. Reporters Comm. For

Freedom of the Press, 489 U.S. 749, 763 (1989).

The district court ruled that the release of non-public,

personal information regarding the pardon applicants, their

families, and the crimes they committed, could reasonably be

interpreted as invasions of personal privacy, and that there

was no indication that the disclosure of such information

would contribute significantly to the public’s understanding of

the government’s activities. See Judicial Watch, Inc. v.

United States Dep’t of Justice, 259 F. Supp. 2d 86, 91–92

(D.D.C. 2003). On appeal, Judicial Watch contends that

Exemption 6 is inapplicable, first, because pardon applications

do not concern personal information about prisoners but

rather, the basis upon which their clemency was granted, and

28

second, because convicted felons are not entitled to the same

privacy rights as other citizens. These contentions are with-

out merit.

In Reporters Comm., the Supreme Court held that the

disclosure of contents of FBI rap sheets constituted an un-

warranted invasion of personal privacy, and thus were exempt

from disclosure. Although the case involved FOIA Exemp-

tion 7(c) rather than Exemption 6, the Court’s reasoning is

instructive. This court has deemed the privacy inquiry of

Exemptions 6 and 7(c) to be essentially the same, see Reed v.

NLRB, 927 F.2d 1249, 1251 (D.C. Cir. 1991); Nat’l Ass’n of

Retired Fed. Employees v. Horner, 879 F.2d 873, 874 D.C.

Cir. 1989), although the Supreme Court has recently con-

strued Exemption 7(c) to be broader. See Nat’l Archives &

Records Admin. v. Favish, 124 S. Ct. 1570, at 1577 (2004). In

Reporters Comm., the Supreme Court described privacy as

an ‘‘individual interest in avoiding disclosure of personal

mattersTTTT [encompassing] the individual’s control of infor-

mation concerning his or her person.’’ 489 U.S. at 762–63.

The Court stated that although much of the content of FBI

rap sheets were a matter of public record, id. at 753, the

limited availability of an actual rap sheet to the public re-

flected a recognition of the privacy interests of criminals, for

there was a distinction, in the court’s view, of ‘‘scattered

disclosure of the bits of information contained in a rap sheet

and revelation of the rap sheet as a whole.’’ Id. at 764.

Thus, the Court not only recognized that criminals have

privacy interests, but also that the availability of the public

information contained in rap sheets, when compiled as one

document, implicated privacy interests.

The documents withheld by the Department under Exemp-

tion 6 consist primarily of individual petitions for pardons,

including non-public personal information about the appli-

cants and their lives before and after their convictions and

personal information about third parties. The pardon appli-

cation calls for a broad range of detailed and highly personal

information about a pardon applicant. In addition to the

usual identifying information such as name, home address,

social security number, citizenship, and physical characteris-

29

tics, the form asks the applicant to provide a detailed account

of his or her criminal history, substance abuse, occupational

licensing history, and such personal biographical matters as

family history, marital status, and the names, birth dates,

custody, and location of the applicant’s children. Information

must also be provided on residences, employment history,

military record, financial status, and medical history. Appli-

cants generally also include a description of their lives since

conviction, their mental and physical well-being, and emotion-

al pleas for pardons, including letters from friends, family

members, employers, and attorneys.

These documents easily fall under the purview of an indi-

vidual’s ‘‘interest in avoiding disclosure of personal matters,’’

and controlling ‘‘information concerning his or her person.’’

Reporters Comm., 489 U.S. at 762–63. The disclosure of the

documents Judicial Watch requests would implicate far more

serious privacy interests than those at stake in Reporters

Comm. Even though some of this information has previously

been disclosed to the public, under the reasoning of Reporters

Comm., the information is nevertheless entitled to protection.

