1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT, 

INC.,

Plaintiff,

v.

U.S. NATIONAL SECURITY AGENCY,

Defendant.

Civil Action No. 17-1000 (CKK)

MEMORANDUM OPINION

(March 23, 2020)

This lawsuit arises from a Freedom of Information Act (“FOIA”) request that Plaintiff The 

Protect Democracy Project, Inc. (the “Project”) made to Defendant United States National Security 

Agency (“NSA”) in 2017. Pending before the Court are Defendant’s Motion for Summary 

Judgment, ECF No. 34, and Plaintiff’s Cross-Motion for Summary Judgment, ECF No. 35. 

NSA has withheld a responsive document referred to as the Ledgett Memorandum, which 

was drafted by Rick Ledgett, the former Deputy Director of the NSA. NSA primarily argues that 

the Ledgett Memorandum was appropriately withheld under FOIA Exemption 5 because it is 

protected by the presidential communications privilege. It further argues that FOIA Exemptions 

1, 3, and 6 also justify withholding specific portions of the Memorandum. In response, the Project 

argues that the presidential communications privilege does not extend to the Ledgett Memorandum 

and, moreover, that NSA has officially disclosed the information requested here. The Project also 

contests NSA’s withholding of information under Exemptions 1, 3, and 6. 

The Court agrees with NSA that the Ledgett Memorandum was appropriately withheld 

under FOIA Exemption 5. The Court has further determined, after in camera review of the Ledgett 

Memorandum, that the information officially disclosed to the public does not satisfy the strict test 
2

for official acknowledgement or disclosure. Accordingly, upon consideration of the briefing,1 the 

relevant legal authorities, the withheld document, and the record as it currently stands, the Court 

GRANTS NSA’s Motion for Summary Judgment and DENIES the Project’s Cross-Motion for 

Summary Judgment.

I. BACKGROUND

The Project first sent a FOIA request to NSA seeking several categories of documents 

relating to contacts between NSA and others relating to potential Russian involvement in the 2016 

national election. Pl.’s Stmt. ¶ 50; Def.’s Stmt. ¶ 1. In particular, one category of documents 

sought was:

All records, including but not limited to emails, notes, and memoranda, reflecting, 

discussing, or otherwise relating to communications between the National Security 

Agency and the Executive Office of the President regarding contacts between 

individuals connected with the Russian government and individuals connected with 

the Trump campaign or the Trump administration, and/or Russian involvement 

with, or attempts to influence or interfere with, the national election of November 

2016.

Pl.’s Stmt. ¶¶ 50–51; Def.’s Stmt. ¶ 1. 

 1 The Court’s consideration has focused on the following:

• Def.’s Mot. for Summ. J. and Def.’s Mem. of P. & A. in Supp. of Its Mot. for Summ. J.

(“Def.’s Mot.”), ECF No. 34; 

• Def.’s Stmt. of Material Facts as to Which There Is No Genuine Issue (“Def.’s Stmt.”), 

ECF No. 34;

• Decl. of Linda M. Kiyosaki (“Kiyosaki Decl.”), ECF No. 34-1;

• Pl.’s Opp’n to Def.’s Mot. for Summ. J. and Cross-Mot. for Summ. J. (“Pl.’s Mot.”), ECF 

No. 35;

• Pl.’s Stmt. of Undisputed Material Facts in Supp. of Mot. for Summ. J. (“Pl.’s Stmt.”), ECF 

No. 35-1; 

• Def.’s Reply in Supp. of Its Mot. for Summ. J. and Opp’n to Pl.’s Cross-Mot. for Summ. 

J. (“Def.’s Reply”), ECF No. 37;

• Decl. of Steven E. Thompson (“Thompson Decl.”), ECF No. 37-1; and

• Pl.’s Reply Brief in Supp. of Cross-Mot. for Summ. J. (“Pl.’s Reply”), ECF No. 39.

In an exercise of its discretion, the Court finds that holding oral argument would not be of 

assistance in rendering a decision. See LCvR 7(f). 
3

Plaintiff filed the instant lawsuit on May 24, 2017. Pl.’s Stmt. ¶ 52 (citing Compl, ECF 

No. 1); Def.’s Stmt. ¶ 4. Plaintiff amended its Complaint on August 7, 2017. Def.’s Stmt. ¶ 5; 

Pl.’s Stmt. ¶ 53. Plaintiff thereafter narrowed its request in early 2018 to “memoranda,” and any 

associated documents, that were “written by senior NSA officials” and “documenting a 

conversation between White House personnel, including the President, and NSA senior officials, 

including Adm. Rogers, in which the White House asked the NSA to publicly dispute any 

suggestion of collusion between Russia and the Trump campaign.” Def.’s Stmt. ¶¶ 8–9; Pl.’s 

Stmt.¶¶ 55–57. NSA provided a final response to this request on March 20, 2018, which included 

a Glomar response in which the agency declined to confirm or deny the existence of responsive 

records pursuant to FOIA Exemption 3. Def.’s Stmt. ¶ 9; Pl.’s Stmt. ¶¶ 57–59. The parties later 

briefed cross-motions for summary judgment relating to the Glomar response. Pl.’s Stmt. ¶¶ 60–

65; Def.’s Stmt. ¶ 10; see also ECF Nos. 23–28 (original summary judgment briefing). 

