N.Y. Times Co. v. DOJ, No. 17-00087, 2017 WL 4772406 (D.D.C. Oct. 20, 2017) (Cooper, J.)

N.Y. Times Co. v. DOJ, No. 17-00087, 2017 WL 4772406 (D.D.C. Oct. 20, 2017) (Cooper, J.)

Re:  Request for classified 1984 memorandum to Attorney General from then-Assistant Attorney General for OLC, Theodore Olson, purportedly discussing constitutionality of certain electronic surveillance activities contemplated by NSA

Disposition:  Granting defendant's motion for summary judgment

• Exemption 5, Attorney-Client Privilege:  "The Court agrees with the Department of Justice that the Olson Memo and its cover letter are exempted from disclosure under Exemption 5 because both fall within the scope of the attorney-client privilege."  The court finds that "[t]his is a quintessential example of the sort of document that falls within the attorney-client privilege: advice from an attorney (the head of OLC) to his client (the Attorney General and, subsequently, the NSA) concerning the legal aspects of the client's contemplated actions and based on confidential information from the client concerning those contemplated actions."  In response to plaintiff's "conten[tion] that the Olson Memo does not contain confidential client information because the Attorney General, not the NSA, is OLC's client for purposes of the memo[,]" the court finds that "OLC helps the Attorney General provide legal advice to his client agencies, much as one attorney in a law firm might help her colleague in the firm provide advice to the firm’s client."  "Yet no one would contend that the firm's client has somehow ceased being a client and has instead become a third party if the attorney writes her colleague a memo with advice regarding the firm client’s proposed actions."  "So too here."  In response to plaintiff's "argu[ment] that any attorney-client privilege has been extinguished because the Olson Memo has not been kept confidential[,]" the court finds that plaintiff's proof "simply indicate[s] that some attorneys within the Department of Justice – indeed, within OLC – had access to the Olson Memo, not that the memo has been widely disseminated within the Department to attorneys not representing the NSA, let alone beyond the Department, in such a manner as to waive privilege."
  
  Also in response to plaintiff's working law arguments, the court finds that "[t]he Olson Memo . . . 'amount[ed] to advice offered by OLC for consideration by' the Attorney General and the NSA."  "OLC 'is not authorized to make decisions about' the NSA's activities or the Attorney General's approval thereof."  Additionally, "the Attorney General and NSA were 'free to decline to adopt' the reasoning or conclusions of the OLC opinion."  "Therefore, absent additional evidence that the Attorney General or NSA has affirmatively adopted the Olson Memo as their own policy and reasoning, [the court finds that] the Olson Memo does not constitute working law."  Also, the court finds that "neither of [the] two citations [to the public record provided by plaintiff] show that the Attorney General or the NSA has 'publicly invoked the reasoning of the OLC memorandum' to defend any agency policy or action."