D.C. Circuit denies Loving's FOIA appeal

In a 3-0 opinion written by Judge Tatel, the D.C. Circuit today denied Dwight Loving's appeal of an adverse FOIA ruling from Judge Huvelle. Loving v. Dep't of Defense, No. 07-5318 (D.C. Cir. Dec. 23, 2008). The opinion is available on the D.C. Circuit's web site here.

The FOIA appeal concerned four specific documents relevant to possible presidential approval of Loving's death sentence. (Many other documents were released to Loving.) One requested document was the Judge Advocate General of the Army's memorandum forwarding the record to the Secretary of the Army. The next document sought was the Secretary of the Army's memorandum forwarding the case to the President. The next requested document is a memorandum from the Secretary of Defense to the President concerning the case. The final requested document was a memorandum from DOD OGC to the White House Counsel that apparently concerned both the Loving and Gray cases.

The D.C. Circuit agreed with Judge Huvelle that the first three documents were protected by the presidential communications privilege, even though the first document was sent to the Secretary of the Army and not to the President directly. Documents falling within this exemption are protected in their entirety with no need to determine whether any factual assertions within the documents are segregable. The D.C. Circuit found that the memo from DOD OGC to the White House Counsel was protected by the deliberative process privilege and found that DOD made an adequate representation that there was no non-privileged portion of this memo that had to be released.