Before the Court could rule on those motions, however, the Department of Justice released 

a partially redacted report drafted by Special Counsel Robert Mueller (the “Mueller Report”). 

Def.’s Stmt. ¶¶ 11–12; Pl.’s Stmt. ¶ 66. Volume II of the Mueller Report described a document 

that appeared to be responsive to the Project’s Second Amended FOIA Request. Def.’s Stmt. ¶ 13; 

Pl.’s Stmt. ¶¶ 45–48. The relevant portion of the Report reads:

On March 26, 2017, the day after the President called [Director of National 

Intelligence Daniel] Coats, the President called NSA Director Admiral Michael 

Rogers. The President expressed frustration with the Russia investigation, saying 

that it made relations with the Russians difficult. The President told Rogers “the 

thing with the Russians [wa]s messing up” his ability to get things done with Russia. 

The President also said that the news stories linking him with Russia were not true 

and asked Rogers if he could do anything to refute the stories. Deputy Director of 

the NSA Richard Ledgett, who was present for the call, said it was the most unusual 

thing he had experienced in 40 years of government service. After the call 

concluded, Ledgett prepared a memorandum that he and Rogers both signed 

documenting the content of the conversation and the President’s request, and 

they placed the memorandum in a safe. But Rogers did not perceive the 
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President’s request to be an order, and the President did not ask Rogers to push 

back on the Russia investigation itself. Rogers later testified in a congressional 

hearing that as NSA Director he had “never been directed to do anything [he] 

believe[d] to be illegal, immoral, unethical or inappropriate” and did “not recall 

ever feeling pressured to do so.”

Report on the Investigation into Russian Interference in the 2016 Presidential Election, available 

at https://www.justice.gov/storage/report.pdf, at 268–69 (emphasis added) (footnotes omitted).2

 

Following the release of the Mueller Report, NSA withdrew its Glomar response. Def.’s 

Stmt. ¶ 16; Pl.’s Stmt. ¶ 68; Notice of Withdrawal of Glomar Response, ECF No. 31. NSA 

disclosed that it had located one responsive record that it had withheld under FOIA Exemption 5 

as well as FOIA Exemptions 1, 3, and 6. Pl.’s Stmt. ¶ 69 (citing Joint Status Report, ECF No. 32); 

Def.’s Stmt. ¶ 18 (citing same). The parties then submitted cross-motions for summary judgment 

with respect to NSA’s withholding of the Ledgett Memorandum. Upon review of the briefing and 

record, the Court previously determined in its March 6, 2020 Memorandum Opinion and 

accompanying Order, which it incorporates and makes a part of its opinion here, that in camera 

review was required for a responsible de novo determination on the claims of exemption. See Mar. 

6, 2020 Order, ECF No. 41; Mar. 6, 2020 Mem. Op., ECF No. 42. The Court has since reviewed 

the Ledgett Memorandum in camera. 

II. LEGAL STANDARD

Congress passed FOIA to “‘open[] up the workings of government to public scrutiny’ 

through the disclosure of government records.” Stern v. Fed. Bureau of Investigation, 737 F.2d 

84, 88 (D.C. Cir. 1984) (quoting McGehee v. Cent. Intelligence Agency, 697 F.2d 1095, 1108 (D.C. 

Cir. 1983)). Congress, however, also recognized “that there are some government records for 

 2 The page numbers referenced here are the page numbers of the entire report, which is in Portable 

Document Format (“PDF”) and is not consecutively paginated. This quotation is found on pages 

56–57 of Volume II.
5

which public disclosure would be so intrusive—either to private parties or to certain important 

government functions—that FOIA disclosure would be inappropriate.” Id. To that end, FOIA 

“mandates that an agency disclose records on request, unless they fall within one of nine 

exemptions.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011). Despite these exemptions, 

“disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Air Force v. Rose, 

425 U.S. 352, 361 (1976). The exemptions are therefore “‘explicitly made exclusive’ and must be 

‘narrowly construed.’” Milner, 562 U.S. at 565 (citations omitted) (quoting Envtl. Prot. Agency 

v. Mink, 410 U.S. 73, 79 (1973); Fed. Bureau of Investigation v. Abramson, 456 U.S. 615, 630 

(1982)).

