New York Times Co. v. DOJ, No. 14-3777, 2015 WL 5729976 (S.D.N.Y. Sept. 30, 2015) (Oetken, J.)

New York Times Co. v. DOJ, No. 14-3777, 2015 WL 5729976 (S.D.N.Y. Sept. 30, 2015) (Oetken, J.)

Re: Request for records concerning DOJ investigation into destruction of videotapes of CIA interrogations and into deaths of detainees in CIA custody

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for partial summary judgment

• Exemption 5, Attorney Work-Product:  The court finds "that witness statements are sometimes but not always work product."  "They are work product when they reveal an attorney’s strategic impressions and mental processes."  "This revelation could occur through the attorney’s mere selection of whom to interview, even where the content of the interview may not be work product itself."  Based on this reasoning, the court concludes that certain reports generated in connection with investigations "are exempt from disclosure under FOIA Exemption Five." Then, "[t]he Court concludes . . . that express adoption doctrine applies to the work-product doctrine."  The court explains that "[i]f publicly adopting a document vitiates the purposes of the attorney-client privilege, it is hard to see why it ought not to do the same to the work product doctrine."  The court then finds that certain documents were not expressly adopted by defendant because defendant's statements were "insufficient to adopt the reasoning" of the document.  "DOJ did not publicly justify its decision not to pursue charges at all, let alone justify that decision with the contents of an undisclosed memorandum."  Additionally, "DOJ has yet to publicly announce the results of the obstruction investigation at all, let alone explain those results with reasoning from a secret document."  However, the court finds that some documents were expressly adopted by defendant because "[t]he Attorney General’s June 2011 statement manifested DOJ’s adoption of [an AUSA's] Final Recommendation Report and Supplemental Reports."  Additionally, "[b]ecause DOJ relied on [the AUSA's] reasoning in explaining its decision not to prosecute, the Court concludes that the Declination Memoranda were "expressly adopted" and are therefore subject to disclosure under FOIA."