Nat'l Ass'n of Criminal Def. Lawyers v. EOUSA, No. 14-269, 2014 WL 7205392 (D.D.C. Dec. 18, 2014) (Kollar-Kotelly, J.)
Re: Request for DOJ's Federal Criminal Discovery Manual, or "Blue Book"
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment
- Exemption 5, Attorney Work-Product Privilege: "Based on the Court's in camera review, the Court finds, for the reasons given below, that the Blue Book constitutes attorney-work product and is exempt in its entirety under FOIA Exemption 5." Because there was disagreement on the contents of the manual, the court first explains that "[t]he Blue Book is a 'litigation manual' available only to DOJ personnel that 'advise[s] federal prosecutors on the legal sources of their discovery obligations as well as the types of discovery related claims and issues that they would confront in criminal investigations and prosecutions.'" Next, "[t]he Court finds the function of the Blue Book analogous to other agency manuals and memoranda which courts in this Circuit have found to be 'prepared in anticipation of litigation.'" The court explains that "the Blue Book provides background information and instructions on discovery practices and advice, strategy, and defenses for litigation related to the government's discovery obligations to attorneys who will be required to litigate on the government's behalf." "Although the Blue Book does contain general background information and agency policies regarding the government's discovery obligations, the Court finds that it contains sufficient advice and litigation strategy for use in actual litigation to qualify as attorney work-product." "Finally, the Court rejects Plaintiff's argument that the Blue Book must be disclosed pursuant to 5 U.S.C. § 552(a)(2) because it constitutes the DOJ's 'working law' or 'secret law' with respect to the government's discovery obligations." The court explains that "simply because the DOJ decided to police discovery obligations internally instead of through passage of federal legislation does not transfer the agency's internal policing manual into agency working law" and, "even if the Blue Book constitutes or contains the DOJ's working law, which, pursuant to § 552(a)(2), must proactively be disclosed, FOIA 'expressly states . . . that the disclosure obligation 'does not apply' to those documents described in the nine enumerated exempted categories listed in § 552(b),' which includes Exemption 5." "As the Court finds the Blue Book is exempt from disclosure pursuant to FOIA Exemption 5, the Court need not reach the DOJ's alternative basis for withholding the Blue Book – Exemption 7(E)."
Procedural Considerations, "Reasonably Segregable" Obligation: The court finds that because "the Blue Book is fully protected, Defendants are not required to evaluate whether all reasonably segregable portions of the requested document have been released."