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New York Times Co. v. U.S. Department of Justice

United States District Court, District of Columbia

October 20, 2017

THE NEW YORK TIMES COMPANY, et al., Plaintiffs,


          CHRISTOPHER R. COOPER United States District Judge.

         New York Times national security reporter Charlie Savage filed a Freedom of Information Act request with the Office of Legal Counsel of the U.S. Department of Justice seeking disclosure of a classified 1984 memorandum to the Attorney General from the then-Assistant Attorney General for OLC, Theodore Olson. The memorandum purportedly discusses the constitutionality of certain electronic surveillance activities contemplated by the National Security Agency. After the Department withheld the requested memo and an associated cover letter based on several FOIA exemptions, the Times and Savage filed suit. Both sides now move for summary judgment on a single question: are the Olson memo and its cover letter subject to the attorney-client privilege and therefore protected from disclosure by FOIA Exemption 5? The Court finds that Exemption 5 applies and will grant summary judgment in favor of the Department of Justice.

         I. Factual Background

         In October 2016, New York Times reporter Charlie Savage submitted a request under the Freedom of Information Act (“FOIA”) to the Office of Legal Counsel (“OLC”) seeking a specific document: “Memorandum for the Attorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1978, (May 24, 1984).” Def.'s Mem. Supp. Mot. Summ. J. (“Def.'s MSJ”) 2. Shortly thereafter, Savage amended his FOIA request to explicitly encompass both the document and its associated “cover letter” (collectively, the “Olson Memo”). Id.

         After OLC did not timely respond to his request, Savage and The New York Times Company (collectively “the Times”) brought suit in January 2017. Following the complaint, OLC informed the Times that it had identified two responsive documents, but that both documents were being withheld in full pursuant to Exemption 5 of FOIA and in part pursuant to Exemptions 1 and 3 of FOIA. Def.'s MSJ 3. On May 3, 2017, the Court issued a minute order bifurcating briefing on summary judgment. The parties subsequently filed cross-motions for summary judgment on the sole issue of whether Exemption 5 supported withholding the Olson Memo.

         II. Legal Background

         A party is entitled to summary judgment when the record shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in its favor. Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C. Cir. 2011). FOIA cases are typically and appropriately resolved on summary judgment. See, e.g., Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).

         When an agency withholds documents under one of the exemptions to FOIA, “[t]he burden is on the agency” to show that the documents “have not been improperly withheld.” U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). In addition, exemptions to FOIA are to be narrowly construed. See, e.g., Aqu Alliance v. U.S. Bureau of Reclamation, 856 F.3d 101, 103 (D.C. Cir. 2017).

         At issue here is FOIA Exemption 5, which permits the withholding of “inter-agency or intra-agency memorandums or letters that 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 essentially excludes from disclosure any materials that would be privileged from discovery in civil litigation, including, as relevant here, those protected by the attorney-client privilege. Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002).

         The attorney-client privilege protects the disclosure of confidential communications between attorneys and their clients. See, e.g., Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). The privilege thus “encourage[s] full and frank communication between attorneys and their clients and thereby promote[s] broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). However, the privilege does not protect all communications between an attorney and her client. Rather, it applies only to “[c]onfidential disclosures by a client to an attorney made in order to obtain legal assistance.” Fisher v. United States, 425 U.S. 391, 403 (1976). The privilege encompasses both a client's communications to his attorney and the attorney's “communication [to her client] based on confidential information provided by the client.” Schlefer v. United States, 702 F.2d 233, 245 (D.C. Cir. 1983). The attorney-client privilege fully applies to communications between government attorneys and the government officials and agencies to which they render legal service. See, e.g., Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997).

         III. Analysis

         The Department claims that the Olson Memo is protected under the attorney-client privilege and thus is subject to withholding under Exemption 5. The Times retorts that the memo is not privileged because (1) it contains no confidential client information and (2) it has not been kept confidential. Additionally, the Times contends that even if the Olson Memo falls under the attorney-client privilege, it is not protected by Exemption 5 because it has become the “working law” of the Department.

         A. Attorney-Client Privilege

         The Court agrees with the Department of Justice that the Olson Memo and its cover letter are exempted from disclosure under Exemption 5 because both fall within the scope of the attorney-client privilege. The Olson Memo is a classified memorandum purportedly containing legal advice to the Attorney General regarding intelligence activities contemplated by the National Security Agency (“NSA”). Def's MSJ Ex. 1 (“First Colborn Decl.”) ¶ 12. According to a declaration submitted by OLC Special Counsel Paul Colborn, it details legal advice given to the Attorney General based on confidential information provided by the NSA and was intended for and later transmitted to the NSA. Id. ¶ 16; Def.'s Opp'n Pls.' Cross-Mot. Partial Summ. J. Ex. A (“Second Colborn Decl.”) ¶¶ 2-3. This is a quintessential example of the sort of document that falls within the attorney-client privilege: advice from an attorney (the head of OLC) to his client (the Attorney General and, subsequently, the NSA) concerning the legal aspects of the client's contemplated actions and based on confidential information from the client concerning those contemplated actions. See, e.g., In re Sealed ...

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