UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY 

PROJECT, INC.,

Plaintiff, 

v. 

U.S. DEPARTMENT OF DEFENSE, et al.,

Defendants. 

Case No. 17-cv-00842 (CRC)

MEMORANDUM OPINION 

On April 6, 2017, President Trump ordered a cruise missile strike on the Shayrat military 

airfield in western Syria. Administration officials explained that the strike was a response to the

chemical attack that had killed dozens of Syrian civilians three days earlier—one that, according 

to U.S. intelligence, had been directed by Syrian president Bashar Al-Assad. 

The day after the U.S. missile strike, a nonprofit called The Protect Democracy Project, 

Inc. submitted several requests under the Freedom of Information Act (“FOIA”) seeking 

documents related to the President’s legal authority to launch the strike. It filed these requests 

with the Department of State, the Department of Defense, and three components of the

Department of Justice, including the Office of Legal Counsel. The agencies released some 

responsive documents but withheld fifteen documents in full. The withheld documents fall into 

three categories. The first includes three iterations of a legal memorandum produced by an 

interagency group of lawyers for the President’s national security staff on the day the strike was 

ordered. The second is an outline drafted by attorneys in the Department of Justice’s Office of 

Legal Counsel to help the Office advise the Attorney General on the legal basis for the strike the 

day after it was launched. And the third includes several sets of talking points prepared to assist 
2

Executive Branch officials in answering questions from the press and from Congress. To justify 

withholding these documents, the agencies invoked several FOIA exemptions. Chief among 

them was Exemption 5, which shields from disclosure documents that would typically be 

privileged in civil discovery. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). 

Protect Democracy and the government now ask the Court to decide whether the 

documents were properly withheld under FOIA. For the most part, the Court finds the agencies’ 

withholdings justified. The Court does, however, find that a small amount of information in 

several of the talking-point documents has already been officially acknowledged, and thus that 

the agencies may not withhold that information. It will therefore grant in part and deny in part 

each party’s motion for summary judgment.

I. Background

On April 7, 2017, the day after the Shayrat airfield strike, Protect Democracy sent 

identical FOIA requests to the Department of State (“State”), the Department of Defense

(“DOD”), and three components of the Department of Justice (“DOJ”)—collectively, “the 

agencies.” The requests sought: 

Any and all records [from April 4, 2017 through the present], including but not limited 

to emails and memoranda, reflecting, discussing, or otherwise relating to the April 6, 

2017 military strike on Syria and/or the President’s legal authority to launch such a 

strike. This request includes, but is not limited to, internal [agency] communications, 

communications between [agency] employees and the Executive Office of the 

President, and communications between [agency] employees and other agencies.

Compl. Exs. A, C, E, G, I.

Having received no responses to these requests a month after their submission, Protect 

Democracy brought this lawsuit alleging violations of FOIA. It also moved for a preliminary 

injunction that would compel the agencies to review its requests on an expedited basis. Mot. 

Prelim. Inj. at 2. In July 2017, this Court granted that request. See Order, ECF No. 15 (July 17, 
3

2017). The parties worked to narrow the scope of Protect Democracy’s requests and the 

agencies provided a final response in September 2017. Joint Status Report, ECF No. 20, ¶¶ 2–3

(Sept. 15, 2017). The agencies released some documents in full, released redacted versions of 

others, and withheld fifteen outright. In redacting and withholding certain documents, the 

agencies invoked several of FOIA’s exemptions—specifically, Exemptions 1, 5, 6, and 7. The 

parties then filed cross-motions for summary judgment on the question of whether the agencies 

properly withheld the fifteen documents. At this point, the crux of their dispute is whether the 

documents are protected under Exemption 5, which shields materials “normally privileged in the 

civil discovery context.” Sears, 421 U.S. at 149. 

