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Novak v. DOJ, No. 11-0466, 2013 WL 530965 (D.D.C. Feb. 12, 2013) (Wilkins, J.)

Re: First party request for records on self Disposition: Granting Defendants' renewed motion for summary judgment and finding Exemptions 5 and 7E properly applied to the memoranda at issue
  • Exemption 5: The court holds that defendants properly withheld two internal memoranda "'prepared by attorneys discussing whether OSG should appeal a decision by the District Court to suppress evidence in a case involving Plaintiff'" under Exemption 5 pursuant to the attorney work product and deliberative process privileges. The court accepts the defendants' declaration asserting that since the records were prepared by attorneys during the criminal prosecution in order to advise the Solicitor General on whether to appeal the decision regarding suppression of evidence, the materials are protected under both the attorney-work product and deliberative process privileges. The court rejects plaintiff's argument that the materials may not be withheld because the arguments in them were made in court. At most, the court says this would mean that "OSG's final determination [was] publicly disclosed." The court explains that "Exemption 5 protects both the material prepared by an attorney in anticipation of litigation and the internal pre-decisional discussions within the agency leading to the OSG's final determination."
  • Exemption 7(E): The court finds that a memorandum from the Criminal Division's Witness Security and Special Operations Unit (WITSEC) to the FBI concerning the use of a federal prisoner in a criminal investigation was properly withheld pursuant to Exemption 7(E). The Criminal Division's declaration explained that the memorandum authorized the FBI to use the prisoner in its investigation and "'outlined the parameters'" of the prisoner's involvement. Accordingly, the court finds that release of the memorandum "would disclose guidelines for law enforcement investigations." The court further accepts the Criminal Division's explanation that even though the use of a cooperating inmate is not a secret technique, "[t]he WITSEC program largely operates in secret, and 'its effectiveness depends largely on protecting details about [its] operation.'"
  • Segregability: The court concludes that "[b]ased on all the supporting declarations and Vaughn indices filed in [the] case . . . the agencies adequately specify 'which portions of the document[s] are disclosable and which are allegedly exempt.'"
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 7(E)
Updated August 6, 2014