Nat'l Ass'n of Criminal Def. Lawyers v. EOUSA, No. 15-5051, 2016 WL 3902666 (D.C. Cir. July 19, 2016) (Srinivasan, J.)
Re: Request for federal criminal discovery manual
Disposition: Affirming district court's grant of government's motion for summary judgment
- Exemption 5, Attorney Work-Product: The Court of Appeals for the District of Columbia Circuit "find[s] that the Blue Book falls within the attorney work-product privilege and therefore is exempt from disclosure under FOIA's Exemption 5." "As a result, [the court], like the district court, [has] no need to address the applicability of Exemption 7(E)." The court agrees with EOUSA that the manual "was 'created in anticipation of reasonably foreseeable litigation,' namely, federal criminal prosecutions." Additionally, the court agrees that the manual "is not a 'neutral analysis of the law' but rather 'contain[s] confidential legal analysis and strategies to support the Government's investigations and prosecutions.'" The court also agrees that "disclosing the [manual] would 'essentially provide a road map to the strategies federal prosecutors employ in criminal cases.'" Responding to the requester's contention that a specific claim is required for this privilege, the court finds that "[a] specific-claim requirement would make little sense in the context of the [manual]." The court explains that "[i]t was prepared with the litigation of all charges and all cases in mind." "The presence or absence of a specific claim or transaction might be a helpful consideration in the context of an agency compliance inquiry with no enforcement action or litigation necessarily on the horizon." "But it is an unhelpful consideration here given that the [manual] undoubtedly was created in anticipation of – and for use in – foreseeable litigation, i.e., federal criminal prosecutions." Responding to the requester's contention that the manual is "aim[ed] to advance a non-adversarial function," the court finds that "insofar as the Blue Book might also serve non-adversarial functions, 'a document can contain protected work-product material even though it serves multiple purposes, so long as the protected material was prepared because of the prospect of litigation.'" Responding to the requester's contention that the manual is "a neutral recitation of legal rules or case law in the manner of a treatise," the court finds that "the Blue Book imparts litigation strategy to government lawyers" and "thus consists of exactly the 'sort of information – prepared in anticipation of litigation – [which] falls within the attorney work-product privilege[.]'" As a final matter, the court finds, "having reviewed the Blue Book in camera, . . . that its strategic advice – which is unquestionably work product – is integrated in the document to an extent that the Book is not amenable to reasonable segregation of any non-exempt material."
Judge Sentelle, writing separately states that he "concur[s] in the decision of the majority, not because [he] believe[s] it to be the correct result, but because [he] [is] compelled to do so by precedent." Judge Sentelle "grant[s] that it is possible to interpret Exemption 5 broadly[, but] that does not mean it is appropriate to do so."