See id. at 764. Judicial Watch’s reliance on such cases as

United States v. Amen, 831 F.2d 373 (2nd Cir. 1987), for the

proposition that pardon applicants do not have the same

privacy interests as law-abiding citizens, is misplaced. Amen

involved a Fourth Amendment claim where the Second Cir-

cuit held that prison inmates have no reasonable expectation

of privacy — i.e., they are subject to strip searches, random

cell searches, and monitoring of their telephone conversa-

tions. 831 F.2d at 379–80 (citations omitted). It does not

follow that pardon applicants, who are not necessarily still in

custody, do not have a privacy interest in documents contain-

ing sensitive personal information. See also Smith v. Fair-

man, 678 F.2d 52, 54 (7th Cir. 1982). Furthermore, these

types of personal records are unlikely to shed light on the

Department’s conduct in the pardoning process. See Report-

ers’ Comm., 489 U.S. at 773. The operative inquiry in

determining whether disclosure of a document implicating

privacy issues is warranted is the nature of the requested

document itself, not the purpose for which the document is

30

being requested. See id. at 772. Accordingly, we affirm the

grant of summary judgment for documents withheld pursuant

to Exemption 6, for the district court correctly ruled that

their disclosure would constitute ‘‘a clearly unwarranted inva-

sion of personal privacy,’’ 5 U.S.C. § 552(b)(6), that outweighs

any public interest that Judicial Watch may claim in their

disclosure.

IV.

Under FOIA, the Department is permitted to charge a

reasonable fee for searching, copying, and reviewing its files.

See 5 U.S.C. § 552(a)(4)(A)(ii). Fees are to be reduced or

waived if disclosure of the requested information is ‘‘in the

public interest because it is likely to contribute significantly

to public understanding of the operations or activities of

government and is not primarily in the commercial interest of

the requester.’’ Id. § 552(a)(4)(A)(iii). For a request to be in

the ‘‘public interest,’’ four criteria must be satisfied: (1) the

request must concern the operations or activities of govern-

ment; (2) the disclosure must be ‘‘likely to contribute’’ to an

understanding of government operations or activities; (3)

disclosure must contribute to an understanding of the subject

by the public at large; and (4) disclosure must be likely to

contribute significantly to such public understanding. See 28

C.F.R. § 16.11(k)(2). The Department’s regulations also pro-

vide that, ‘‘The disclosure of information that already is in the

public domain, in either a duplicative or a substantially identi-

cal form, would not be as likely to contribute to such [public]

understanding where nothing new would be added to the

public’s understanding.’’ Id. § 16.11(k)(2)(ii). The burden of

satisfying the public interest standard is on the requestor.

See Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988).

However, proof of the ability to disseminate the released

information to a broad cross-section of the public is not

required. See Carney v. United States Dep’t of Justice, 19

F.3d 807, 814 (2d Cir. 1994).

In response to Judicial Watch’s requests for a blanket

waiver of FOIA processing fees under 5 U.S.C.

31

§ 552(a)(4)(A)(iii), the Department, in moving for summary

judgment, argued that Judicial Watch was seeking informa-

tion that was already in the public domain and thus not likely

to contribute significantly to the public’s understanding of the

pardon process. After initially denying the Department’s

motion on the ground that Judicial Watch did not have access

to any of the documents and could not determine whether

they were publicly available, the court, upon reconsideration,

granted summary judgment to the Department based upon

its subsequent release of more than 15 percent of the total

pages of the non-exempt documents and a supplemental

Department affidavit averring that additional non-exempt

pardon documents were also in the public domain. On ap-

peal, Judicial Watch contends that it has met all four of the

Department’s criteria for qualifying for a fee waiver, see 28

C.F.R. § 16.11(k)(2)(i-iv), but has been placed in a ‘‘catch–22’’

situation by being asked to identify the documents that would

most likely contribute to the public’s understanding of the

pardon process before it has access to any of the documents.

