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Lucaj v. FBI, No. 14-12635, 2016 WL 319525 (E.D. Mich. Jan. 27, 2016) (Berg, J.)


Lucaj v. FBI, No. 14-12635, 2016 WL 319525 (E.D. Mich. Jan. 27, 2016) (Berg, J.)

Re: Request for records concerning plaintiff

Disposition: Granting defendant's motion for summary judgment

  • Exemption 5, "Inter-Agency or Intra Agency" Threshold Requirement, Attorney Work-Product Privilege & Deliberative Process Privilege:  First, "the Court finds that the documents were intra-agency communications based on the common interest doctrine."  "Here, both documents were requests for assistance from the OIA to foreign governments in furtherance of the government’s investigation of possible national security crimes."  "The foreign governments therefore had a common interest in the investigation of the potential crimes and were not in an adversarial position vis-à -vis the United States government."  "Under these circumstances, the Court finds that the common interest doctrine applies and that the communications between the OIA and the foreign governments constituted 'intra-government' communications."

The court then finds that "[h]ere, both documents were drafted by attorneys and are described as containing the DOJ’s legal theories, compiled factual summaries, interpretation of evidence, and the statutory basis of the investigation into Plaintiff’s actions."  "Because all of this constitutes attorney work-product, the Court cannot satisfy Plaintiff’s request to redact only the deliberative materials and require production of the remaining factual statements in the documents."  The court explains that "the work-product privilege covers both the factual summaries as well as the deliberative processes contained within the documents."

Last, the court finds that "[i]n addition to work-product, the documents also fall under the deliberative process privilege."  "The two documents at issue here are clearly pre-decisional as the government attorneys compiled them during their investigation of Plaintiff’s actions."  "Further, they should be considered deliberative because they contain legal theories, and the lawyers’ interpretation of the accrued evidence."  "Furthermore, the factual background is not segregable from the deliberative process content as both documents are short 8-page documents."  "Moreover, the release of these sensitive documents compiled during the course of an open investigation would 'expose' the agency’s decision-making process, ultimately hampering its ability to perform its functions."

Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Attorney Work-Product Privilege
Exemption 5, Deliberative Process Privilege
Exemption 5, Inter-Agency or Intra-Agency Threshold Requirement
Updated January 13, 2022