Several federal agencies submitted Strategic Plans to the White House, based on an executive order issued in the early days of a new administration. The Strategic Plans were to show how the agencies will implement one of the administration’s important domestic policy initiatives.

Executive Privilege and the FOIA
A legal foundation established by officials from the immediate past administration sought the plans under the Freedom of Information Act (FOIA). On January 24, 2025, the US Court of Appeals for the DC Circuit held the plans were subject to executive privilege; the FOIA did not permit access to them.

If you are wondering how the DC Circuit could issue a ruling so quickly, you have a misimpression. The DC Circuit was reviewing agency plans submitted pursuant to an executive order signed by President Biden early in his administration. Former senior Trump administration officials had formed the legal foundation after the 2020 election.

Privilege Protects Communications to White House Advisers
The DC Circuit noted that executive privilege protects documents “that reflect presidential decision making and deliberations and that the President believes should remain confidential.” It applies to documents received “not just by the President, but also by immediate White House advisers with broad and significant responsibility for investigating and formulating the advice to be given the President.”

The foundation asserted the privilege did not apply because publicly available documents prove the strategic plans “were not inputs into presidential deliberations and decision making, but instead documented actions to be taken by each agency, independent of any decision making or deliberation by the President.” In rejecting that argument, the DC Circuit noted that the agencies did not adopt all the recommendations in the plans. Rather, “immediate White House advisers” with “broad and significant responsibility for investigating and formulating the advice to be given the President…” received them. The Strategic Plans informed “presidential decision making and deliberations.”

To see the opinion https://media.cadc.uscourts.gov/opinions/docs/2025/01/23-5173-2096137.pdf