Despite receipt of thousands of pages of requested docu-

ments, Judicial Watch has made no showing that these docu-

ments were not publicly available. Absent some indication of

why it was not reasonable for the district court to have relied

on the documents already released by the Department and its

supplemental declaration as to the remaining non-exempt

documents, there is no basis to conclude that Judicial Watch

is entitled to a blanket waiver of FOIA processing fees. See

Larson, 843 F.2d at 1483. Under Department regulations,

when the costs of an anticipated duplication is determined to

be in excess of $250, the Department may ‘‘require the

requester to make an advance payment of an amount up to

the amount of the entire anticipated fee’’ prior to producing

any of the documents to the requester. See 28 C.F.R.

§ 16.11(i)(2). Further, if advance payment or a good faith

commitment to pay the anticipated duplication fees is not

provided, the regulations provide that ‘‘the request shall not

be considered received and further work will not be done on

it until the required payment is received.’’ Id. § 16.11(i)(4).

32

Hence, the Department properly refused to process further

documents without payment of the required fees.

At the same time, Judicial Watch cannot be expected to

show that the unreleased documents are not, in fact, publicly

available. The Department acknowledges as much on appeal.

While continuing to maintain that Judicial Watch is not

entitled to a blanket fee waiver, the Department states in its

brief that some documents sought by Judicial Watch may

qualify for a waiver of fees, and that the Pardon Attorney will

grant fee waivers for those particular documents. See Appel-

lee’s Brief at 43. In light of this acknowledgment, Judicial

Watch has obtained the only relief to which it is entitled

under the regulations. See 5 U.S.C. § 552(a)(4)(A)(iii); 28

C.F.R § 16.11(k)(2)(i-iv).

Accordingly, we reverse, in part, the grant of summary

judgment to the Department based on application of the

presidential communications privilege to the internal docu-

ments of the Department withheld pursuant to Exemption 5,

and otherwise affirm the grant of summary judgment to the

Department on documents withheld pursuant to Exemption 6

and Judicial Watch’s request for a blanket waiver of the

FOIA processing fees.

33

34

35

36

37

38

39

40

41

1

RANDOLPH, Circuit Judge, dissenting: In my view, docu-

ments originated for the sole purpose of advising the Presi-

dent on his pardon power are protected by the presidential

communications privilege. The President alone has the

‘‘Power to grant Reprieves and Pardons for Offenses against

the United States,’’ U.S. CONST. art. II, § 2, cl. 1; he cannot

delegate this authority. See THE FEDERALIST NO. 74 (Alexan-

der Hamilton). In exercising his nondelegable power to

pardon, the President has historically requested and received

recommendations from the Office of Pardon Attorney, as

reviewed by the Deputy Attorney General. The Pardon

Attorney produces documents and other information in deter-

mining what advice to give to the President. As in In re

Sealed Case, this information is ‘‘generated in the course of

advising the President in the exercise of TTT a quintessential

and nondelegable Presidential power.’’ 121 F.3d 729, 752

(D.C. Cir. 1997). It follows that the information and docu-

ments, as well as the final recommendation, are privileged.

‘‘A President and those who assist him must be free 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.’’ United States v.

Nixon, 418 U.S. 683, 708 (1974); see Nixon v. Administrator

of Gen. Servs., 433 U.S. 425, 447 n.10 (1977).

The majority agrees that the presidential communications

privilege protects the Pardon Attorney’s final recommenda-

tions sent to the President. But it holds the privilege inappli-

cable to the drafts of those recommendations, or to any other

documents the Pardon Attorney or his supervisor, the Deputy

Attorney General, produce in formulating advice to the Presi-

dent on ‘‘Reprieves and Pardons.’’ U.S. CONST. art. II, § 2, cl.

1. In re Sealed Case gave good reasons for holding the

opposite: ‘‘In the vast majority of cases, few if any of the

documents advisers generate in the course of their own

preparation for rendering advice to the President, other than

documents embodying their final recommendations, will ever

enter the Oval Office. Yet these pre-decisional documents

are usually highly revealing as to the evolution of advisers’

positions and as to the different policy options considered

along the way. If these materials are not protected by the

presidential privilege, the President’s access to candid and

2

informed advice could well be significantly circumscribed.’’

