UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________ 

 ) 

JUDICIAL WATCH, INC., ) 

 ) 

Plaintiff, ) 

) Case No. 1:12-CV-00931 (EGS) 

v. ) 

 ) 

CONSUMER FINANCIAL ) 

PROTECTION BUREAU ) 

 ) 

Defendant. ) 

________________________________) 

MEMORANDUM OPINION

 This Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et 

seq., case is before the Court on cross motions for summary 

judgment. At issue is the Consumer Financial Protection 

Bureau’s (“CFPB” or the “Bureau”) response to plaintiff Judicial 

Watch, Inc.’s requests for documents relating to the appointment 

of Richard Cordray as director of the CFPB. Upon consideration 

of the motions, the responses and replies thereto, the entire 

record, and for the reasons explained below, defendant’s motion 

will be GRANTED IN PART AND DENIED IN PART, and plaintiff’s 

cross motion will be GRANTED IN PART AND DENIED IN PART.1

                                                            

1

 Plaintiff requests a hearing on its cross motion. After 

reviewing the parties’ pleadings, the Court is satisfied that a 

hearing is not necessary to resolve the pending motions. 

Accordingly, the request is denied. 
2 

I. FACTUAL BACKGROUND

Plaintiff is a non-profit, educational foundation which 

regularly requests access to the public records of government 

entities and disseminates its findings to the public. Compl. ¶ 

3. On January 12, 2012, plaintiff submitted a FOIA request to 

CFPB, seeking all records of communications between the CFPB and 

various entities concerning President Obama’s visit to the CFPB 

and his recess appointment of Richard Cordray as director of the 

CFPB. Declaration of Brett Kitt (“Kitt Decl.”) Exh. A. The 

January 12 request was assigned a FOIA tracking number. Id. ¶ 

3. On January 25, 2012, plaintiff submitted another FOIA 

request to CFPB, seeking all records of communications 

concerning Mr. Cordray’s appointment as director of the CFPB and 

any documentation reflecting travel and lodging for Mr. Cordray, 

his family, and any additional guests. Id. Exh. B. The January 

25 request was also assigned a FOIA tracking number. Id. ¶ 4. 

On January 27, 2012 and January 30, 2012, CFPB sent letters 

to plaintiff formally acknowledging the receipt of the 

requests. Id. Exhs. C, D. On March 30, 2012, CFPB issued an 

interim response to plaintiff’s January 25 FOIA request, 

explaining that the Bureau’s initial search for the requested 

documents produced 269 pages, that the Bureau would partially 

release 220 pages, and that the Bureau would claim FOIA 

Exemptions 5 and 6 for the remaining 49 pages. Id. Exh. F. 
3 

With this response, CFPB partially released 220 pages of 

responsive material. Id. In April 2012, there were additional 

communications between the parties regarding the status of 

CFPB’s determinations on the pending FOIA requests. Id. Exhs. 

G, H. On June 7, 2012, CFPB informed plaintiff by telephone and 

by e-mail that the Bureau intended to issue its determination 

shortly. Id. Exh. I. On the same day, plaintiff brought this 

action alleging that CFPB failed to comply with the relevant 

timelines set forth in 5 U.S.C. § 552(a)(6)(A) with respect to 

both of its requests. See generally Compl. On June 8, 2012, 

CFPB issued its determination as to both of plaintiff’s FOIA 

requests. Kidd Decl. Exhs. J, K. With this response, CFPB 

partially released an additional 12 pages of responsive material 

and withheld an additional 3 pages under FOIA Exemptions 5 and 

6. Id. The response letters also informed plaintiff of the 

right to administratively appeal the Bureau’s determination. 

Id. 

Subsequently, while this litigation was pending, the CFFB 

conducted another search for records responsive to both FOIA 

requests. Kidd Decl. Exh. L. On September 28, 2012 it released 

a supplemental production to plaintiff consisting of 17 pages of 

responsive records released in full and 8 pages released in 

part. Id. Eight hundred eighty pages were withheld in full. 

