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DOW JONES & CO. v. UNITED STATES DOJ

July 10, 1989

DOW JONES & COMPANY, INC., Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant


Aubrey E. Robinson, Jr., Chief United States District Judge.


The opinion of the court was delivered by: ROBINSON, JR.

AUBREY E. ROBINSON, JR., CHIEF UNITED STATES DISTRICT JUDGE

 This is a Freedom of Information Act *fn1" ("FOIA" or "the Act") case seeking disclosure of the letter sent by the United States Department of Justice ("DOJ") to the Chairman of the House of Representatives' Committee on Standards of Official Conduct ("House Ethics Committee") detailing its investigation of Mr. St Germain, who at the time the letter was written was a member of Congress. DOJ has raised exemptions 5 (work product and deliberative process privilege), 7(C), and 7(D) as proper grounds for withholding disclosure. *fn2" Currently pending are DOJ's motion for summary judgment and plaintiff's cross-motion for summary judgment. Because the Court concludes that the deliberative process privilege applies, the Court shall grant DOJ's motion and deny plaintiff's cross-motion.

 BACKGROUND:

 DOJ conducted a grand jury investigation of St Germain; at issue was his receipt of free meals. After concluding that the relevant statute and the high burden of proof in a criminal trial made the likelihood of conviction unlikely, DOJ declined to prosecute. However, it sent a letter to the House Ethics Committee summarizing its investigation, to enable the House Ethics Committee to determine whether House rules had been violated and whether disciplinary action was warranted. The DOJ letter (hereafter the referral letter) noted that the investigation had uncovered "substantial evidence of serious and sustained misconduct by Representative St Germain"; gave its reasons for not prosecuting; informed the committee that evidence had been presented to a grand jury and that DOJ would support any House Ethics Committee effort to obtain the required court order for disclosing the grand jury materials; and described the evidence it had obtained in the course of interviews.

 When the House Ethics Committee moved for disclosure of the grand jury materials, the Washington Post and Public Citizen, a public interest law firm, learned of the motion. They moved for disclosure of the file, which included the referral letter ("grand jury disclosure matter"). The Court unsealed the file except for a portion of the referral letter. After balancing the privacy interests of St Germain and persons named in the letter with the public interest in open court records, the Court concluded that the general contours and conclusion of the investigation should be disclosed but the details should remain sealed. A redacted version of the referral letter was ordered to be placed on the public record.

 In the meantime, the Washington Post, through its parent corporation Dow Jones, Inc., had been pursuing a FOIA request to DOJ for disclosure of the referral letter. The FOIA request was denied, and shortly before the Court's order in the grand jury disclosure matter, Dow Jones, Inc. ("Plaintiff"), commenced this action. The action was originally assigned to Judge Richey, but then reassigned to this Court as related to the grand jury disclosure matter. A briefing schedule was agreed to and approved; and the motion and cross-motion for summary judgment have been fully briefed.

 DISCUSSION:

 Under FOIA the government bears the burden of justifying non-disclosure; disclosure is presumed appropriate unless the government establishes that one of the exemptions apply. DOJ has cited three statutory exemptions, 5, 7(C) and 7(D), 5 U.S.C. § 552(b)(5), 7(C) & 7(D), for its contention that four grounds for non-disclosure support its denial of the FOIA request. The Court will discuss them seriatim.

 1) Exemption 5 :

 This exemption applies to "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). Generally speaking, this covers documents which normally would not be discoverable in litigation with the agency. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975). The two discovery-related privileges which DOJ invokes are the work-product privilege and deliberative process privilege.

 A) Deliberative Process Privilege :

 This privilege protects the "decision making processes of government agencies." Sears, 421 U.S. at 150. It is limited to materials that are predecisional and deliberative. Id. at 151-52. A document explaining a decision already made is not protected. Id.

 Plaintiff contends that the referral letter cannot be either predecisional or deliberative because it was written after DOJ had decided not to prosecute. Thus it does not reflect anything about its decisionmaking process; at best, it merely explains DOJ's decision not to prosecute. According to Plaintiff, that the letter may be deliberative-process material of the House Ethics Committee is irrelevant, because FOIA does not apply to Congress and DOJ had no legal obligation to refer the matter to the Committee.

 DOJ counters that inter-branch cooperation should be treated the same as inter-agency; that because the referral letter would be covered by the privilege had it been transmitted to another executive agency with jurisdiction to consider the matter, it should be covered here. There is no reason, DOJ contends, to presume that Congress would deny itself the benefits of the deliberative process privilege, which encourages the flow of information to policy-makers.

 Two cases in this circuit, without much analysis, have applied exemption 5 to materials transmitted to Congress. Demetracopoulos v. CIA, 3 GDS para. 82,508 at 83,283 (D.D.C. 1982) (Parker, J.) (material properly withheld because of candid exchanges of information to and from Congress), reprinted in Plaintiff's Cross-Motion for Summary Judgment as Exhibit 6; Letelier v. DOJ, 3 GDS para. 82,257 at 82,714 (D.D.C. 1982) (Flannery, J.) (materials prepared for congressional committee by CIA, at committee's request, protected by exemption 5 because "such consultations are an integral part of the deliberative process and to discuss this process in public view would inhibit frank discussions of policy matters and likely impair the quality of decisions."), reprinted in Plaintiff's Cross-Motion for Summary Judgment as Exhibit 7.

 The Court will follow Demetracopoulos and Letelier, and construes exemption 5 to encompass inter-branch memoranda of the type at issue in this case. Plaintiff's attempt to distinguish the cases is not persuasive. *fn3" Similarly, plaintiff's argument that mere transmittal of the letter cannot render it an "inter-agency" document ignores the context in which the referral letter was produced. This is not simply a case of DOJ transmitting non-privileged material to the Committee, as might be the case had DOJ transmitted an intra-agency memorandum explaining the decision not to prosecute. The letter would not have been created but for the planned referral. It thus is the type of information that without question (but for its inter-branch nature) would be covered by exemption 5 in that it is advice from one governmental employee to another regarding a matter within the receiver's decision-making authority. If the exemption does not apply, it is ...


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