Animal Welfare Inst. v. NOAA, No. 18-47, 2019 WL 1004042 (D.D.C. Feb. 28, 2019) (Kollar-Kotelly, J.)

Animal Welfare Inst. v. NOAA, No. 18-47, 2019 WL 1004042 (D.D.C. Feb. 28, 2019) (Kollar-Kotelly, J.)

Re:  Request for records from January 1, 2017 to May 1, 2017, regarding determination that clinical history and necropsy requirements of Public Display Permit for orca whale were extinguished by 1994 amendments to Marine Mammal Protection Act ("MMPA")

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 5, Attorney-Client Privilege:  "The Court concludes that the draft memorandum was rightfully withheld under Exemption 5 pursuant to attorney-client privilege."  "The draft memorandum was created by NOAA's Office of General Counsel following Defendants' request for legal advice and analysis concerning Plaintiff's Issue Paper."  "As such, the draft memorandum enjoys attorney-client privilege."  "This privilege was not waived when the draft memorandum was shared with [the Marine Mammal Commission ("MMC")] and [the Fish and Wildlife Services ("FWS")] as those agencies shared a common legal interest with Defendants."  On this final point, rejecting defendant's argument, "[t]he Court [does] conclu[de] that the consultant corollary expands the inter-agency or intra-agency requirement of Exemption 5 rather than the breadth of privilege . . . ."  "However, even if the consultant corollary is not applicable, the Court concludes Defendants' decision to share the draft memorandum with FWS and MMC did not waive the attorney-client privilege because all the agencies shared a common legal interest."  "The Court finds that Defendants and MMC shared a common legal interest in the proper administration of the MMPA as MMC is tasked with ensuring that all agencies, including Defendants, adhere to the requirements of the MMPA."'
   
• Exemption 5, Attorney Work-Product:  "[T]he Court concludes that the draft memorandum was prepared in anticipation of litigation."  "The draft memorandum was prepared in response to a request by the Director of the Office of Protected Resources within NMFS to NOAA's Office of General Counsel for legal advice and analysis of the arguments made in an Issue Paper submitted by Plaintiff."  "Accordingly, Defendants already held an established position which directly conflicted with the arguments in Plaintiff's Issue Paper."  "Defendants could have, and did, reasonably anticipate that Plaintiffs would use the legal arguments in their Issue Paper to initiate a lawsuit to force Defendants to reverse their position and to require [the] necropsy report."  "Accordingly, the Court concludes that the draft memorandum was prepared in anticipation of litigation."  The court clarifies that "it does not matter that Plaintiff had not made a specific threat of litigation against Defendants at the time the draft memorandum was prepared."  "With full knowledge of Plaintiff's interest and position, Defendants reasonably anticipated litigation and requested from counsel legal advice and analysis of the arguments made in Plaintiff's Issue Paper."
   
• Exemption 5:  The court holds that "[t]he fact that Defendants relied on the legal draft memorandum to support their conclusion that [the] necropsy report requirements had expired does not make the draft memorandum 'secret law.'"  The court explains that, "[g]iven the pre-existing policy of non-enforcement, the draft memorandum served not as a controlling statement of policy that Defendants relied on in discharging their mission."  "Instead, the draft memorandum constituted legal advice, created by NOAA counsel, advising Defendants of the legal ramifications of continuing their policy of non-enforcement in the face of the legal arguments contained in Plaintiff's Issue Paper."  In other words, the court explains, "[t]he draft memorandum did not establish the rationale for a new policy."  "Instead, the draft memorandum provided legal support for a policy that Defendants had adopted in practice since approximately 1994."