121 F.3d at 750.

The majority has two grounds, repeated in many different

ways, for departing from this precedent. The first relies on

an organizational chart, the second on a slippery slope.

The Office of Pardon Attorney is in the Department of

Justice rather than at 1600 Pennsylvania Avenue. Hence the

Pardon Attorney is not in ‘‘close proximity’’ to the Oval Office

(maj. op. at 20); he is ‘‘not close enough to the President’’ (id.

at 15); he is ‘‘at least twice removed from the President’’

because his recommendations are reviewed by the Deputy

Attorney General (id. at 14, 20); he is too far away from the

President (id. at 11). I think none of this matters. The

talk – actually dicta – in In re Sealed Case about operational

proximity to the President, 121 F.3d at 752, was directed at

ensuring that documents were generated for the purpose of

advising the President.1 There is no need to worry about

that here. Despite hints to the contrary in the majority

opinion, the uncontested fact in this case is that all of the

Pardon Attorney’s duties and responsibilities are aimed at

formulating advice for the President about pardons. As to

documents involving the Deputy Attorney General, there is

no contention that he was doing anything else than participat-

ing in the Pardon Attorney’s preparation of recommendations

to the President. In these circumstances, ‘‘there is assurance

that even if the President were not a party to the communica-

tions over which the government is asserting presidential

privilege, these communications nonetheless are intimately

1 The majority opinion also relies on Ryan v. Dep’t of Justice, 617

F.2d 781 (D.C. Cir. 1980). Ryan has nothing to do with the issue in

this case. The issue in Ryan was whether a particular entity was

an ‘‘agency’’ within the meaning of the Freedom of Information Act.

Everyone agrees the Office of Pardon Attorney is an agency. The

question here is whether the presidential communications privilege

protects the materials the Office of Pardon Attorney and the

Deputy Attorney General generate for the purpose of advising the

President, a question on which Ryan had nothing to say.

3

connected to his presidential decisionmaking.’’ In re Sealed

Case, 121 F.3d at 753.2

Nonetheless the majority treats as decisive the dicta in In

re Sealed Case stating that the privilege applies only to

information ‘‘solicited and received’’3 by the President or his

close advisers and their staff, 121 F.3d at 752. It is bad

enough ‘‘to dissect the sentences of the United States Reports

as though they were the United States Code.’’ St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993); see Aka v.

Washington Hosp. Ctr., 156 F.3d 1284, 1291 (D.C. Cir. 1998)

(en banc). It is far worse to treat dicta in one of our opinions

as if it were some sort of statute. Besides, the extraneous

statement in In re Sealed Case itself rested on the following

dicta in Association of American Physicians & Surgeons,

Inc. v. Clinton, 997 F.2d 898, 910 (D.C. Cir. 1993) (AAPS):

‘‘We believe it is the Task Force’s operational proximity to

the President, and not its exact function at any given mo-

2 The full quotation is:

In this case the documents in question were generated in

the course of advising the President in the exercise of his

appointment and removal power, a quintessential and non-

delegable Presidential power. In many instances, presi-

dential powers and responsibilities, for example the duty to

take care that the laws are faithfully executed, can be

exercised or performed without the President’s direct in-

volvement, pursuant to a presidential delegation of power

or statutory framework. But the President himself must

directly exercise the presidential power of appointment or

removal. As a result, in this case there is assurance that

even if the President were not a party to the communica-

tions over which the government is asserting presidential

privilege, these communications nonetheless are intimately

connected to his presidential decisionmaking.

In re Sealed Case, 121 F.3d at 752-53 (citation and parenthetical

omitted).