When presented with a motion for summary judgment in this context, the court must 

conduct a de novo review of the record. 5 U.S.C. § 552(a)(4)(B). This requires the court to 

“ascertain whether the agency has sustained its burden of demonstrating the documents requested 

are . . . exempt from disclosure under the FOIA.” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 

1224, 1227 (D.C. Cir. 2008) (internal quotation marks omitted). “An agency may sustain its 

burden by means of affidavits, but only ‘if they contain reasonable specificity of detail rather than 

merely conclusory statements, and if they are not called into question by contradictory evidence 

in the record or by evidence of agency bad faith.’” Id. at 1227 (quoting Gallant v. Nat’l Labor 

Relations Bd., 26 F.3d 168, 171 (D.C. Cir. 1994)). “If an agency’s affidavit 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, then summary judgment 

is warranted on the basis of the affidavit alone.” Am. Civil Liberties Union v. U.S. Dep’t of 

Defense, 628 F.3d 612, 619 (D.C. Cir. 2011). “Uncontradicted, plausible affidavits showing 
6

reasonable specificity and a logical relation to the exemption are likely to prevail.” Ancient Coin 

Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir. 2011). 

Summary judgment is proper when the pleadings, the discovery materials on file, and any 

affidavits or declarations “show[] that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

III. DISCUSSION

NSA first argues that the Ledgett Memorandum was properly withheld under FOIA 

Exemption 5, which incorporates the presidential communications privilege. In response, the 

Project argues that the presidential communications privilege does not extend to the Memorandum 

for three main reasons.3

 First, it argues that the Memorandum does not reflect presidential 

decision-making because its purpose “was to document a conversation in which the President made 

an inappropriate attempt to enlist the NSA Director to publicly undermine the FBI’s ongoing 

investigation of the President’s campaign and administration.” Pl.’s Mot. at 12. Second, it argues 

that disclosure is warranted due to the serious allegations of wrongdoing by the President. Lastly, 

it contends that the disclosure of the information in the Ledgett Memorandum in the Mueller 

Report precludes invocation of the privilege. The Court considers each of these arguments in 

turn.4

 3 The Project also argued that the government failed to adequately justify its assertion of the 

presidential communications privilege in the affidavits it submitted. See Pl.’s Mot. at 18–20. That 

argument, however, focused primarily on the assertions in the declarations and suggested that the 

Court review the Ledgett Memorandum in camera. As the Court has done just that, and as it bases 

its decision not only on the briefing and submissions by the parties but also on its in camera review 

of the Memorandum, the Court does not dwell on this argument here. 

4 Because the Court determines that the Ledgett Memorandum was properly withheld under FOIA 

Exemption 5, it does not reach the parties’ arguments with respect to other FOIA exemptions

except to address some concerns related to the inclusion of classified information in the 

Memorandum. 
7

A. The Presidential Communications Privilege and Presidential Decision-Making

The chief determination to be made is whether the Ledgett Memorandum qualifies for the 

presidential communications privilege under FOIA Exemption 5. Exemption 5 applies to “interagency 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). “To qualify [for this 

exemption], a document must thus satisfy two conditions: its source must be a Government agency, 

and it must fall within the ambit of a privilege against discovery under judicial standards that would 

govern litigation against the agency that holds it.” Dep’t of the Interior v. Klamath Water Users 

Protective Ass’n, 532 U.S. 1, 8 (2001). Over the years, it has been construed as protecting “those 

documents, and only those documents, normally privileged in the civil discovery context.” Nat’l 

Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Available privileges 

include the presidential communications privilege. Judicial Watch, Inc. v. U.S. Dep’t of Defense 

(Judicial Watch II), 913 F.3d 1106, 1109 (D.C. Cir. 2019).

That privilege ensures that the President can receive “frank and informed opinions from 

his senior advisers” who may otherwise “‘be unwilling to express [those views] except privately.’” 

Id. at 1110 (quoting United States v. Nixon, 418 U.S. 683, 708 (1974)). The shelter of this privilege 

is “properly invoked with respect to ‘documents or other materials that reflect presidential 

decisionmaking and deliberations and that the President believes should remain confidential.’” Id.

at 1111 (quoting In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997)). And it can be invoked 

by not only the President, but also his advisors, to insulate their communications “‘in the course 

of preparing advice for the President . . . even when these communications are not made directly 

to the President.’” Id. (alteration in original) (quoting In re Sealed Case, 121 F.3d at 751–52). 

