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National Association of Criminal Defense Lawyers v. United States Department of Justice Executive Office for United States Attorneys

United States Court of Appeals, District of Columbia Circuit

December 20, 2016

National Association of Criminal Defense Lawyers, Appellant
v.
United States Department of Justice Executive Office for United States Attorneys and United States Department of Justice, Appellees

          Argued January 14, 2016

         Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-00269)

          Yaakov M. Roth argued the cause for appellant. With him on the briefs were Kerri L. Ruttenberg and Julia Fong Sheketoff.

          Jason W. Burge, Alysson L. Mills, and Jesse C. Stewart were on the brief for amici curiae Sixty-three law professors in support of appellant.

          John D. Cline was on the brief for amici curiae American Civil Liberties Union, et al. in support of appellant.

          Timothy P. O'Toole and Addy Schmitt were on the brief for amici curiae The Constitution Project and The Innocence Project in support of appellant.

          Lewis Yelin argued the cause for appellees. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Vincent H. Cohen, Jr., Acting U.S. Attorney, and Leonard Schaitman, Attorney.

          Before: Srinivasan, Circuit Judge, and Edwards and Sentelle, Senior Circuit Judges.

          Srinivasan, Circuit Judge.

         The National Association of Criminal Defense Lawyers submitted a request under the Freedom of Information Act to obtain an internal Department of Justice publication known as the Federal Criminal Discovery Blue Book. The Blue Book is a manual created by the Department to guide federal prosecutors in the practice of discovery in criminal prosecutions. It contains information and advice for prosecutors about conducting discovery in their cases, including guidance about the government's various obligations to provide discovery to defendants.

         The Department refused to disclose the Blue Book, invoking the Freedom of Information Act's Exemption 5, which exempts from disclosure certain agency records that would be privileged from discovery in a lawsuit with the agency. The Department maintained that the Blue Book fell within the attorney work-product privilege, and therefore Exemption 5, because it was prepared by (and for) attorneys in anticipation of litigation. The district court agreed that the Blue Book is privileged attorney work product and thus is exempt from disclosure. We likewise conclude that the Blue Book consists of exempt attorney work product, but we remand to the district court for an assessment of whether the Blue Book also contains non-exempt policy statements amenable to reasonable segregation from the privileged work product.

         I.

         A.

         The Freedom of Information Act (FOIA) provides that government agencies must make agency records available to citizens upon request, subject to nine enumerated exemptions. 5 U.S.C. § 552. "Congress intended FOIA to permit access to official information long shielded unnecessarily from public view." Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011) (internal citations and quotation marks omitted). The statutory exemptions, accordingly, "are explicitly made exclusive and must be narrowly construed." Id. (internal citations and quotation marks omitted).

         Under Exemption 5, agencies may withhold "inter-agency or intra-agency memorandums or letters which 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). Exemption 5 covers records that would be "normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). The exemption allows the government to withhold records from FOIA disclosure under at least three privileges: the deliberative-process privilege, the attorney-client privilege, and the attorney work-product privilege. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). This case solely involves the last of those privileges, the attorney work-product privilege.

         B.

         On December 20, 2012, the National Association of Criminal Defense Lawyers (NACDL) sent a FOIA request to the Department of Justice (DOJ) seeking disclosure of the Blue Book. DOJ processed the request under the direction of Susan Gerson, Assistant Director in the FOIA/Privacy Act Staff of the Executive Office for U.S. Attorneys. After reviewing the Blue Book and consulting with DOJ staff familiar with the Book's inception and drafting, Gerson determined that it should be withheld in full pursuant to FOIA Exemptions 5 and 7(E). (The latter exemption, which we have no occasion to reach, exempts certain types of "records or information compiled for law enforcement purposes." 5 U.S.C. § 552(b)(7)(E).) On February 28, 2013, Gerson sent NACDL a form letter invoking both exemptions and denying its request.

         After unsuccessfully appealing the denial, NACDL brought this FOIA suit in the district court seeking to compel DOJ to release the Blue Book. The parties filed cross-motions for summary judgment, and DOJ again invoked Exemptions 5 and 7(E) in support of its decision to withhold the Blue Book in full. Because the parties disagreed about how to characterize the Blue Book's contents, the district court reviewed the Book in camera before rendering its decision on the merits of DOJ's decision to withhold.

         Following its in camera review of the Blue Book, the district court granted DOJ's motion for summary judgment. Nat'l Ass'n of Criminal Def. Lawyers v. Exec. Office for U.S. Attorneys, 75 F.Supp.3d 552 (D.D.C. 2014). The court found that DOJ was not required to disclose any portion of the Blue Book, holding that the Book in its entirety is protected as attorney work product. Id. at 557, 561. Because the court found that the Blue Book could be withheld in full under Exemption 5, it did not address the applicability of Exemption 7(E). Id. at 556.

         II.

         NACDL appeals, arguing that the claimed FOIA exemptions are inapplicable and the Blue Book therefore should be disclosed in full. We review the district court's decision de novo. See Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005). In doing so, we must "ascertain whether the agency has sustained its burden of demonstrating that the documents requested are . . . exempt from disclosure under the FOIA." Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)) (quotation marks omitted). When making that determination, we rely centrally on the agency's descriptions of the content of the relevant documents as set forth in its Vaughn index and accompanying affidavits. See Mead ...


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