After an initial review of the parties’ filings, the Court concluded that it needed to see the 

talking points—documents 5 through 15 in the government’s Vaughn index1

—before it could 

resolve an important aspect of the dispute. See 5 U.S.C. § 552(a)(4)(B) (authorizing the Court to 

“examine the contents of [withheld] agency records in camera to determine whether such records 

or any part thereof shall be withheld” under a FOIA exemption). Specifically, Protect 

Democracy contends that the government has waived any privileges applicable to the withheld 

documents by publicly acknowledging information contained in them. See Fitzgibbon v. CIA, 

911 F.2d 755, 765 (D.C. Cir. 1990) (“[W]hen information has been ‘officially acknowledged,’ its 

disclosure may be compelled even over an agency’s otherwise valid exemption claim.”). With 

respect to documents 5 through 15, the Court found that Protect Democracy had cited public 

statements by Trump Administration officials sufficient to meet its “initial burden of pointing to 

specific information in the public domain that appears to duplicate that being withheld.” Order, 

 1 A “Vaughn index” is a document that summarizes the government’s withholdings of 

documents responsive to a FOIA request. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
4

ECF. No. 33, at 3 (Apr. 25, 2018) (quoting Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. 

Cir. 1983)). Yet the government’s descriptions of the documents were not detailed enough for 

the Court “to decide whether their information sufficiently overlaps with the public statements so 

as to satisfy the D.C. Circuit’s exacting test for public acknowledgment.” Id. The Court has 

now reviewed documents 5 through 15 in camera.

The Court also directed supplemental briefing on another issue related to public 

acknowledgement. On May 31, 2018, the Office of Legal Counsel (“OLC”) publicly released a 

22-page memorandum justifying the legality of a second set of missile strikes that President 

Trump directed against Syria on April 13, 2018. See Steven A. Engel, Ass’t Att’y Gen., OLC, 

April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities (May 31, 2018), 

https://perma.cc/NX69-56E6. Noting that little of the 2018 memorandum’s analysis was 

“particularized to the recent strike” and that some of its reasoning “closely align[ed] with the 

publicly stated rationale for the 2017 strike,” the Court found it “at least plausible that ‘specific 

information in the public domain’ (i.e., the 2018 memorandum) duplicated ‘that being withheld’ 

(i.e., the 2017 memorandum).” Order, ECF No. 36, at 3–4 (June 5, 2018) (quoting Afshar, 702 

F.2d at 1130). The Court therefore ordered the parties to file supplemental briefs, with affidavits 

as necessary, addressing whether OLC’s release of the 2018 memorandum constituted a waiver 

of any applicable privileges for purposes of Exemption 5. The parties submitted those briefs in 

late June. The government’s included a sworn declaration from Paul Colborn, a senior OLC

official responsible for overseeing the Office’s FOIA requests.

II. Legal Standards

FOIA requires federal executive agencies to produce their records upon request unless 

one of the Act’s nine exemptions applies. See 5 U.S.C. § 552(b). The exemptions aim “to 
5

balance the public’s interest in governmental transparency against ‘legitimate governmental and 

private interests [that] could be harmed by release of certain types of information.’” United 

Techs. Corp. v. DOD, 601 F.3d 557, 559 (D.C. Cir. 2010) (alteration in original) (quoting 

Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 

1992) (en banc)). “But these limited exemptions do not obscure the basic policy that disclosure, 

not secrecy, is the dominant objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 

361 (1976). Thus, where a plaintiff challenges an agency’s withholding of records, the agency 

bears the burden of showing that one of FOIA’s exemptions applies. ACLU v. DOD, 628 F.3d 

612, 619 (D.C. Cir. 2011).

FOIA disputes are generally resolved on cross-motions for summary judgment. In 

evaluating each motion, the Court must view the record in the light most favorable to the nonmovant. The agency may satisfy its burden of showing that a FOIA exemption applies through 

an affidavit that “describes the justifications for withholding the information with specific detail, 

demonstrates that the information withheld logically falls within the claimed exemption, and is 

not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith.” 

ACLU v. DOD, 628 F.3d at 619.

III. Analysis

The agencies withheld fifteen documents that they deemed responsive to Protect 

Democracy’s requests. The Court will evaluate the agencies’ claims of privilege over each 

category of documents in turn: the legal opinion, the OLC outline, and the talking points.

A. Interagency Legal Memorandum

The agencies’ Vaughn index identifies three versions of a seven-page legal memorandum

prepared on April 6, 2017 by a group of attorneys from State, DOD, and OLC. The first two 
6

documents are final versions of the memorandum—one belongs to State and the other to DOJ. 