The standard is whether the documents were “‘solicited and received’ by the President or his 
8

immediate White House advisers who have ‘broad and significant responsibility for investigating 

and formulating the advice to be given the President.’” Judicial Watch, Inc. v. Dep’t of Justice 

(Judicial Watch I), 365 F.3d 1108, 1114 (D.C. Cir. 2004) (quoting In re Sealed Case, 121 F.3d at 

752). This privilege “‘should be construed as narrowly as is consistent with ensuring that the 

confidentiality of the President’s decision-making process is adequately protected.’” Id. at 1116 

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

“Unlike the deliberative process privilege . . . the presidential communications 

privilege . . . ‘applies to documents in their entirety, and covers final and post-decisional materials 

as well as pre-deliberative ones.’” Id. at 1113–14 (quoting In re Sealed Case, 121 F.3d at 745). 

Moreover, “[a]lthough the presidential communications privilege is a qualified privilege, subject 

to an adequate showing of need, FOIA requests cannot overcome the privilege because ‘the 

particular purpose for which a FOIA plaintiff seeks information is not relevant in determining 

whether FOIA requires disclosure.’” Judicial Watch II, 913 F.3d at 1112 (quoting Loving v. Dep’t 

of Def., 550 F.3d 32, 40 (D.C. Cir. 2008)).

The Project does not dispute that the Ledgett Memorandum memorializes a conversation 

between the former NSA Director and the President. See, e.g., Pl.’s Stmt. ¶¶ 45–48 (outlining 

Mueller Report’s description of relevant call and resulting memorandum). Instead, the Project 

asserts that the privilege “only applies to communications intended to advise the President on some 

aspect of his decision-making,” and not when “the government is attempting to hide evidence of 

wrongdoing by a President that was so substantial the Special Counsel highlighted it as an example 

of potential obstruction of justice.” Pl.’s Mot. at 13. In short, it contends that there is no connection 

between the Ledgett Memorandum and direct decision-making by the President. See, e.g., id. at 

15. 
9

In support of its withholding, NSA advances that the subject of the telephone call was “a 

conversation regarding foreign affairs and national security, implicating potential Presidential 

decision-making.” Kiyosaki Decl. ¶ 27; see Def.’s Mot. at 10–11. The second declaration

submitted by the agency explains that “Admiral Rogers provided the President with information 

and analysis based on specific NSA intelligence—and on his expertise as the director of an 

intelligence agency and as a senior military officer—in the context of a conversation related to 

national security and foreign affairs.” Thompson Decl. ¶ 13. Accordingly, NSA argues, the 

memoranda memorializes a conversation that was “generated in the course of advising the 

President in the exercise of” his powers relating to foreign relations and intelligence-gathering 

activities. Def.’s Mot. at 12 (internal quotation marks omitted). 

The Project’s argument that “[t]here is no plausible nexus between the Ledgett 

Memorandum” and direct presidential decision-making, Pl.’s Mot. at 15, is unsupported by the 

Court’s in camera review of the document. 

However, the Court notes a seeming discrepancy between the declarations submitted by 

the Government and the Ledgett Memorandum itself. The declarations submitted by the 

Government suggest that the Memorandum concerns multiple distinct topics related to foreign 

relations and national security. See, e.g., Kiyosaki Decl. ¶ 27; Thompson Decl. ¶ 12. That is not 

the case. While the Memorandum concerns several topics, all are directly related to a central set 

of interrelated issues. Without in camera review of the Memorandum, the Court would have held 

a distinctly different impression of what the Memorandum contained. This discrepancy is 

concerning, especially as courts routinely rely upon declarations in the FOIA context to determine 

whether documents were properly withheld. 
10

Regardless, the Court’s in camera review of the Ledgett Memorandum demonstrates that 

the conversation memorialized in the Memorandum involved advice solicited by, and provided to, 

the President that directly related to presidential decision-making with respect to foreign relations 

and intelligence-gathering activities. Such decisions are important presidential functions, and 

deliberations about these decisions and activities are among those principally protected by the 

presidential communications privilege. See, e.g., Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 

447 (1977) (describing President’s “more particularized and less qualified privilege relating to the 

need to protect military, diplomatic, or sensitive national security secrets” (internal quotation 

marks omitted)). At bottom, the Ledgett Memorandum is a document “that reflect[s] 

presidential . . . deliberations and that the President believes should remain confidential.” Judicial 

Watch II, 913 F.3d at 1113 (internal quotation marks omitted). “Disclosure of the [Ledgett 

Memorandum] would reveal the President’s deliberations.” Id. 

Indeed, the U.S. Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) 

has previously found that similar notes and memoranda memorializing meetings and telephone 

calls with a nexus to presidential decision-making are protected from disclosure by the presidential 

communications privilege. In In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), for example, the 

D.C. Circuit found that documents “authored by the White House Counsel, Deputy White House 

Counsel, Chief of Staff and Press Secretary” that “were communications connected to an official 

matter on which they were directly advising the President” were protected by the privilege. Id. at 

758. Also protected were notes taken at meetings attended by the advisers and connected to 

presidential decision-making, as the “notes reflect[ed] these advisers’ communications.” Id. 