Id. While preparing its Vaughn index, the Bureau identified a 
4 

small amount of previously withheld material which it later 

determined could be partially released. Id. Exh. N. It 

released those records to plaintiff. Id.

 On November 9, 2012, the Bureau moved for summary judgment, 

claiming that plaintiff did not exhaust its administrative 

remedies. Def.’s Mot for Summ. J. at 8-15. The Bureau also 

argues that its search was adequate and that all of the material 

it did not release was properly withheld. See generally Id. On 

January 18, 2013, the plaintiff filed a cross motion for summary 

judgment. Plaintiff does not challenge the adequacy of the 

search, nor does it challenge “the majority of CFPB’s withheld 

documents.” Pl.’s Combined Cross Mot. for Summ J./Opp’n to 

Def.’s Mot. Summ. J. (“Pl.’s Combined Cross Mot./Opp’n”) at 1. 

Plaintiff argues that it exhausted its administrative remedies, 

and further argues that the Bureau improperly invoked Exemption 

5 for several records. Id. at 2. The motions are now ripe for 

the Court’s decision. 

II. STANDARD OF REVIEW 

A. Summary Judgment in a FOIA Case 

Summary judgment is granted when there is no genuine issue 

of material fact and the movant is entitled to judgment as a 

matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. 

Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of 

Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining 
5 

whether a genuine issue of fact exists, the court must view all 

facts in the light most favorable to the non-moving party. See 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

587 (1986). Under FOIA, all underlying facts and inferences are 

analyzed in the light most favorable to the FOIA requester; as 

such, only after an agency proves that it has fully discharged 

its FOIA obligations is summary judgment appropriate. Moore v. 

Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v. 

U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). 

FOIA cases are typically and appropriately decided on motions 

for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. 

of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 

(D.D.C. 2011) (citations omitted). 

In reviewing a motion for summary judgment under the FOIA, 

the court must conduct a de novo review of the record. See 5 

U.S.C. § 552(a)(4)(B) (2012). The court may award summary 

judgment solely on the basis of information provided by the 

department or agency in affidavits or declarations that describe 

“the documents and the justifications for nondisclosure with 

reasonably specific detail, demonstrate that the information 

withheld logically falls within the claimed exemption, and are 

not controverted by either contrary evidence in the record nor 

by evidence of agency bad faith.” Military Audit Project v. 

Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. 
6 

Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 

U.S. 977 (1974). Agency affidavits or declarations must be 

“relatively detailed and non-conclusory.” SafeCard Services v. 

SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or 

declarations are accorded “a presumption of good faith, which 

cannot be rebutted by purely speculative claims about the 

existence and discoverability of other documents.” Id. (internal 

citation and quotation omitted). 

III. DISCUSSION 

A. Exhaustion of Administrative Remedies

“Exhaustion of administrative remedies is generally 

required before filing suit in federal court so that the agency 

has an opportunity to exercise its discretion and expertise on 

the matter and to make a factual record to support its 

decision.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 61 

(D.C. Cir. 1990) (citing McKart v. United States, 395 U.S. 185, 

194 (1969)). In the FOIA context, this exhaustion requirement 

is triggered when an agency issues a response to a FOIA request 

within the relevant statutory timelines – within 20 working days 

of receiving the FOIA request, or within 30 working days in 

“unusual circumstances.” 5 U.S.C. § 552(a)(6)(A)(i), 

(a)(6)(B)(i). To trigger the exhaustion requirement, the agency 

must at least: 
7 

(i) [G]ather and review the documents; (ii) determine and 

communicate the scope of the documents it intends to 

produce and withhold, and the reasons for withholding any 

documents; and (iii) inform the requester that it can 

appeal whatever portion of the “determination” is adverse. 

Citizens for Responsibility and Ethics in Washington (“CREW”) v. 

FEC, 711 F.3d 180, 188 (D.C. Cir. 2013); see also 5 U.S.C. 

