Louise Trauma Ctr. LLC v. DOJ, No. 20-3517, 2023 WL 6646335 (D.D.C. Oct. 12, 2023) (Contreras, J.)

Louise Trauma Ctr. LLC v. DOJ, No. 20-3517, 2023 WL 6646335 (D.D.C. Oct. 12, 2023) (Contreras, J.)

Re:  Request for records concerning agency’s handling of FOIA’s foreseeable harm requirement and related training for asylum officers

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

• Exemption 5, Attorney Work-Product Privilege:  “The Court begins with a ‘redacted page concerning “Certification in [DOJ’s Office of Immigration Litigation (“OIL”)] Cases” in a PowerPoint combining presentations titled, “Hot Topics in Criminal Immigration Litigation” and “Serious Nonpolitical Crime Bar and Interpol Red Notices.”’”  “With the benefit of in camera review of the redacted page, [released in part (“RIP”)] Page 61, the Court concludes that the second of two redacted bullet points is protected by the work product privilege because it reveals the ‘mental impressions and legal theories’ of an attorney, prepared in anticipation of litigation.”  “Therefore, the second bullet point on RIP Page 61 is exempt from FOIA disclosure under Exemption 5.”  “The first bullet point, however, is tantamount to a ‘neutral account[ ] of government policy,’ and, therefore, not protected as attorney work product.”  “Although neutral content can still reveal an attorney’s mental impressions when viewed in context, that is not the case for the first bullet point.”  “Accordingly, the Court grants the Government summary judgment with respect to the second redacted bullet point on RIP Page 61 but denies summary judgment with respect to the first redacted bullet point on RIP Page 61.”
  
  “The Court next turns to two pages redacted in part and two pages withheld in full from a presentation titled, ‘Crimmigration.’”  “With the benefit of in camera review, the Court holds that the redacted portion of RIP Page 8 is protected by the attorney work product privilege.”  “Although minimal information can be gleaned from the redacted bullet point, in the context of the presentation, the redacted bullet does convey the ‘mental processes of the attorney’ and is therefore protected by the work product privilege.”  “The redacted bullet points on RIP Page 9 and [withheld in full (“WIF”)] Page 32 are also protected by the attorney work product privilege because they likewise convey the mental impressions and legal strategy of an attorney in anticipation of litigation.”  “Therefore, the material in RIP Pages 8 and 9 and WIF Page 32 is exempt from disclosure under Exemption 5.”  “Accordingly, the Court grants summary judgment to DOJ with respect to RIP Pages 8, and 9 and WIF Page 32.”  “By contrast, the Court holds that WIF Page 33 does not represent the mental processes or impressions of an attorney prepared in anticipation of litigation.”  “This is so because the material on WIF Page 33 neutrally restates black letter law.”  “Although a lawyer’s selection of neutral law may reveal her focus, ‘opinion work product protection is warranted only if the selection or request reflects the attorney’s focus in a meaningful way.’”  “Therefore, the Court denies DOJ summary judgment with respect to WIF Page 33.”
   
• Exemption 5, Attorney Work-Product & Attorney-Client Privilege:  “DOJ has also claimed that Exemption 5 applies to several redactions ‘in a presentation titled “Professional Responsibility in Immigration Litigation.”’”  “Although DOJ initially asserted the attorney-client privilege as the basis for exempting these materials from disclosure, in its revised Vaughn Index, DOJ now includes the attorney work product privilege as a basis for this exemption as well.”  “Accordingly, the Court assesses whether the redacted materials are protected by either the attorney-client privilege or the attorney work product privilege.”  “After reviewing the redacted materials in camera, the Court holds that the majority of the redacted materials are protected by the attorney work product privilege because disclosure would ‘risk[ ] revealing DOJ’s litigation strategies and legal theories.’”  “Although the redacted and withheld slides often describe how to avoid violating ethical obligations, the information still falls within the ambit of the attorney work product privilege because it conveys DOJ’s strategy on how to litigate within ethical boundaries.”  “Because these redacted materials all provide an attorney's impressions and analyses on the appropriate way to approach or resolve specific legal situations that can arise in the course of immigration litigation, they are attorney work product and are exempt from disclosure under FOIA Exemption 5.”  “Accordingly, the Court grants summary judgment to DOJ with respect to these materials.”
  
  “[T]he Court holds that [one] redacted document . . . as well as the documents listed above are protected by the attorney-client privilege.”  “The redacted documents ‘suggest that ‘the Government is dealing with its attorneys as would any private party seeking advice to protect personal interests.’”  “This is so because the redacted documents primarily comprise questions and answers to those questions that implicate professional responsibility issues that DOJ attorneys face.”  “Because the information contained in the redacted slides rests on confidential information obtained from a client, it is protected by the attorney-client privilege and exempt from disclosure under Exemption 5.”
  