The third is a “prior draft” version from DOD. The government contends that all three 

documents are exempt from disclosure under FOIA Exemption 5.2 The Court agrees.

Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or 

letters that 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). Put more simply, the exemption shields information that would 

be “normally privileged in the civil discovery context.” Sears, 421 U.S. at 149. “Normally

privileged” means that, unlike in civil discovery, courts do not ask whether the agency’s

assertion of privilege is overcome by the plaintiff’s showing of need. Rather, “[t]he test under 

Exemption 5 is whether the documents would be ‘routinely’ or ‘normally’ disclosed upon a 

showing of relevance.” FTC v. Grolier Inc., 462 U.S. 19, 26 (1983). If not, then withholding is 

proper. 

The government contends that the legal memorandum is covered by three wellestablished privileges—those that protect presidential communications, attorney-client 

communications, and deliberative processes. Each of these privileges has been recognized as a 

basis for withholding documents under Exemption 5. See Judicial Watch, Inc. v. DOJ, 365 F.3d 

1108, 1113 (D.C. Cir. 2004); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 

(D.C. Cir. 1980). 

 2 The agencies initially also invoked Exemptions 1 and 3 in withholding the 

memorandum, claiming that it contained classified and statutorily protected information. But 

Protect Democracy has clarified that it seeks only portions of the document that provides legal 

analysis regarding the military strikes, and not any of its factual information. The Government 

concedes that this legal analysis is not protected under Exemptions 1 or 3, and that the 

information Protect Democracy seeks is segregable from the protected factual material in the 

memorandum. Thus, the sole remaining issue with the memorandum is whether information in 

the documents was properly withheld under Exemption 5.
7

Before explaining its conclusion that the memorandum falls within at least one of these 

privileges, the Court must confront the threshold issue of whether any of its information has been 

“officially acknowledged” such that the information must be disclosed over the agencies’ 

otherwise valid Exemption 5 claim, or if any applicable privileges have been otherwise waived. 

For information to be “officially acknowledged,” “(1) the information requested must be as 

specific as the information previously released; (2) the information requested must match the 

information previously disclosed; and (3) the information requested must already have been 

made public through an official and documented disclosure.” ACLU v. DOD, 628 F.3d at 620–

21. The related doctrine of waiver is more context-specific, but at a minimum it bars agencies

from withholding documents under Exemption 5 that have been shared outside of the 

government. See Ctr. for Int’l Envtl. Law v. Office of U.S. Trade Rep., 237 F. Supp. 2d 17, 25 

(D.D.C. 2002) (“[C]ommunications between agencies and outside parties are not protected under 

Exemption 5.”).3

 3 The official acknowledgement doctrine developed in cases involving different FOIA 

exemptions—namely, Exemptions 1 and 3, which relate to classified or otherwise sensitive 

information. See ACLU v. DOD, 628 F.3d at 622. The Court is not aware of any cases in this 

Circuit applying the doctrine to overcome withholdings made under Exemption 5; rather, the 

courts that have evaluated the relationship between public disclosure and Exemption 5 have done 

so using the doctrine of waiver. See, e.g., Citizens for Responsibility & Ethics in Wash. v. DOJ, 

658 F. Supp. 2d 217, 236–37 (D.D.C. 2009). But, at least in this case, the Court finds the

analysis basically duplicative. Surely if the government publicly releases information that 

specifically matches information it has withheld pursuant to a privilege under Exemption 5, that 

release amounts to a waiver of privilege. See, e.g., N.Y. Times v. DOJ, 756 F.3d 100, 114 (2d 

Cir. 2014) (“Voluntary disclosures of all or part of a document may waive an otherwise valid 

FOIA exemption, and the attorney-client and deliberative privileges, in the context of Exemption 

5, may be lost by disclosure.” (citations omitted)). And Protect Democracy’s assertion of waiver 

mostly overlaps with its argument regarding official acknowledgment: it claims “that the 

government’s public statements in the wake of the strike . . . waived privilege as to at least some 

of the material in either the memo and/or the talking points.” Pl.’s Mot. Summ. J. at 29.
8

Protect Democracy argues two bases for official acknowledgement or waiver: first, public 

statements from government officials to the press after the strikes and, second, the OLC opinion

released last May about the 2018 strikes. In the Court’s view, neither amounts to official 

acknowledgement. 

