withheld under the attorney-work product privilege.
Those three issues will be dealt with in reverse order.
1. "Foreseeable harm "
Although plaintiff has invested a great deal of effort and many words on this issue, "foreseeable harm" is not part of the required analysis of the attorney-work product privilege under Exemption 5. The concept and the phrase arise from the Attorney General's Memorandum for Heads of Departments and Agencies Regarding the Freedom of Information Act (October 4, 1993) and is applicable primarily to the deliberative process privilege. See Army Times Publishing Co. v. Department of the Air Force, 302 U.S. App. D.C. 432, 998 F.2d 1067, 1071-72 (concerning whether disclosure would discourage candid discussion). Granted that the Attorney General's FOIA memorandum encourages the discretionary disclosure of attorney work product when the privilege is no longer needed, no case yet requires a district court to review an agency's Exemption 5 attorney-work product privilege claim against an abuse of discretion standard, and this court will not do so.
2. Adequacy of the search.
This is a narrow point, involving the files of a former AUSA. Plaintiff believes that John Markham, who was lead prosecutor in the Massachusetts case, maintained "personal" files, from which he produced at least one document in 1991 in compliance with an order Judge Harris had entered in a FOIA action styled Freeman v. United States Department of Justice, No. 90-274 (D.D.C.). Plaintiff asserts that the document retrieved from Markham in 1991 did not turn up in EOUSA's production made in response to plaintiff's request. Plaintiff then argues, by way of a syllogism that is missing a step or two, that "because that document is also responsive to the request in this case, it is clear that Markham's files must be searched in order to locate all responsive documents." Plaintiff's Reply Memo, p. 14. It is undisputed that Markham is no longer with the U.S. Attorney's Office. If he did turn his files over to the U.S. Attorney's Office, they have been searched. If he did not, they are beyond the reach of FOIA.
3. Adequacy of claim of attorney-work product privilege.
Plaintiff argues that the claim is made in an unacceptably conclusory fashion and that EOUSA has made no showing that it would be impractical to segregate fact from analysis and mental impressions. Again taking the latter point first, "The work-product privilege simply does not distinguish between factual and deliberative material." Martin v. Office of Special Counsel, 260 U.S. App. D.C. 382, 819 F.2d 1181, 1187 (D.C. Cir. 1987). As to the assertion that the claim of attorney-work product is conclusory and unsubstantiated, the Court has reviewed the Gay declaration in conjunction with the Vaughn index provided by EOUSA and in the context of the major criminal investigations and prosecutions of which the documents formed a part. The Vaughn index (exhibit Q to defendant's motion for summary judgment) is detailed and complete and leaves no question of the privileged status of the documents described. Plaintiff has failed to raise a credible challenge to the EOUSA's claim of attorney-work product privilege claim.
The government's motion for summary judgment will be granted. An appropriate order accompanies this memorandum.
United States District Judge
Dated: October 11, 1996
For the reasons stated in the accompanying memorandum it is this 11th day of October 1996
ORDERED that defendant's motion for summary judgment [ # 18] is granted. It is
FURTHER ORDERED that plaintiff's motion for summary judgment [ # 28] is denied. It is
FURTHER ORDERED that plaintiff's motion for leave to file out of time [ # 29] is granted. And it is
FURTHER ORDERED that this case is dismissed.
United States District Judge