United States Court of Appeals, District of Columbia Circuit
January 14, 2016
from the United States District Court for the District of
Columbia (No. 1:14-cv-00269)
M. Roth argued the cause for appellant. With him on the
briefs were Kerri L. Ruttenberg and Julia Fong Sheketoff.
W. Burge, Alysson L. Mills, and Jesse C. Stewart were on the
brief for amici curiae Sixty-three law professors in support
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.
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.
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
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.
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).
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
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.
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.
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.
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 ...