The press statements are discussed in more detail below in the context of whether they 

officially acknowledged the content of press guidance documents prepared after the strike. It is 

enough to say here that they did not plausibly match the analysis in the legal memorandum 

closely enough to constitute official acknowledgement. None of the cited public statements

mentioned the existence of a legal memorandum regarding the strikes, nor did any officials

publicly state a legal rationale particularized enough that one could expect it to duplicate the 

analysis of a seven-page interagency memorandum. This case is therefore unlike the decision 

that Protect Democracy primarily relies on, where the Second Circuit found that the release of a 

“white paper” summarizing an OLC opinion and officials’ public statements acknowledging 

reliance on the OLC opinion together amounted to a waiver of any applicable privileges over the 

opinion. See N.Y. Times v. DOJ, 756 F.3d 100, 114–16 (2d Cir. 2014).

Nor does the recently released 2018 OLC opinion officially acknowledge the contents of 

the 2017 memorandum. In his declaration supporting the government’s supplemental brief, OLC 

official Paul Colborn states plainly that “[n]othing in the [2018] Opinion quotes from, describes, 

discloses, or even refers to the [2017 Opinion]. Indeed, no part of the [2018] Opinion makes any 

reference at all to any legal advice that OLC or any other government attorney did or did not 

provide to the President or his senior advisers prior to the 2017 military strike against the Al 

Shayrat airfield.” Third Decl. of Paul P. Colborn Supp. Defs.’ Mot. Summ. J. ¶ 9. The Court 

must accept this statement as true absent contrary evidence or signs that the agency is acting in 
9

bad faith—neither of which are present here. SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1200

(D.C. Cir. 1991); see also ACLU v. DOD, 628 F.3d at 621 (giving “substantial weight” to 

agency affidavit’s statement “that there are substantive differences between the content of the 

publically released government documents and the withheld information”). And contrary to 

Protect Democracy’s argument, in camera review of the 2017 memorandum is not warranted, as 

Mr. Colburn’s declaration provides sufficiently detailed information for the Court “to make a 

responsive de novo determination” regarding the question of official acknowledgment. Ray v. 

Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978); see also ACLU v. CIA, 109 F. Supp. 3d 220, 243 

(D.D.C. 2015) (declining to engage in in camera review where government declaration provided 

“detailed descriptions of [withheld] legal memoranda”). In short, Protect Democracy has not 

shown that “the information requested” in the 2017 memorandum “match[es] the information 

previously disclosed” in the 2018 memorandum. ACLU v. DOD, 628 F.3d at 620.

That leaves whether the legal memorandum is privileged, such that the agencies properly 

withheld it under Exemption 5. The Court finds that the withholding of the memorandum is 

justified under the presidential communications privilege, and it therefore need not decide 

whether the attorney-client or deliberative-process privileges would also support withholding.

The presidential communications privilege protects “documents or other materials that 

reflect presidential decision-making and deliberations and that the President believes should 

remain confidential.” Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997). When properly invoked, 

the privilege broadly protects “documents in their entirety, and covers final and post-decisional 

materials as well as pre-deliberative ones.” Id. at 745. But as its name suggests, this privilege is 

narrow with respect to whose documents it protects. Materials are covered only if they were 

“authored or solicited and received by those members of an immediate White House adviser’s 
10

staff who have broad and significant responsibility for investigating and formulating the advice 

to be given the President on the particular matter to which the communications relate.” Id. at

752. If they meet that definition, the communications need not actually be relayed to the 

President himself, nor even to an immediate White House adviser, because “in many instances 

advisers must rely on their staff to investigate an issue and formulate the advice to be given to 

the President.” Id.

The legal memorandum here was not authored or solicited by the President himself. 

Rather, the government’s asserted basis for the privilege is that the advice in the document was

solicited by the Deputy Legal Adviser of the National Security Council (“NSC”).

4

 According to 

the government, the Deputy’s role in the President’s national security decisionmaking, plus the 

fact that the opinion was solicited for the purpose of advising him on whether to launch the 

strike, means that the opinion is necessarily covered by the privilege. 