  “DOJ contends that the materials it has redacted from the presentation titled ‘Professional Responsibility Issues – OIL Litigation Part II’ are also protected by the attorney work product privilege and attorney-client privilege and therefore exempt from disclosure.”  “After in camera review of the redacted material, the Court holds that the redacted portions in this presentation are exempt from disclosure under Exemption 5; some are protected by the attorney work product privilege, while others are protected by attorney-client privilege.”  “The Court begins by noting the redactions that are covered by the attorney work product privilege.”  “[Certain pages] all provide an attorney’s advice on what DOJ line attorneys should do in various situations implicating ethical conduct rules in immigration litigation.”  “As such, the documents fall within the ‘“zone of privacy”’ that the attorney work product privilege provides attorneys to ‘think, plan, weigh facts and evidence, candidly evaluate a client's case, and prepare legal theories.’”  “RIP Page 53 is also protected as it presents an attorney’s litigation strategy advice related to handling ex parte communication.”
  
  “The remaining redacted pages . . . are protected by the attorney-client privilege rather than the attorney work product privilege.”  “Each of these redactions provides an attorney's advice on how to handle a legal situation that DOJ attorneys may face.”  “And DOJ has represented to the Court that the advice provided is based on confidential conversations between DOJ attorneys from the Professional Responsibility Advisory Office – as well as OIL’s Professional Responsibility Officer – and DOJ attorneys who have sought confidential advice on complying with ethics obligations.”
  
  Finally, the court finds that “[some documents] withheld documents in Tab E [of “a presentation titled, ‘Professional Responsibility Advisory Office Training PowerPoint’”] are protected by the attorney-client privilege and the work product privilege.”  “Although the Court will not address each document individually, each document either advises DOJ attorneys on how to perform in litigation – thereby constituting attorney work product – or else is based on confidential communications between DOJ line attorneys and DOJ attorneys who advise on professional responsibility issues.”
   
• Exemption 6:  First, regarding a withholding in the “presentation titled ‘Professional Responsibility Issues – OIL Litigation Part II,’” the court finds that “the redaction of an attorney’s phone number on the last page of the presentation is exempt from disclosure under Exemption 6, which covers ‘personnel . . . and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.’”
  
  “[T]he Court turns to material redacted and withheld in full from a presentation titled, ‘Professional Responsibility Advisory Office Training PowerPoint.’”  “Of the redacted and withheld documents, two documents . . . were redacted in part only.”  “Each of these redactions removes the name of a DOJ Legal Advisor – which would seemingly fall under Exemption 6.”  “Despite that, the revised Vaughn Index does not cite Exemption 6 as the justification for these redactions.”  “Nevertheless, because DOJ has previously relied on Exemption 6 to redact personnel information – and because releasing that information would harm the privacy interests of an individual DOJ attorney – the Court will infer that these names have been redacted pursuant to that Exemption.”  “Accordingly, summary judgment is granted to DOJ with respect to these two redactions.”
   
• Exemption 5, Deliberative Process Privilege, Attorney Work-Product Privilege & Attorney-Client Privilege:  The court considers the remaining pages withheld in the presentation titled “‘Professional Responsibility Advisory Office Training PowerPoint’” and, “[a]fter in camera review, the Court holds that [certain] WIF Pages are not protected by the attorney-client privilege, the attorney work product privilege, or the deliberative process privilege.”  “The withheld pages are not attorney work product.”  “As explained above, ‘neutral accounts of government policy that merely pertain to the subject of litigation in the abstract may not be privileged’ unless in context the information ‘would tend to reveal the lawyer's thoughts about which authorities are important and for which purposes.’”  “The materials that the Court holds not exempt here do not ‘tend to reveal the lawyer’s thoughts’ about which authorities are important in litigation.”  “Rather, many of the withheld slides are segregable as they merely quote verbatim or restate rules of ethics without indicating how the attorney is thinking about those rules or how those rules are relevant to contemplated immigration litigation.”  “Other slides are also segregable because they contain purely factual information that does not reveal an attorney’s mental process in contemplation of litigation.”
  
  “Nor are the withheld pages protected by the attorney-client privilege.”  The attorney-client privilege applies when the information shared by an attorney rests on confidential information provided by the client.”  “The Court cannot ‘infer confidentiality’ here because the information shared is purely neutral information or a restatement of ethical rules without any basis to believe that the information shared is based on confidential communications from the client.”  “In other words, disclosure of this material does not risk ‘inadvertent, indirect disclosure of the client’s confidences.’”
  
  “The deliberative process privilege does not apply either.”  “The deliberative process privilege protects documents that are both predecisional and deliberative.”  “The documents listed above . . . are not deliberative.”  “For instance, many of these documents merely restate or quote the model rules of professional conduct.”  “Rules of professional conduct are binding on attorneys and there is no deliberative aspect involved in these slides.”  “Accordingly, [these documents] are not exempt from disclosure under Exemption 5 and the Court denies summary judgment with respect to these withheld documents.”