The D.C. Circuit also considered a similar document in its recent opinion in Judicial Watch 

II. There, the D.C. Circuit considered, among other things, the withholding of “information related 
11

to memoranda regarding the capture or killing of Osama bin Laden in 2011,” including five 

memoranda authored by various presidential advisers. Judicial Watch II, 913 F.3d at 1109. The 

Court found that these documents were protected from disclosure, as the decision at issue required 

the President to exercise his informed judgment as Commander in Chief “on a highly sensitive 

subject with serious direct and collateral consequences for foreign relations that required a high 

degree of protection for ‘the President’s confidentiality and the candor of his immediate White 

House advisors.’” Id. at 1111 (quoting Judicial Watch I, 365 F.3d at 1123). The court further 

rejected the argument that because the documents were memoranda memorializing analysis and 

advice provided to the President, and were therefore likely “prepared after the briefing,” they were 

not protected. See id. at 1112–13. The memoranda at issue here, drafted by the former Deputy 

Director of the NSA and memorializing a conversation between the then-Director of the NSA and 

the President involving advice and deliberations regarding national security and intelligencegathering decisions, is similarly protected by the privilege. 

At various points in its briefing, the Project suggests that the Court should consider whether 

portions of the Ledgett Memorandum that were possibly unrelated to presidential decision-making 

can be withheld under FOIA Exemption 5. In general, the presidential communications privilege 

extends to documents in their entirety. See Judicial Watch I, 365 F.3d at 1113–14. The Project 

first suggested in its cross-motion that the Court may perform a segregability analysis under In re 

Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). Pl.’s Mot. at 16. Moreover, in its Reply, the Project 

also suggested that the general principle of non-segregability in this context should not hold true 

when some of the contents of a withheld document have been officially acknowledged or 

disclosed. See, e.g., Pl.’s Reply at 5 n.2 (arguing that construing presidential communications 

privilege narrowly when part of document has been acknowledged means that privilege cannot 
12

extend to entire document). The Court considers this argument both in the context of the privilege 

more generally and, below, in the context of the disclosure doctrine.

To begin with, In re Sealed Case does not support that a segregability analysis is 

appropriate for documents otherwise protected by the presidential communications privilege in the 

FOIA context. In that case, which involved efforts to compel performance of a subpoena duces 

tecum, the D.C. Circuit explained that the presidential communications privilege “is qualified, not 

absolute, and can be overcome by an adequate showing of need.” 121 F.3d at 745. It further stated 

that “[i]f a court believes that an adequate showing of need has been demonstrated, it should then 

proceed to review the documents in camera to excise non-relevant material. The remaining 

relevant material should be released.” Id. The Project, in its cross-motion, suggests that the need 

is great here. See Pl.’s Mot. at 16–17. This argument overlooks, however, that the D.C. Circuit 

has specifically explained that the need can never be great enough in FOIA cases:

Although the presidential communications privilege is a qualified privilege, subject 

to an adequate showing of need, FOIA requests cannot overcome the privilege

because “the particular purpose for which a FOIA plaintiff seeks information is not 

relevant in determining whether FOIA requires disclosure,” Loving, 550 F.3d at 40 

(quoting In re Sealed Case, 121 F.3d at 737 n.5).

Judicial Watch II, 913 F.3d at 1112 (emphasis added). The analysis in In re Sealed Case is 

therefore unhelpful for the Project here. 

Moreover, the D.C. Circuit has consistently explained that “[o]nce the privilege applies, 

the entirety of the document is protected.” Id. at 1111; see also, e.g., Loving, 550 F.3d at 37–38 

(“The privilege covers documents reflecting presidential decisionmaking and deliberations, 

regardless of whether the documents are predecisional or not, and it covers the documents in their 

entirety.” (internal quotation marks omitted)); In re Sealed Case, 121 F.3d at 745 (“In addition, 

unlike the deliberative process privilege, the presidential communications privilege applies to 
13

documents in their entirety, and covers final and post-decisional materials as well as predeliberative ones.”). As the Court found above, the Ledgett Memorandum contains information 

protected by the presidential communications privilege. The Court understands—and shares—the 

Project’s concern that otherwise responsive and unprotected materials may be incorporated into a 

document with materials protected by the presidential communications privilege, thus rendering 

the entire document protected from disclosure.

5 But, as the doctrine currently stands, the entire 

Memorandum here is protected from disclosure under the presidential communications privilege. 