The Court agrees. At the outset, the structure of the NSC shows that its Legal Adviser is 

the sort of “immediate White House adviser” whose national security documents are subject to 

protection by the privilege. The NSC sits within the Executive Office of the President and, 

among its other goals, works to “assess and appraise the objectives, commitments, and risks of 

the United States in relation to the actual and potential military power of the United States, and 

make recommendations thereon to the President.” 50 U.S.C. § 3021(b)(2). The Council consists 

of the President and Vice President, several cabinet members, and “a civilian executive secretary 

 4 In its summary judgment motion and accompanying declarations, the government 

revealed only that “staff’ to the NSC Legal Adviser solicited the opinion. In response to Protect 

Democracy’s argument that these assertions were not sufficiently specific, the government 

submitted a supplemental declaration explaining that the Deputy NSC Legal Adviser solicited 

and received the opinion, and that he also “coordinated with the interagency group of attorneys 

to create the document.” Suppl. Decl. of Eric F. Stein Supp. Defs.’ Mot. Summ. J ¶ 7.
11

appointed by the President” who, in turn, may appoint a staff. Id. § 3021(c)(1), (e)(1)–(2). That 

staff includes a Legal Adviser who, in the current administration, carries the full title of “Deputy 

Assistant to the President, NSC Legal Advisor, and Deputy Counsel to the President for National 

Security Affairs.” Press Release, President Donald J. Trump Announces Key Additions to the 

Office of the White House Counsel (Mar. 7, 2017), https://perma.cc/W6Y9-EZB2. He attends 

all meetings of the so-called “Deputies Committee,” which is “the senior sub-Cabinet

interagency forum for consideration of, and where appropriate, decision making on policy issues 

that affect the national security interests of the United States.” Organization of the National 

Security Council, Homeland Security Council, and Subcommittees, 82 F.R. 16881, 16883 (Apr.

4, 2017). In short, the Legal Adviser has “broad and significant responsibility for investigating 

and formulating the advice to be given the President” regarding national security. Sealed Case, 

121 F.3d at 752. So if the Legal Adviser were to solicit a document related to a national security 

decision being contemplated by the President, it would no doubt be protected by the presidential 

communications privilege.

It follows that opinions solicited by the Deputy NSC Legal Adviser are no less protected. 

Again, the D.C. Circuit has expressly held that documents solicited by the staff of immediate

White House advisers may be covered by the privilege. Sealed Case, 121 F.3d at 752 (shielding 

documents authored by a legal extern “at the request of the two associate White House Counsel 

with broad and significant responsibility” for a White House investigation). And based on the 

government’s declarations, it is clear that the Deputy NSC Legal Adviser is the sort of staff

member that the D.C. Circuit had in mind when setting the scope of the privilege. As the 

government explains, the Deputy “has broad and significant responsibility for investigating and 

formulating advice to the President in matters that implicate the President’s decisions concerning 
12

foreign policy or national security.” Suppl. Decl. of Eric F. Stein Supp. Defs.’ Mot. Summ. J. 

(“Suppl. Stein Decl.”) ¶ 6. He is no line attorney. His full title is “Deputy Legal Advisor, 

Special Assistant to the President, and Senior Associate Counsel to the President.” He is the sole 

individual with that title. And unlike the officials whose documents the D.C. Circuit declined to 

protect in Judicial Watch, the Deputy has no official role outside the walls of the White House. 

Cf. 365 F.3d at 1117 (declining to extend privilege to documents solicited by DOJ officials).

Protect Democracy objects that “the government’s declarations are largely silent as to the 

role that both the [Deputy NSC Legal Adviser] and the supposed legal advice played” in the 

President’s decision of whether to launch the strikes. Pl.’s Reply at 8. It claims that, without

more specific information on that front, the Court cannot be sure that the opinion was actually 

solicited to aid presidential decisionmaking. 

To be sure, the government’s declarations provide little detail on the role of the legal 

opinion in the President’s decision. A declaration from a State Department official simply states

that the Deputy Legal Adviser solicited the opinion “for the purpose of providing advice and 

recommendations to the President and other senior Executive Branch officials regarding the legal 

basis for potential military action.” Suppl. Stein Decl. ¶ 6. There is no indication that the 

President was briefed on the legal basis for the strike. But the government need not make a

particularized showing about the role of a certain document in the President’s decision. Rather,

the very nature of the decision here—whether to attack a foreign nation—assures the Court “that 

even if the President were not a party to the communications over which the government is 

asserting presidential privilege, these communications nonetheless are intimately connected to 

his presidential decisionmaking.” Sealed Case, 121 F.3d at 753. That is because commanding 

the armed forces, like appointing and removing the officers at issue in Sealed Case, is “a 
13

quintessential and nondelegable Presidential power.” Id. at 752; see U.S. Const. art. II, § 2, cl. 

