Docufreedom Inc. v. DOJ, No. 17-2706, 2019 WL 3858166 (D. Ka. Aug. 16, 2019) (Crabtree, J.)

Docufreedom Inc. v. DOJ, No. 17-2706, 2019 WL 3858166 (D. Ka. Aug. 16, 2019) (Crabtree, J.)

Re:  Requests for DOJ Libraries Online Catalog

Disposition:  Granting in part and denying in part defendant's motion for summary judgment

• Waiver:  The court rejects plaintiff's "conten[tion] that none of the disputed records are exempt because they are publicly available."  "While the requested documents are government documents, they are not government publications."  "Under the Federal Depository Library Program, 'government publication' is defined to mean 'informational matter which is published as an individual document at Government expense, or as required by law.'"  "So, while these items may be in the Catalog of JMD-controlled libraries, it does not follow that each library item has been published."  "Instead, as [defendant] explains, the disputed documents are internally created materials."
   
• Exemption 5, Attorney Work-Product:  The court holds that several documents are withholdable.  The court relates that, "unlike a neutral summary, [these documents] offer[] more 'pointed advice' on 'the types of legal challenges likely to be mounted against [various issues].'"  "They are 'veritable "how to" manuals for building defenses and litigating' challenges . . . ."  "In short, disclosing these documents would benefit parties bringing claims against the United States . . . because it would provide the opposing party with 'the benefits of the agency's legal and factual research and reasoning, enabling [them] to litigate on wits borrowed from' DOJ."  However, "[t]he court directs DOJ to submit [certain items] for in camera review because the court cannot conclude with reasonable certainty that Exemption 5 applies to these items in full."  "The court concludes [that] generalized assertion[s] of privilege for [certain] documents . . . won't suffice."  Relatedly, regarding documents that are comprised of "training materials for prosecutors, [which] also serve an adversarial function," the court finds that these generally fall under the attorney work-product privilege.  For example, the court notes that defendant adequately explains why "criminal advocacy training" material is withholdable because "it explains how it serves an adversarial function – namely, it addresses strategies and techniques for different stages of a criminal prosecution including pretrial matters, jury selection, opening and closing statements, direct and cross examinations, and sentencing."  "But, the court reserves its summary judgment ruling based on the current record[]" because "'[i]n cases involving voluminous or lengthy work-product records . . . it [is] generally preferable for courts to make at least a preliminary assessment of the feasibility of segregating nonexempt material.'"  Finally, the court rejects defendant's assertion of Exemption 5 to cover a "'DOJ intranet page identifying 500 different legal issues and statutes, along with Civil Division attorneys with expertise and experience in those areas; intended to facilitate discussion among DOJ attorneys and serve as a reference to DOJ attorneys'" because "it was not prepared in anticipation of litigation."
   
• Exemption 5, Deliberative Process Privilege & Waiver:  The court holds that "[t]he government's failure to respond within the timeline set by FOIA thus enables a requester to seek review by the courts; but, it does not go so far as to operate as a waiver of the deliberative process privilege."  The court relates that "[plaintiff] first argues that any email sent more than 30 business days after its FOIA requests are not predecisional because DOJ already had constructively denied [plaintiff's] requests."  "[Plaintiff] cites no case law for this proposition, nor does the court find any."  "[Plaintiff's] argument is not persuasive."  "In FOIA cases, constructive exhaustion permits a requester to seek judicial review without an administrative appeal."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "discussions between JMD employees about responding to [plaintiff's] FOIA request" "fall squarely under the deliberative process privilege – namely, the discussions would demonstrate the 'give-and-take of the consultative process' in fashioning responses to FOIA requests."