§ 552(a)(6)(A)(i) (providing that the response must include the 

agency’s “determination” on whether to comply with the request 

and “the reasons therefor,” and notice of the requester’s right 

to appeal any adverse determination). An agency response that 

does not include all the necessary components may be deemed 

insufficient to trigger the exhaustion requirement. See CREW, 

711 F.3d at 188 (stating that more than “an initial statement 

that the agency will generally comply with a FOIA request and 

will produce non-exempt documents and claim exemptions in the 

future” is required); Oglesby, 920 F.2d at 67 (finding that an 

agency response that does not provide notice of FOIA requester’s 

right to appeal was insufficient to trigger the exhaustion 

requirement). 

Where the agency fails to issue a determination sufficient 

to trigger the exhaustion requirement within the statutory 

timelines, the FOIA requester is deemed to have exhausted 

administrative remedies. 5 U.S.C. § 552(a)(6)(C)(i). However, 

if the agency cures its failure to timely respond before the 

requester files suit, the constructive exhaustion provision does 
8 

not apply and the requester must first administratively appeal 

any adverse determination. Oglesby, 920 F.2d at 63-64. Thus, 

to determine whether plaintiff must satisfy the exhaustion 

requirement in the instant case, it is necessary to determine 

whether CFPB has issued its determination within the relevant 

time period, or at least before plaintiff filed suit. 

Plaintiff, in its Notice of Supplemental Authority, cites 

to the D.C. Circuit’s decision in CREW to support its argument 

that CFPB’s acknowledgement letters on January 27 and January 

30, and CFPB’s interim response letter on March 20 cannot 

trigger the administrative exhaustion requirement because the 

Bureau failed to notify plaintiff of the right to appeal. Pl.’s 

Notice of Supp. Auth. at 2. CFPB does not attempt to refute 

plaintiff’s arguments. The Court agrees with plaintiff that 

CFPB’s letters issued prior to the initiation of this case are 

insufficient to trigger the exhaustion requirement for this 

reason. CFPB only provided plaintiff with the notice of the 

right to appeal in its June 8 letter. However, because this 

letter was issued after plaintiff initiated this lawsuit, it 

cannot be used to cure CFPB’s failure to timely respond to FOIA 

requests. Thus, the Court finds that CFPB failed to issue its 

determination within the statutory time period or before 

plaintiff brought this action, and that plaintiff has therefore 

constructively exhausted its administrative remedies. 
9 

B. Exemption 5 

Exemption 5 permits an agency to withhold documents such as 

“inter-agency or intra-agency memorandums or letters which would 

not be available by law to a party . . . in litigation with the 

agency.” 5 U.S.C. § 552(b)(5). Judicial Watch challenges 

CFPB’s withholding of certain records based on the deliberative 

process, attorney-client, attorney work product, and the 

presidential communications privileges. 

 The deliberative process privilege “rests on the obvious 

realization that officials will not communicate candidly among 

themselves if each remark is a potential item of discovery and 

front page news, and its object is to enhance the quality of 

agency decisions by protecting open and frank discussion among 

those who make them within the government.” DOI v. Klamath 

Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001) (citations 

omitted). To qualify for withholding under the deliberative 

process privilege, the withheld material must be both 

predecisional and deliberative. “A document is predecisional if 

it was prepared in order to assist an agency decisionmaker in 

arriving at his decision, rather than to support a decision 

already made. Material is deliberative if it reflects the giveand-take of the consultative process.” Petroleum Info Corp. v. 

Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) 

(citations and quotation marks omitted). 
10 

 The attorney client privilege is meant “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 States Gas Corp. v. Dep’t of 

Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). The privilege “is 

not limited to communications made in the context of litigation 

or even a specific dispute, but extends to all situations in 

which an attorney’s counsel is sought on a legal matter.” Id. 

The attorney work product privilege, by contrast, is “limited to 

documents prepared in contemplation of litigation.” Id. at 864. 

While obviously related, the privileges have different goals: 

“the attorney client privilege exists to protect confidential 

communications,” while the work product privilege “promote[s] 

the adversary system by safeguarding the fruits of an attorney's 

trial preparations.” United States v. AT&T Co., 642 F.2d 1285, 

1299 (D.C. Cir. 1980). 