B. Government Misconduct

The Project also appears to argue, in a short portion of its brief, that the Ledgett 

Memorandum cannot be withheld because it qualifies for a government wrongdoing or misconduct 

exception. See Pl.’s Mot. at 17–18; see also, e.g., Pl.’s Reply at 2 (“Simply put, this is a case about 

an extreme assertion of executive privilege intended to shield clear evidence of presidential 

wrongdoing that, according to the Special Counsel, would have been considered in normal 

circumstances to be evidence of possible obstruction of justice.”). Yet it is far from clear that any 

such exception may be properly invoked in a FOIA Exemption 5 case involving the presidential 

communications privilege. 

The Project cites to National Archives and Records Administration v. Favish, 541 U.S. 157 

(2004), and related cases to support this argument. That case, however, involved “privacy 

concerns addressed by Exemption 7(c)” of FOIA. Id. at 172. The Supreme Court there found that 

when a FOIA requester demonstrates a public interest that is sufficient to overcome the privacy 

interest at stake in such cases, the government may be required to disclose the information. See 

 5 The Court ventures no opinion as to whether the portions of the Ledgett Memorandum directly 

referenced in the Mueller Report and primarily sought by the Project would, on their own, be 

protected by the presidential communications privilege if a segregability analysis were conducted. 
14

id. In those cases, the requester must (1) “show that the public interest sought to be advanced is a 

significant one, an interest more specific than having the information for its own sake,” and (2) 

“must show the information is likely to advance that interest.” Id. The Project also cites to Roth 

v. U.S. Department of Justice, 642 F.3d 1161 (D.C. Cir. 2011), which applies Favish in the same 

FOIA Exemption 7(c) context, see id. at 1178. The privacy concerns underlying Exemption 7(c) 

undoubtedly differ from those underlying Exemption 5 and the presidential communications 

privilege. 

While the D.C. Circuit has yet to recognize such an exception in the Exemption 5 context, 

other courts in this circuit have found a government misconduct exception in the context of the 

deliberative process privilege. See, e.g., Reinhard v. Dep’t of Homeland Sec., No. 18-cv-1449 

(JEB), 2019 WL 3037827, at *11 (D.D.C. July 11, 2019) (referencing “government-misconduct 

exception to the deliberative-process privilege” and explaining that “any potential impropriety” 

must “rise[] to the level of ‘extreme government wrongdoing’ necessary to override this privilege”

(quoting Wisdom v. U.S. Tr. Program, 266 F. Supp. 3d 93, 106 (D.D.C. 2017))); Nat’l 

Whistleblower Ctr. v. Dep’t of Health & Human Servs., 903 F. Supp. 2d 59, 67 (D.D.C. 2012) 

(“Consistent with these cases, the Court here finds that the government-misconduct exception may 

be invoked to overcome the deliberative-process privilege in a FOIA suit.”); Judicial Watch of 

Fla., Inc. v. U.S. Dep’t of Justice, 102 F. Supp. 2d 6, 15 (D.D.C. 2000) (“It is true that ‘where there 

is reason to believe the documents sought may shed light on government misconduct, the 

[deliberative process] privilege is routinely denied, on the grounds that shielding internal 

government deliberations in this context does not serve the public’s interest in honest, effective 

government.’” (quoting In re Sealed Case, 121 F.3d at 738)); cf. In re Sealed Case, 121 F.3d at 

738 (explaining that deliberative process privilege is routinely denied “where there is reason to 
15

believe the documents sought may shed light on government misconduct” outside of FOIA 

context). But see Judicial Watch, Inc. v. U.S. Dep’t of State, 241 F. Supp. 3d 174, 183 (D.D.C. 

2017) (“Thus, the Court finds that the only applicable Circuit authority militates against 

recognizing a government misconduct exception in a FOIA case[.]”), amended on other grounds 

on reconsideration by 282 F. Supp. 3d 338 (D.D.C. 2017).

The Project has not cited to any of these cases, although it did cite to a Seventh Circuit case 

suggesting that such an exception may exist in the context of the deliberative process privilege. 

See, e.g., Enviro Tech Int’l, Inc. v. U.S. Envtl. Prot. Agency., 371 F.3d 370, 376 (7th Cir. 2004) 

(noting in dicta that “internal discussions about a course of agency action that would be nefarious, 

if not illegal, likewise would not be protected by the deliberative process privilege”). Nor has the 

Project cited to any case that specifically applies this exception in the context of the presidential 

communications privilege—or explained why the Court should recognize such an exception here, 

in a completely different context. See Pl.’s Mot. at 17–18. 