1.5 Thus, even if the legal analysis in the memorandum was not communicated to the President, 

the circumstances of its solicitation—by the staff of a close national security adviser leading up 

to an important military decision—shows that the document was created for the purpose of 

advising the President on that decision. It is protected by the presidential communications 

privilege and is therefore exempt from disclosure under FOIA Exemption 5.

B. OLC Outline

The agencies have also withheld an “an unclassified outline, prepared by OLC attorneys 

for the purpose of advising the Attorney General regarding the legal basis” for the April 6 missile 

strike. Decl. of Paul P. Colborn Supp. Defs.’ Mot. Summ. J. (“First Colborn Decl.”) ¶ 19. The 

outline is not dated, but OLC believes that it was finalized on April 7, the day after the strike. 

See Defs.’ Mot. Summ. J. Ex. 6 (“Vaughn Index”) at 3. The Assistant Attorney General in 

charge of OLC used the outline “to assist him in providing oral legal advice to the Attorney 

General” regarding the legal basis for the strike. Id. 

The government claims that the outline is exempt from disclosure under Exemption 5 

because it is covered by deliberative process privilege and by attorney-client privilege. The 

Court agrees with respect to the latter privilege, and thus need not decide whether the former also 

applies. 

 5 Of course, Protect Democracy doubts that the President has lawfully exercised this 

power—it seeks the interagency memorandum in part because it wants to expose the President’s 

lack of constitutional authority to launch the strikes. But an allegation that the executive’s 

decision was unlawful cannot render unprotected legal opinions he seeks in making that 

decision; legal opinions are most valuable in the face of legal indeterminacy. Rather, the

relevant point for purposes of the privilege is that the President’s decision here—whether lawful 

or not—could not be delegated to another executive branch official, and thus the opinion by 

definition spoke to “governmental operations that . . . call ultimately for direct decisionmaking 

by the President.” Sealed Case, 121 F.3d at 752.
14

An agency relying on attorney-client privilege to withhold a document under FOIA must 

show two things. First, that the document contains information communicated between an 

attorney and her client regarding “a legal matter for which the client has sought professional 

advice.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977).

Protect Democracy concedes that the outline meets this requirement. Pl.’s Cross-Mot. Summ. J.

at 16; see First Colborn Decl. ¶ 25. Second, that the communication “is based on confidential 

information provided by the client”—i.e., information that the client expected to remain

confidential and that was not actually shared with a third party. Mead Data, 566 F.2d at 254. 

Protect Democracy challenges application of the privilege on this second ground. It specifically 

contends that the government has offered “nothing more than conclusory assertions” that 

confidentiality was maintained. Pl.’s Cross-Mot. Summ. J. at 16. The Court disagrees.

Mr. Colborn explains in his declaration that information in the outline—being based on 

legal advice provided in the interagency legal memorandum discussed above—“was intended to 

be confidential and to [his] knowledge has maintained its confidentiality.” First Colborn Decl. 

¶ 25. The context of the document’s creation helps explain his expectation of confidentiality: 

“the outline was prepared by lawyers within OLC in preparation for providing legal advice to the 

Attorney General in connection with his role as chief legal adviser to the President.” Id. More 

specifically, the outline (at least in part) summarized legal advice that an interagency group of 

lawyers had given the President’s national security team the previous day—advice based on 

factual material provided to the lawyers by the President and his national security team—leading 

up to the strike. Id. ¶¶ 22, 25; see Second Decl. of Paul Colborn Supp. Defs.’ Mot. Summ. J. ¶ 3.