 The purpose of the presidential communications privilege is 

to “guarantee the candor of presidential advisers and to provide 

‘[a] President and those who assist him . . . [with] freedom to 

explore alternatives in the process of shaping policies and 

making decisions and to do so in a way many would be unwilling 

to express except privately.” In re Sealed Case, 121 F.3d 729, 

743 (D.C. Cir. 1997) (quoting U.S. v. Nixon, 418 U.S. 683, 708 

(1974)). “This privilege extends to communications authored or 
11 

received in response to a solicitation by members of a 

presidential adviser’s staff, since in many instances advisers 

must rely on their staff to investigate and issue and formulate 

the advice to be given to the President.” ACLU v. DOJ, Case No. 

10-123, 2011 U.S. Dist. LEXIS 156267, *30 (D.D.C. Feb. 14, 2011) 

(citing In re Sealed Case, 121 F.3d at 752). 

1. Deliberative Process Privilege 

Judicial Watch challenges the CFPB’s withholding of two 

records for which the Bureau cites only the deliberative process 

privilege as grounds for the withholding. The Court addresses 

each in turn. 

a. Briefing Materials 

Plaintiff challenges the CFPB’s withholding of two emails 

within a chain dated December 6, 2011, which discuss draft 

briefing materials for the Deputy Secretary of the Treasury. 

Pl.’s Combined Cross Mot./Opp’n at 10-11; Def.’s Vaughn Index at 

78-79, Bates 1149-1172. Plaintiff argues that the attachment to 

those two emails is labeled “final.dox,” which indicates that 

the document is a final document, not a draft, and is therefore 

not predecisional. Id. at 11. The CFPB responds that “even 

final versions of briefing materials are predecisional and 

subject to the deliberative process agency actions or propose 

talking points for agency officials to incorporate into their 

presentations or question-and-answer-sessions.” Def.’s Opp’n to 
12 

Cross Motion/Reply in Support of Summ. J. Mot. at 9-10 (“Def.’s 

Combined Opp’n/Reply”). The CFPB points out that the full name 

of the attachment is “CFPB - TFG QA – fall 2011 – final.dox.” 

Id. at 11; Vaughn Index at 78-79. Defendant explains that TFG 

stands for then Treasury Secretary Timothy Geithner and QA 

stands for question and answer regarding the CFPB. Id. The 

document therefore “reflect[s] potential or suggested responses 

to a range of questions that Treasury may receive regarding the 

Bureau, which may or may not reflect [Treasury’s] ultimate 

public statement or position.” Id. 

The Court finds the Bureau has carried its burden to prove 

the applicability of its claimed exemption. Internal 

communications regarding how to respond to media and 

Congressional inquiries have repeatedly been held to be 

protected under the deliberative process privilege. Judicial 

Watch, Inc. v. U.S. Dep’t of the Treasury, 796 F. Supp. 2d 13, 

31 (D.D.C. 2011); Judicial Watch, Inc. v. U.S. Dep’t of Homeland 

Sec., 736 F. Supp. 2d 202, 208 (D.D.C. 2010); Judicial Watch, 

Inc. v. U.S. Dep’t of Commerce, 337 F. Supp. 2d 146, 174 (D.D.C. 

2004). The CFPB’s declaration and Vaughn index indicate that 

the withheld documents contain talking points and briefing 

materials, including recommendations for how to answer questions 

about the CFPB, that were prepared by Bureau employees for the 

consideration of decision makers at Treasury. Judicial Watch’s 
13 

selective quoting of name of the attachment listed in the Vaughn

index does not convince the Court otherwise. 

b. Email Between White House Official and CFPB 

The second document challenged by plaintiff is an email 

from Nicole Isaac, a White House staffer, to CFPB employee Lisa 

Konwinski. Vaughn Index at 12 (Bates 390-91). It is titled 

“HJC February 15th on Cordray,” and the Bureau claims it is 

subject to the deliberative process privilege because it 

constitutes “a request of the White House for advice regarding a 

Congressional hearing and [to] discuss suggestions for 

responding to that request.” Id. Judicial Watch argues that it 

is not subject to the privilege because under FOIA, the 

deliberative process privilege is limited to “inter-agency or 

intra-agency” records, 5 U.S.C. § 552(b)(5), and “[g]enerally, 

the White House staff is not considered to be an agency for 

purposes of FOIA.” Pl.’s Combined Cross Mot./Opp’n at 9-10. 