In fact, D.C. Circuit precedent suggests that extension of the privilege to this context may 

be inappropriate. Most notably, in In re Sealed Case, the D.C. Circuit discussed briefly the 

government misconduct exception with respect to both the deliberative process privilege and the 

presidential communications privilege, albeit outside of the FOIA context. See 121 F.3d at 738, 

746. At one point, the D.C. Circuit stated that:

[W]hile both the deliberative process privilege and the presidential privilege are 

qualified privileges, the Nixon cases suggest that the presidential communications 

privilege is more difficult to surmount. In regard to both, courts must balance the 

public interests at stake in determining whether the privilege should yield in a 

particular case, and must specifically consider the need of the party seeking 

privileged evidence. But this balancing is more ad hoc in the context of the 

deliberative process privilege, and includes consideration of additional factors such 

as whether the government is a party to the litigation. Moreover, the privilege 

disappears altogether when there is any reason to believe government 

misconduct occurred. 
16

On the other hand, a party seeking to overcome the presidential privilege 

seemingly must always provide a focused demonstration of need, even when 

there are allegations of misconduct by high-level officials. In holding that the 

Watergate Special Prosecutor had provided a sufficient showing of evidentiary 

need to obtain tapes of President Nixon’s conversations, the Supreme Court made 

no mention of the fact that the tapes were sought for use in a trial of former 

presidential assistants charged with engaging in a criminal conspiracy while in 

office. Accord Senate Committee, 498 F.2d at 731 (noting that presidential 

privilege is not intended to shield governmental misconduct but arguing that 

showing of need turns on extent to which subpoenaed evidence is necessary for 

government institution to fulfill its responsibilities, not on type of conduct evidence 

may reveal); contra 26A Wright & Graham, supra, § 5673, at 53–54 (quoting 

Senate Committee’s not-a-shield language and arguing that allegations of 

misconduct qualify the privilege, but not addressing Senate Committee’s comment 

that need showing turns on function for which evidence is sought and not on 

conduct revealed by evidence).

Id. at 746 (formatting altered, emphasis added, and footnote omitted); see also id. at 751 (“The 

risk of a chill increases, however, as the possibility of disclosure rises, especially if there are 

situations in which the privilege may virtually disappear, such as when government misconduct is 

alleged. Nor does it suffice to respond that the public interest in honest and accountable 

government is stymied if presidential advisers are allowed even a qualified privilege when 

government misconduct is charged.”). 

There are several takeaways from this discussion. First, the “differences between the 

presidential communications privilege and the deliberative privilege demonstrate that the 

presidential privilege affords greater protection against disclosure.” Id. at 746. Moreover, while 

the D.C. Circuit suggested that (outside the FOIA context) the deliberative process privilege 

“disappears altogether” if “there is any reason to believe government misconduct occurred,” it did 

not say the same in the context of the presidential communications privilege. See id. Instead, it 

focused on the requirement for showing an adequate need for the withheld documents, even when 

there are allegations of misconduct. See id. This focus, and the subsequent discussion and 
17

citations, appear to suggest that any government misconduct exception does not apply in the same 

form—or with the same force—to the presidential communications privilege; it is instead part of 

the determination of whether there is a need sufficient to overcome the privilege. However, as 

noted above, the D.C. Circuit has found that no need can overcome the presidential 

communications privilege in the FOIA context “because the particular purpose for which a FOIA 

plaintiff seeks information is not relevant in determining whether FOIA requires disclosure.” 

Judicial Watch II, 913 F.3d at 1112 (internal quotation marks omitted). Together, these 

discussions suggest that it would be inappropriate to extend the government misconduct exception 

to the presidential communications privilege in a FOIA Exemption 5 context. 

At bottom, in light of precedent (and the lack thereof), the Project’s brief invocations of 

this exception without further explanation is insufficient to convince the Court that extending any 

potential government misconduct exception to this context is appropriate. Although the Court 

recognizes the Project’s concern that withholding of documents may be used to shield government 

wrongdoing, the Court declines to extend the exception here.6

 

C. Official Disclosure or Acknowledgement 

Lastly, the Project argues that the Ledgett Memorandum cannot be withheld under 

Exemption 5 because the information contained in it—or at least some of that information—has 

already been officially disclosed. See Pl.’s Mot. at 20–21. In particular, the Project contends that 

it “plainly the case here” that “the information sought by [the Project] matches the information 

already made public and is as specific as the information that has been made public to date.” Id.

at 20–21. The Project points to the description of the phone call between the President and the 

 6 The Court therefore does not address whether, if a government misconduct exception did apply 

in this specific context, the wrongdoing alleged here would be sufficient to overcome the 

presidential communications privilege. 
18

Director of the NSA in the Mueller Report and argues that official disclosure precludes NSA from 

withholding the Memorandum in full. See id.

In response, NSA argues that the Mueller Report is not specific enough to constitute 

disclosure because “it does not quote from or otherwise divulge the full contents of the 

communications between the President and Admiral Rogers.” Def.’s Mot. at 13. The declarations 

submitted by NSA supported this assertion. See Kiyosaki Decl. ¶ 28; Thompson Decl. ¶ 12. 

