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Citizens for Responsibility and Ethics in Washington v. National Archives and Records Administration

June 7, 2010


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


The plaintiff filed this lawsuit on January 10, 2007, challenging the defendant's failure to produce records in response to its September 27, 2006 Freedom of Information Act ("FOIA") request. Citizens for Responsibility and Ethics in Wash. v. Nat'l Archives & Records Admin. ("CREW"), 583 F. Supp. 2d 146, 152-54 (D.D.C. 2008). The defendant filed a motion for summary judgment on May 7, 2007, Defendant's Motion for Summary Judgment ("Def.'s Mot."), which the plaintiff opposed on June 6, 2007, and also moved for summary judgment in its favor, Plaintiff's Motion for Summary Judgment ("Pl.'s Mot."). The Court granted in part and denied in part both cross-motions for summary judgment and ordered the defendant to provide certain documents to the Court for its in camera review to determine whether these documents should be disclosed to the plaintiff. CREW, 583 F. Supp. 2d at 168-69. Those documents were provided to the Court for its in camera review*fn2 and for the reasons set forth in this Memorandum Opinion, the Court must deny the plaintiff's request for the disclosure of the thirteen documents that remained in dispute following the issuance of the Court's earlier opinion.*fn3 Id. at 161-62.


Pursuant to this Court's Amended Order of October 28, 2008, the defendant filed the Second Supplemental Declaration of Gary M. Stern on November 26, 2008, to further explain and support its partial withholding of document 3 and to supplement Mr. Stern's declarations of May 7 and June 21, 2007, with regard to documents 13 and 14. Defendant's Notice of Filing and In Camera Submission ("Def.'s Notice"); id. at Ex. 1 (Second Supplemental Declaration of Gary M. Stern ("Second Supp. Stern Decl.")) ¶ 1. Additionally, pursuant to the October 28, 2008 Order, the defendant submitted for the Court's in camera review documents 12-15, 16-18, 18a, 24, 26-27, and 29-30 as listed in its Vaughn Index, to resolve this Court's concerns regarding the basis upon which these documents had been withheld. Def.'s Notice at 1.

The defendant relies upon two privileges as support for its full or partial withholding of the thirteen documents the plaintiff seeks pursuant to the FOIA, twelve of which the Court ordered produced for its in camera inspection.*fn4 Def.'s Mem. at 7-11. Specifically, the defendant asserts that some of the undisclosed information is protected from disclosure by the deliberative process privilege of Exemption 5 of the FOIA, Def.'s Reply at 1, and that it is not required to release any further portions of documents 12-15, 16-18, 18a, 24, 27, and 29-30 because Exemption 5 of the FOIA also shields from disclosure attorney work-product, id. at 6, 10, 14-17, 22, 24. The plaintiff challenges the defendant's reliance on both privileges. See generally Pl.'s Reply.


A. Exemption 5 of the FOIA

Exemption 5 of the FOIA provides that "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" are not subject to disclosure under the FOIA. 5 U.S.C. § 552(b)(5). In order for an agency to prevail under the privilege against disclosure of an agency document, the document's "source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it." Dep't of Interior & Bureau of Indian Affairs v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001). And "the parameters of Exemption 5 are determined by reference to the protections available to litigants in civil discovery; if material is not 'available' in discovery, it may be withheld from FOIA requesters." Burka v. Dep't of Health & Human Servs., 87 F.3d 508, 516 (D.C. Cir. 1996). In other words, if a document would not be subject to disclosure in the civil discovery context, it is exempt from disclosure under the FOIA. Id. On the other hand, if a document would be subject to disclosure in the civil discovery context, it must be disclosed under the FOIA. Id. Thus, Exemption 5 has been construed "to exempt those documents, and only those documents, normally privileged in the civil discovery context," those privileges being:

(1) the deliberative process privilege "(sometimes referred to as 'executive privilege')"; (2) the attorney-client privilege; and (3) the attorney work-product privilege. NLRB v. Sears, Roebuck, & Co., 421 U.S. 132, 148-49 (1975); see also Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862, 864-66 (D.C. Cir. 1980). Only the work-product and deliberative process privileges are at issue here.

i. Attorney Work-Product Privilege

As noted in this Court's prior memorandum opinion in this case, CREW, 583 F. Supp. 2d at 158, the attorney work-product privilege is properly asserted as grounds for withholding "documents prepared in contemplation of litigation." Coastal States, 617 F.2d at 864. The purpose of the privilege is to "provide[] a working attorney with a 'zone of privacy' within which to think, plan, weigh facts and evidence... and prepare legal theories" without fear that the information will be disclosed in litigation. Id. However, the "work-product rule does not extend to every written document generated by an attorney [or] shield from disclosure everything that a lawyer does." Id. Instead, it is only applicable to "materials 'prepared in anticipation of litigation or for trial.'" Id. (quoting Jordan v. Dep't of Justice, 591 F.2d 753, 775 (1978)).

Where the work-product privilege is relied upon as the basis of nondisclosure (unlike the deliberative process privilege), "any part of a document prepared in anticipation of litigation... is protected by the work product doctrine and falls under exemption 5." Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005) (internal quotation marks omitted) (quoting Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997)). Specifically, "factual material is itself privileged when it appears within documents that are attorney work product. If a document is fully protected as work product, then segregability is not required." Id.

ii. The Deliberative Process Privilege

This Court also discussed the deliberative process privilege in its earlier memorandum opinion in this case, CREW, 583 F. Supp. 2d at 156-57, so only a brief review of this privilege is necessary here. The deliberative process privilege exists to protect from disclosure "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Sears, Roebuck, 421 U.S. at 150 (internal quotation marks omitted), cited in Klamath, 532 U.S. at 8. It is designed to promote "candid discussion within the agency," and its decisionmaking process which advances "the agency's ability to perform its functions." ...

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