Protect Democracy is correct that, when invoking attorney-client privilege, the 

government cannot rely only on conclusory assertions that confidentiality was expected and 
15

maintained. See Mead Data, 566 F.2d at 255; Senate of the Com. of P.R. ex rel. Judiciary 

Comm. v. DOJ, 823 F.2d 574, (D.C. Cir. 1987) (“[W]here no factual support is provided for an 

essential element of the claimed privilege or shield, the label ‘conclusory’ is surely apt.”). But 

courts routinely endorse invocations of attorney-client privilege based on government 

declarations similar to Mr. Colborn’s—and, indeed, based on those of Colborn himself. See, 

e.g., N.Y. Times Co. v. DOJ, 282 F. Supp. 3d 234, 238–39 (D.D.C. 2017); Judicial Watch, 245 

F. Supp. 3d at 33–34. The case might be different if there were a basis in the record from which 

to infer that the contents of the outline were shared beyond the Attorney General, OLC, and the 

President and his national security staff (as the ultimate “client” for which the advice was 

intended). See, e.g., Mead Data, 566 F.2d at 255 (observing that “cryptic description” of 

withheld document “show[ed] that at least part of its information base was not confidential”). 

But there is no evidence that the specific legal advice provided in the memorandum and 

summarized in the outline was disclosed beyond that group. And, if anything, the sensitive 

nature of the legal advice demands the opposite inference. N.Y. Times, 282 F. Supp. 3d at 240 

(“Given its classified status, it seems unlikely the [withheld] Memo has been widely or 

indiscriminately circulated.”). 

At bottom, based on the government’s description of the document and its declarations, 

the Court finds that the outline is the sort of document that would routinely be protected by 

attorney-client privilege in civil discovery. Its disclosure would undermine the purpose of the 

privilege: “to assure that a client’s confidences to his or her attorney will be protected, and 

therefore encourage clients to be as open and honest as possible with attorneys.” Coastal 
16

States, 617 F.2d at 862. The agencies were permitted to withhold the outline pursuant to 

Exemption 5.6

C. Talking Points

The final category of withheld materials consists of several sets of talking points 

designed to assist Executive Branch officials in responding to inquiries from the press and from 

Congress. The documents have some differences—particularly in their format—but share a 

similar character. Those numbered 5, 6, 7, 9, 10, 12, and 13 in the Vaughn index are versions of 

a “press guidance” document containing “proposed guidance and a hypothetical question and 

proposed response.” Document 8 is described as a “Public Affairs Guidance” containing similar 

advice for high-level officials. Documents 14 and 15 consist of proposed answers to expected 

questions from Congress. 

The government asserts that each of these documents is protected by the deliberative 

process privilege and therefore properly withheld under Exemption 5. Deliberative process 

privilege “covers ‘documents reflecting advisory opinions, recommendations and deliberations 

comprising part of a process by which governmental decisions and policies are formulated.’” 

Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (quoting Sears, 

421 U.S. at 150). To establish that a document is covered by the privilege, the government must 

show that it is both “predecisional” and “deliberative.” Coastal States, 617 F.2d at 866. A 

predecisional communication is one that “occurred before any final agency decision on the 

relevant matter.” Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014). A deliberative 

 6 Protect Democracy raises the same argument regarding official acknowledgement for 

the OLC outline as it did for the interagency legal memorandum. For the same reason that the 

Court rejected its official-acknowledgement argument for the memorandum, it also does so for 

the outline. None of the public statements that Protect Democracy cites mention the outline, nor 

do they plausibly match its substance.
17

communication is one that “reflects the give-and-take of the consultative process.” Coastal 

States, 617 F.2d at 866. 

Protect Democracy’s main argument is that, because the guidance documents were 

created after the missile strike, they cannot have been predecisional or deliberative. This

argument has an intuitive ring, as “communications made after [a] decision and designed to

explain it” are generally not covered by the deliberative process privilege. Sears, 421 U.S. at 

152. But courts have generally found that documents created in anticipation of press inquiries 

are protected even if crafted after the underlying event about which the press might inquire. 

Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 187–88 (D.D.C. 2017); Freedom Watch, 

Inc. v. NSA, 49 F. Supp. 3d 1, 8 (D.D.C. 2014); Judicial Watch, Inc. v. Dep’t of Comm., 337 F. 

Supp. 2d 146, 174 (D.D.C. 2004). The idea is that these sorts of documents reflect deliberation 

about the decision of how to respond to the press—or, as relevant in this case, to members of 

Congress. 