The Bureau concedes that the White House is not an agency for 

the purposes of FOIA, but argues that Exemption 5 nevertheless 

applies to communications between agencies and the White House 

that would otherwise be privileged in civil discovery. Def.’s 

Combined Opp’n/Reply at 13-14. 

The Court agrees with plaintiff that the Bureau has not 

demonstrated this document should be withheld under Exemption 5. 
14 

The FOIA directs that “each agency, upon any request for records 

. . ., shall make the records promptly available to any person” 

for “public inspection and copying,” unless the records fall 

within one of the exclusive statutory exemptions. See 5 U.S.C. 

§§ 552(a)(2) & (a)(3)(A). The protections of FOIA, however, do 

not apply to all employees working in the White House. 

“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.” Judicial Watch Inc. v DOJ, 365 F.3d 1108, 

1109, n.1 (D.C. Cir. 2004) (citations omitted). 

The cases cited by the Bureau do not support its claim that 

the deliberative process privilege is available to employees in 

the Office of the President in FOIA litigation. The first case 

CFPB cites, CREW v. Dep’t of Homeland Security, Case 06-173, 

2008 U.S. Dist. LEXIS 57442 (D.D.C. July 22, 2008) concerns 

Exemption 5’s presidential communications privilege, not its 

deliberative process privilege. Unlike the deliberative process 

privilege, “there is [available in FOIA litigation] . . . 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.” Judicial Watch, 365 F.2d at 1112. The other case cited 

by Defendant, Judicial Watch, Inc. v. Dep’t of Energy, 412 F.3d 

125 (D.C. Cir. 2005), is likewise not helpful to the Bureau 
15 

because it involved a committee within the Executive Office of 

the President, which is subject to the FOIA and can therefore 

assert the deliberative process privilege. Id., see also In re: 

Cheney, 406 F.3d 723, 725 (D.C. Cir. 2005). 

Accordingly, because FOIA’s deliberative process privilege 

applies to certain employees working in the White House but not 

to all, the application of the privilege hinges on what capacity 

in the White House Ms. Isaac worked, and for what office. The 

Bureau’s declaration and Vaughn index do not provide this 

information. Thus the Court cannot conclude that the 

deliberative process privilege is properly invoked, and will 

therefore deny the Bureau’s motion for summary judgment with 

respect to the records in Bates Range 390-391. CFPB must either 

disclose the record withheld or, in the alternative, indicate in 

sufficient detail why withholding is proper. 

2. Attorney Client and Attorney Work Product Privilege: 

Communications with Department of Justice 

Plaintiff challenges the Bureau’s withholding of four 

communications between employees at the Bureau and attorneys at 

the Department of Justice.2

 See Pl.’s Combined Cross Mot./Opp’n 

                                                            

2

 Plaintiff also challenged the withholding of an email exchange 

between the CFPB and the Treasury pursuant to the attorney 

client and work product privileges. Pl.’s Combined Cross 

Mot./Opp’n at 11-12, Vaughn Index at 77-78 (Bates 1135-48). The 

Bureau subsequently released the document to the plaintiff. 

Def.’s Combined Opp’n/Reply at 12, n.5. Accordingly, it is no 

longer a subject of dispute between the parties. 
16 

at 12. These communications took place on January 12, 19 and 

27, 2012. Id.; see also Vaughn Index at 9 (Bates 339-382), 16 

(Bates 423), 28 (Bates 578-79), 30 (Bates 658), 31 (Bates 666-

69). Plaintiff argues that the Bureau has not demonstrated the 

attorney client privilege applies because it has not 

specifically established the lawyer client relationship. Id. 

Plaintiff also argues the CFPB has not met its burden to show 

the work product doctrine applies because it has not shown the 

DOJ lawyers were working “in the capacity of [the CFPB’s] 

attorney[s] . . . for any specific litigation.” Id. at 12. 