3 There is no dispute that the White House ‘‘solicits’’ advice from

the Pardon Attorney and Deputy Attorney General. Pardon re-

quests are addressed directly to the President, who then submits

the applications to the Pardon Attorney.

4

ment, that implicates executive powersTTTT The President’s

confidentiality interest is strong regardless of the particular

role the Task Force is playing on any given day.’’ The court

in AAPS was not referring to members of the immediate

White House staff. The ‘‘Task Force’’ was established by the

President to advise him on health care legislation. 997 F.2d

at 901. The majority opinion comes up with nothing to

distinguish such a group, drawn from throughout the Execu-

tive Branch, from the Office of the Pardon Attorney. If the

President set up an executive branch task force each time he

received a pardon application and asked the members to

advise him whether to grant or deny the pardon, there is no

doubt that the work of each such task force would be covered

by the privilege. It can make no difference that the Presi-

dent, instead, relies on a permanent office to perform the

same function.

The majority’s other reason for not holding the privilege

applicable to the Pardon Attorney is of the slippery slope

variety: if the privilege applied this ‘‘would have far-reaching

implications for the entire executive branch that would seri-

ously impede the operation and scope of FOIA’’ (maj. op. at

18); it ‘‘would sweep within the reach of the presidential

privilege much of the functions of the executive branch’’ (id.

at 22); it would result in ‘‘ ‘expanding to a large swath of the

executive branch a privilege that is bottomed on a recognition

of the unique role of the President.’ ’’ Id. at 21, quoting In re

Sealed Case, 121 F.3d at 752.

The slope is slippery, the majority argues, because there is

no non-arbitrary line between this case and other FOIA cases

throughout the Executive Branch. The argument is invalid.

The dividing line is clear, it is unmistakable and it is princi-

pled. It is a line In re Sealed Case itself recognized in

distinguishing advice about ‘‘a quintessential and nondelega-

ble Presidential power,’’ which is subject to the privilege,

from ‘‘information regarding governmental operations that do

not call ultimately for direct decisionmaking by the Presi-

dent,’’ which is not. 121 F.3d at 752. The vast majority of

executive branch documents – those relating either to dele-

gated responsibilities or having purposes other than advising

5

the President on a nondelegable duty – would therefore not

be swept in if the privilege were applied here.

In response to this dissent, the majority opinion tells us:

‘‘The reality is that working papers of an immediate White

House adviser in the Office of the President will be far more

revelatory of advice given to the President than internal

Department [of Justice] documentsTTTT’’ Maj. op. at 24. I

do not know where the majority gets this idea. The record

does not support it. It is impossible for me to understand

how one can say that the Pardon Attorney’s drafts of his final

recommendation to the President will reveal less about advice

to the President than the internal musings of those in the

President’s immediate vicinity. In short, the Pardon Attor-

ney’s proximity to the President is not the key. It is the

function the Pardon Attorney performs that should have

controlled.

The majority takes comfort in the fact that some of the

Pardon Attorney’s documents it has artificially excluded from

the presidential privilege ‘‘will in any event remain protected

pursuant to the deliberative process privilege,’’ thus making

the ‘‘justification’’ for applying the presidential communica-

tions privilege ‘‘disappear[ ].’’ Maj. op. at 16. This too is an

unwarranted departure from the essential reasoning of In re

Sealed Case. ‘‘The protection offered by the more general

deliberative process privilege will often be inadequate to

ensure that presidential advisers provide knowledgeable and

candid advice, primarily because the deliberative process

privilege does not extend to purely factual material.’’ 121

F.3d at 750. More than that, ‘‘[e]xposure of the factual

portions of presidential advisers’ communications also repre-

sents a substantial threat to the confidentiality of the Presi-

dent’s own deliberations. Knowledge of factual information

gathered by presidential advisers can quickly reveal the

nature and substance of the issues before the PresidentTTTT’’

Id. In response the majority has nothing to say.

I therefore dissent.