That is true of the talking-point documents here. Having reviewed all of them in camera, 

the Court concludes that they qualify as predecisional and deliberative. Revealing their contents 

would expose the process by which agency officials crafted a strategy for responding to the press 

and to Congress. Even if many of the documents summarize and collate facts rather than 

propose conclusions, “[t]he decision to include or exclude certain factual information in or from 

analytical documents is itself an important part of the deliberative process.” Decl. of Daniel R. 

Castellano Supp. Defs.’ Mot. Summ. J. ¶ 38; see Mead Data, 566 F.2d at 256 (“In some 

circumstances, . . . the disclosure of even purely factual material may so expose the deliberative 

process within an agency that it must be deemed exempted by [Exemption 5].”).
18

As it did with the other categories of documents, however, Protect Democracy contends 

that even if these documents are privileged, the government has officially acknowledged or 

waived privilege over their contents through public statements. See Coastal States, 617 F.2d at 

866 (“[E]ven if [a] document is predecisional at the time it is prepared, it can lose that status if it 

is adopted, formally or informally, as the agency position on an issue or is used by the agency in 

its dealings with the public.”). The Court upon reviewing the parties’ motions for summary 

judgment found this argument plausible with respect to the talking-point documents and has now 

reviewed all of those documents in camera. Based on that review, it finds that most of their 

content has not been officially acknowledged, nor has the deliberative process privilege been 

otherwise waived.

With one exception. At least one government official has, in an on-the-record statement, 

replicated a paragraph that appears in several of the guidance documents.

7

 Even though the 

agencies’ formulation of this explanatory paragraph would otherwise be protected by 

deliberative process privilege and thus covered by Exemption 5, the government’s official 

acknowledgement renders the exemption inapplicable. See Fitzgibbon, 911 F.2d at 765

(“[W]hen information has been ‘officially acknowledged,’ its disclosure may be compelled even 

over an agency’s otherwise valid exemption claim.”); Sealed Case, 121 F.3d at 741 (“[R]elease 

of a document only waives . . . privileges for . . . information specifically released, and not for 

related materials.”). The government must release the portions of the talking-point documents

 7 The Court cannot get more specific at this juncture; identifying the relevant material in 

this opinion would effectively deprive the government of a chance to appeal this ruling. If the 

government is not able to identify which portion of the guidance documents must be disclosed, 

the Court can do so ex parte.
19

that contain this paragraph, as they are reasonably segregable from the remainder of each 

document.

8

IV. Conclusion

The Court concludes that the legal memorandum (documents 1 through 3 in the Vaughn

index) was properly withheld under FOIA Exemption 5 because it would routinely be covered by 

the presidential communications privilege. The OLC outline (document 4) was properly 

withheld under that exemption because it is protected by attorney-client privilege. As for the 

press guidance documents (documents 5 through 15), the Court finds that the documents were 

properly withheld as a general matter, but that certain of their contents have been disclosed to the 

public and thus must be released to Protect Democracy.

The Court will therefore grant in part and deny in part both parties’ cross-motions for 

summary judgment. A separate order accompanies this memorandum opinion.

 

CHRISTOPHER R. COOPER

United States District Judge

Date: August 21, 2018

 8 Protect Democracy contends that more information was officially acknowledged 

through the publication of a document called “Basis for Using Force” on a national security blog. 

See Marty Lederman, (Apparent) Administration Justifications for Legality of Strikes Against 

Syria, Take Care (Apr. 8, 2017) (reproduced in Pl.’s Mot. Summ. J. Ex. I). There is no evidence, 

however, that this document was “made public through an official and documented disclosure,” 

as would be required for it to force disclosure of any duplicative information withheld under 

Exemption 5. ACLU v. DOD, 628 F.3d at 621 (emphasis added). Rather, all signs point to its 

publication being the result of “an anonymous leak,” which “is presumptively an unofficial and 

unsanctioned act.” Judicial Watch, Inc. v. DOJ, 898 F. Supp. 2d 93, 108 (D.D.C. 2012); see

Lederman, supra (“The following document has begun to circulate outside the government. . . . 

I have not confirmed, however, whether it is a final, approved draft, who its authors are, and/or 

whether it will receive a more formal distribution.”).