CFPB responds that all of these emails concern anticipated 

litigation challenging President Obama’s January 4, 2012 recess 

appointment of Director Cordray. Def.’s Mot. at 21-32; Kitt 

Decl. ¶ 26-27 (explaining that Department of Justice attorneys 

are authorized to represent the Bureau in litigation, and that 

the communications occurred “for the purpose of defending the 

CFPB in litigation challenging the recess appointment of the 

Director.”). The government argues that litigation over 

Director Cordray’s recess appointment was reasonably foreseeable 

in light of immediate litigation challenging other Presidential 

recess appointments made on the same day as Director Cordray’s. 

Def.’s Mot. at 2-3, 23-34; Def.’s Combined Opp’n/Reply at 12-13. 

In assessing whether the proponent has carried its burden 

to show a document is protected as work-product, the relevant 
17 

inquiry is “whether, in light of the nature of the document and 

the factual situation in the particular case, the document can 

fairly be said to have been prepared . . . because of the 

prospect of litigation.” EEOC v. Lutheran Soc. Servs., 186 F.3d 

959, 968 (D.C. Cir. 1999). Although an agency need not have a 

specific claim in mind when preparing the documents, there must 

exist some articulable claim that is likely to lead to 

litigation in order to qualify the documents as attorney workproduct. Coastal States Gas Corp., 617 F.2d at 865; Am. 

Immigration Council v. Dep’t of Homeland Security, 905 F. Supp. 

2d 206, 221 (D.D.C. 2012) (work product encompasses documents 

prepared for litigation that is “foreseeable,” if not 

necessarily imminent; “documents that . . . advise the agency of 

the types of legal challenges likely to be mounted to a proposed 

program, potential defenses available to the agency, and the 

likely outcome,” are covered). 

In this case, the CFPB’s affidavit and Vaughn index 

consistently demonstrate that the documents were prepared in 

reasonable anticipation of litigation challenging the 

appointment of Director Cordray. It is a matter of public 

record that the legality of the appointment was immediately 

questioned by some members of Congress, and the recess 

appointments of three members of the National Labor Relations 

Board made on the same day as Director Cordray’s were the 
18 

subject of litigation in this court within two weeks thereafter. 

Def.’s Mot. at 3. The emails at issue here were written within 

one to four weeks following the recess appointment; they involve 

the Justice Department attorneys authorized to represent the 

Bureau in litigation; and they are described in the Vaughn index 

as containing advice and analysis regarding potential legal 

challenges to the appointment. Kitt Decl. ¶¶ 25-27, Vaughn 

Index at 9 (Bates 339-382), 16 (Bates 423), 28 (Bates 578-79), 

30 (Bates 658), 31 (Bates 666-69). Accordingly, the records 

fall within the attorney work product privilege. As a result, 

the court does not reach the question whether they are also 

protected by the attorney-client privilege.3

3. Presidential Communications Privilege 

Finally, Judicial Watch challenges the Bureau’s 

withholding, under the presidential communications privilege, of 

two email exchanges between White House counsel and CFPB 

employees.4

 Pl.’s Combined Cross Mot./Opp’n at 14-16; see also 

                                                            

3

 The CFPB asserts an additional basis for withholding one of the 

emails in a chain dated January 12, 2012, identified at Bates 

666-669; and the January 19, 2012 email, identified at Bates 

423, claiming they are exempt under the deliberative process 

privilege. See Vaughn Index at 16, 31-32. Notably, Plaintiff 

does not challenge the withholding under the deliberative 

process privilege. 

4

 The Bureau asserts other bases for withholding the documents as 

well, see Vaughn index at 4 (Bates 281-82); 49 (Bates 834); 

however, because the court finds they are properly withheld 

under the presidential communications privilege, the court does 

not reach these additional asserted bases for withholding. 
19 

Vaughn Index at 4 (Bates 281-82); 49 (Bates 384). Plaintiff 

claims that the presidential communications privilege “does not 

protect the communications between the President or his advisors 

and the staff of Federal agencies; it protects confidential 

communications between the President’s advisors, or between the 

President and his advisors.” Pl.’s Combined Cross Mot./Opp’n at 

16. This is not the law of this Circuit. In In re Sealed Case, 

121 F.3d 729, the circuit considered the question “How far down 

the line does the presidential communications privilege go?” 

