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Citizens for Responsibility and Ethics in Washington v. Office of Administration

May 5, 2008

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PLAINTIFF,
v.
OFFICE OF ADMINISTRATION, DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Currently pending before the Court is [43] Plaintiff Citizens for Responsibility and Ethics in Washington's ("CREW") Motion to Compel or Alternatively to Amend the Court's Order of March 30, 2008 to Require Defendant to Produce the [Office of Legal Counsel ("OLC"), Department of Justice ("DOJ")] Opinion Addressing [the Office of Administration, Executive Office of the President's ("OA")] Agency Status. Defendant OA opposes CREW's Motion. As suggested in CREW's Reply in support of its Motion, the Court has reviewed the OLC memorandum at issue in camera, and concludes that it falls within the scope of the deliberative process discovery privilege. The Court shall therefore DENY [43] CREW's Motion to Compel.

I. BACKGROUND

On March 30, 2008, following a conference call on the record with counsel for both parties participating, the Court entered an Order regarding CREW's [37] March 21, 2008 Motion to Compel, which sought the production of documents reflecting the date or dates on which OA stopped functioning as an agency subject to FOIA, the Federal Records Act ("FRA"), and any other federal statute, and started functioning as an entity subject to the Presidential Records Act ("PRA"). See Order, Docket No. [41]. The Court's March 30, 2008 Order required OA to produce either the actual document or a privilege log regarding any document(s) in OA's possession or control reflecting (1) OA's final decision regarding whether OA is an agency subject to FOIA; and (2) OA's final determination that it is subject to the PRA rather than the FRA. Id. The Court's Order also set forth dates for briefing in the event that OA asserted a claim of privilege, and further required that OA submit an affidavit setting forth the answers to a number of questions posed by the Court during the conference call on the record. Id.

On April 7, 2008, OA submitted a Response to the Court's March 30, 2008 Order, in which it advised the Court that: it does not have a document that represents the final decision that OA is not subject to FOIA. Defendant notes, however, that the final decision on that issue was made on August 21, 2007, and that defendant's prior motion for judgment on the pleadings filed in this case on August 21, 2007 reflects that final decision. Defendant further notes that prior to the filing of that motion, [OLC] had provided legal advice to the White House Counsel's Office regarding OA's status under FOIA. That legal advice was formalized in a memorandum to the White House Counsel's Office dated August 21, 2007. OLC's advisory memorandum was not the final decision and is therefore not responsive to the Court's instructions during the conference call on March 28, 2008 and under the Court's Order of March 30, 2008.

Def.'s Resp. to Court's March 30, 2008 Order, Docket No. [42], at 1-2.

On March 14, 2008, CREW filed its Motion to Compel or Alternatively to Amend the Court's Order of March 30, 2008 to Require Defendant to Produce the OLC Opinion Addressing OA's Agency Status. See Docket No. [43]. OA filed its Opposition to CREW's Motion to Compel, along with a supporting Declaration of M. Elizabeth Medaglia in Response to the Court's Order of March 30, 2008 (which also serves as OA's affidavit required by the Court's March 30, 2008). See Docket No. [44], Docket No. [44-2] ("Medaglia Decl."). Ms. Medaglia is the General Counsel of OA, and has held that position since May 14, 2007. Medaglia Decl. ¶ 2. CREW filed its Reply in support of its Motion to Compel on April 23, 2008. CREW's Reply suggested that the Court review the August 21, 2007 OLC memorandum at issue (hereinafter the "OLC Memo") in camera in order to evaluate OA's claims that the memo may be withheld under either the attorney-client privilege or the deliberative process privilege. The Court accepted CREW's suggestion, and on April 28, 2008, issued a Minute Order requiring OA to produce the OLC Memo in camera, ex parte and under seal for the Court's review.*fn1 The Court has now reviewed the OLC Memo.

II. DISCUSSION

Rule 26(b)(1) of the Federal Rules of Civil Procedure authorizes "discovery regarding any non-privileged matter that is relevant to any party's claim or defense," and further explains that "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). The Court has already concluded--during the March 28, 2008 conference call on the record in this case and in the Court's March 30, 2008 Order--that when OA stopped functioning as an agency under FOIA and the FRA is relevant insofar as it provides "context" for OA's defense that it is not an agency subject to FOIA. See CREW Mot. to Compel, Ex. A (Tr. of 3/28/08 Conf. Call) at 4:16- 25. Drawing upon this conclusion, CREW's Motion to Compel suggests that the OLC Memo is probative of when OA stopped functioning as an agency under FOIA, and thus must be produced in response to CREW's limited discovery requests.

In support of its Motion to Compel, CREW argues that "absent a separate written final decision from OA, the OLC [Memo] is the final executive branch decision on OA's agency status," and cannot be withheld pursuant to either the attorney-client privilege or the deliberative process privilege. See generally CREW Mot. to Compel. OA responds that the OLC Memo is not the "final agency decision" regarding OA's status under FOIA, and further argues that the OLC Memo is shielded from disclosure by both the deliberative process privilege and the attorney-client privilege. See generally OA Opp'n. The Court briefly addresses and rejects OA's claim that the attorney-client privilege applies to the OLC Memo, before turning to OA's argument that the deliberative process privilege applies.

A. The OLC Memo Is Not Covered By the Attorney-Client Privilege

In its Opposition to CREW's Motion to Compel, OA claims that the OLC Memo is protected by the attorney-client privilege. In support of this claim, OA asserts that "OLC, in effect, serves as outside counsel to the Executive Branch," that the OLC Memo "contains confidential legal advice provided by OLC to the White House Counsel's Office," and that the "substance of the OLC [Memo] has not been disclosed outside the Executive Branch and has remained confidential." OA Opp'n at 3-5 (citing www.usdoj.gov/olc). OA's assertions in this respect are supported by Ms. Medaglia's Declaration. See Medaglia Decl. ¶¶ 6, 8.

"The attorney-client privilege protects confidential communications from clients to their attorneys made for the purpose of securing legal advice or services." Tax Analysts v. Internal Revenue Service, 117 F.3d 607, 618 (D.C. Cir. 1997) (citing In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984)). The attorney-client privilege also "protects communications from attorneys to their clients," however only "if the communications 'rest on confidential information obtained from the client.'" Tax Analysts, 117 F.3d at 618 (quoting In re Sealed Case, 737 F.2d at 98-99); see also Mead Data Cent. v. United States Dep't of Air Force, 566 F.2d 242, 254 (D.C. Cir. 1977).

The Court's in camera review of the OLC Memo reveals that it does not rest upon confidential information obtained from OA, and thus is not covered by the attorney-client privilege. Rather, the OLC Memo rests upon the same basic factual information as the Motion for Judgment on the Pleadings that OA filed in this Court on August 21, 2007. The Court therefore ...


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