United States District Court, District of Columbia
CHRISTOPHER R. COOPER United States District Judge.
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.
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.
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.
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).
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).
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).
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).
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.
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