Because the Mueller Report “describes only vaguely and only in part the contents of the Ledgett 

Memo,” NSA contends, the Memorandum was not officially disclosed in full. Def.’s Mot. at 15. 

The Court agrees with NSA that the strict requirements of the official disclosure test are not 

satisfied here. 

“If the government has officially acknowledged information, a FOIA plaintiff may compel 

disclosure of that information even over an agency’s otherwise valid exemption claim.” Am. Civil 

Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 620 (D.C. Cir. 2011). Information must satisfy 

three criteria to qualify as 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.” Id. at 620–21. But “the fact that 

information exists in some form in the public domain does not necessarily mean that official 

disclosure will not cause harm cognizable under a FOIA exemption.” Wolf v. C.I.A., 473 F.3d 

370, 378 (D.C. Cir. 2007). “Prior disclosure of similar information does not suffice; instead, the 

specific information sought by the plaintiff must already be in the public domain by official 

disclosure.” Id. (emphasis in original). “The insistence on exactitude recognizes the 
19

Government’s vital interest in information relating to national security and foreign affairs.” Id. 

(internal quotation marks omitted).

These requirements are not met here. As for the first and second requirements, the Project 

requests the Ledgett Memorandum either in full or in part. As the Court noted above, however, 

documents properly withheld under the presidential communications privilege are generally 

withheld or released in full. To address this hurdle in its request for only a portion of the 

Memorandum, the Project argues that the D.C. Circuit’s language indicating that this privilege 

“must be construed as narrowly as is consistent with ensuring that the confidentiality of the 

President’s decisionmaking process is adequately protected,” Judicial Watch II, 913 F.3d at 1111 

(internal quotation marks omitted), must be squared with the official disclosure doctrine. This is 

done, the Project suggests, by allowing disclosure of a portion of the document. See Pl.’s Reply 

at 5 n.2. However, as the Court discussed at length above, this ignores consistent precedent. 

Accordingly, the Court rejects the Project’s argument that part of the Ledgett Memorandum can 

be released via a segregability analysis. 

The Court consequently considers the Project’s request for the Ledgett Memorandum in 

full. As noted above, precedent on this topic indicates that there must be a close match between 

the information requested and the information disclosed in recognition of “the Government’s vital 

interest in information relating to national security and foreign affairs.” Wolf, 473 F.3d at 378

(internal quotation marks omitted). Indeed, in cases where disclosure of information is at issue, 

“the inquiry turns on the match between the information requested and the content of the prior 

disclosure.” Id. In Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981), for instance, 

the D.C. Circuit rejected the argument that disclosure of some information, which overlapped with 

the information sought, rendered all the information sought officially disclosed or acknowledged, 
20

see id. at 752–53. And in Fitzgibbon v. C.I.A., 911 F.2d 755 (D.C. Cir. 1990), the D.C. Circuit 

reversed the district court’s finding that information about a particular CIA station should be 

disclosed as the information disclosed was about a different time period (in 1960 to 1961) than the 

time period in the request (dating back to 1956), see id. at 765–66. 

In light of this precedent and the Court’s in camera review of the Ledgett Memorandum, 

the information disclosed and released in the Mueller Report is not sufficiently specific. In other 

words, the information requested by the Project—the Ledgett Memorandum—is not as specific as 

the information previously disclosed and released in the Report. The Mueller Report’s description 

of the phone call and resulting Memorandum is not as comprehensive as the Ledgett Memorandum 

itself; the Memorandum contains a significant amount of information that was not included in the 

Mueller Report. Even with respect to the information included in the Mueller Report, the Ledgett 

Memorandum contains more details.

7

 The first and second requirements are therefore not met 

here. The Court thus rejects the Project’s argument that the Ledgett Memorandum cannot be 

withheld on this basis. 

IV. CONCLUSION

The Court finds that the Ledgett Memorandum was properly withheld under the 

presidential communications privilege pursuant to FOIA Exemption 5. Accordingly, the Court 

GRANTS NSA’s Motion for Summary Judgment, ECF No. 34, and DENIES the Project’s CrossMotion for Summary Judgment, ECF No. 35. An appropriate Order accompanies this 

 7 While the Court does not address the parties’ arguments with respect to classified information in 

depth, based on the Court’s in camera review, release of the Ledgett Memorandum in full would 

also present concerns with respect to classified information. See also Kiyosaki Decl. ¶¶ 16–20; 

Thompson Decl. ¶¶ 9–10. 
21

Memorandum Opinion. There are no claims remaining and therefore this case shall be 

DISMISSED.

Date: March 23, 2020 /s/

COLLEEN KOLLAR-KOTELLY

United States District Judge