Wp Company LLC v. U.S. Department of Defense

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) WP COMPANY LLC, ) ) Plaintiff, ) ) v. ) Civil No. 21-cv-01025 (APM) ) U.S. DEPARTMENT OF DEFENSE et al., ) ) Defendants. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER I. INTRODUCTION It is not unusual for U.S. military personnel to work for and be paid by foreign governments after they retire. Before they accept such employment, however, the former member must secure approval from the Secretary of the military branch in which they served and the Department of State. The need for such consent is rooted in the Constitution itself. The Foreign Emoluments Clause of the Constitution prohibits any person holding an “Office of Profit or Trust” from accepting any payment from a foreign state “without the Consent of Congress.” U.S. CONST. art. I, § 9, cl. 8. Retired military personnel remain subject to recall to active duty and, because of that status, they are deemed to continue to occupy an “office of profit or trust” under the Constitution, even in retirement. So, if a retired member of the U.S. military wishes to work for and receive compensation from a foreign government, she must obtain the approval of Congress. By statute, Congress has provided blanket consent for retired members of the military to accept “civil employment (and compensation for that employment)” so long as they receive approval from the Secretary of the military branch in which they served and from the Secretary of State. 37 U.S.C. § 908(a)–(b). This case is about the records held and created by the Executive Branch when a former member of the military seeks approval to work for a foreign government. In October 2020, Plaintiff WP Company LLC—The Washington Post (the “Post”)—submitted a series of Freedom of Information Act (“FOIA”) requests to various components of the Department of Defense (“DOD”) and the State Department, seeking seven years of records mentioning applications for foreign employment, including all approvals and denials of such requests. Only after filing this action did the agencies meaningfully start to produce records, but they withheld certain key categories of information. Specifically, they withheld (1) pay and security-clearance level information of applicants ranked O-7 or higher under Exemption 6 but not their names; (2) the names of applicants ranked O-6 or lower also under Exemption 6 but not their pay information; and (3) memoranda from certain DOD components that analyze and make recommendations on applications under Exemption 5. The Post now challenges these withholdings, as well as the scope of some searches. Before the court are the parties’ cross-motions for partial summary judgment. For the reasons that follow, the court grants the Post’s motion and denies Defendants’ motion, except as to the limited information withheld under Exemption 7(C). The court declines to resolve the parties’ dispute over the adequacy of the State Department’s search at this juncture. II. BACKGROUND A. Applications to Work for Foreign Governments The Foreign Emoluments Clause provides that “no Person holding any Office of Profit or …

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