Id. at 746, and concluded it does not stop at communications 

between his immediate advisers. 

Given the need to provide sufficient elbow room for 

advisers to obtain information from all knowledgeable 

sources, the privilege must apply both to communications 

which these advisers solicited and received from others as 

well as those they authored themselves. The privilege must 

also extend to communications authored or received in 

response to a solicitation by members of a presidential 

adviser's staff, since in many instances advisers must rely 

on their staff to investigate an issue and formulate the 

advice to be given to the President. 

Id. at 752 (emphasis added).5

 In this case, it is undisputed 

that the withheld communications were either to or from 

                                                                                                                                                                                               

5

 The Circuit goes on to state that the privilege should not 

extend to staff in agencies outside the White House who may be 

providing advice on a matter which may ultimately become one for 

presidential decisionmaking. Id. However, read within context 

of the entire passage, it is clear that this refers to agency 

communications which do not involve the president’s advisers at 

all, but rather are only between and among agency personnel. 

Id.; see also Judicial Watch Inc. v. DOJ, 365 F.3d at 1114-15, 
20 

“important, senior members of the President’s staff,” Pl.’s 

Reply at 3, who were involved in advising the President on his 

appointment powers generally and Director Cordray’s appointment 

specifically. Decl. of Edward N. Siskel ¶¶ 6 a, b. It is 

further undisputed that the withheld communications related to 

the President’s appointment of Director Cordray, and they 

occurred before and immediately after the appointment. Vaughn 

Index at 4 (Bates 281-82); 49 (Bates 834). Communications 

generated in the course of advising the President in the 

exercise of his appointment and removal power are clearly 

protected by the presidential communications privilege. The 

appointment and removal power are “a quintessential and nondelegable Presidential power. . . . 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 communications 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. The Court therefore concludes that summary judgment 

                                                                                                                                                                                               

1121 (declining to extend presidential communications privilege 

to documents prepared and circulated only within the Justice 

Department, and explaining that in these circumstances, “the 

ultimate goal of protecting the President’s . . . 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.”). 
21 

should be granted to the Bureau with respect to the withholding 

of these documents. 

C. Segregability 

Under FOIA, “[i]f a document contains exempt information, 

the agency must still release any reasonably segregable portion 

after deletion of the nondisclosable portions.” Oglesby v. U.S. 

Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). Though 

not specifically raised by Judicial Watch, the Court has an 

“affirmative duty to consider the segregability issue sua 

sponte.” Trans-Pacific Policing Agreement v. U.S. Customs 

Serv., 177 F.3d 1022, 28 (D.C. Cir. 1999). The reviewing court 

may rely on the description of the withheld records set forth in 

the Vaughn index and the agency’s declaration that it released 

all segregable information. Loving v. U.S. Dep’t of Def., 550 

F.3d 32, 41 (D.C. Cir. 2008). In this case, particularly in the 

absence of any contrary argument by Judicial Watch, the Court 

finds that the Bureau’s Vaughn index and declaration satisfy its 

segregabilty burden. Kitt Decl. ¶¶ 17-18; see also Vaughn 

index. 

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion for summary 

judgment is GRANTED IN PART AND DENIED IN PART. The motion is 

DENIED with respect to the Defendant’s claim that plaintiff 

failed to exhaust, and is further DENIED with respect to the 
22 

Defendant’s decision to withhold the email from Nicole Isaac to 

Lisa Konwinski. Vaughn Index 12 (Bates 390-91). In all other 

respects, Defendant’s motion is GRANTED. Plaintiff’s cross 

motion for summary judgment is GRANTED with respect to 

exhaustion and the Isaac/Konwinski email; in all other respects, 

Plaintiff’s motion is DENIED. An appropriate order accompanies 

this memorandum opinion. 

SIGNED: Emmet G. Sullivan 

 United States District Judge 

 September 30, 2013 

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