N.Y. Times Co. v. DOJ, No. 17-2066, 2019 WL 4727049 (2d. Cir. Sept. 27, 2019) (Rakoff, J.)

N.Y. Times Co. v. DOJ, No. 17-2066, 2019 WL 4727049 (2d. Cir. Sept. 27, 2019) (Rakoff, J.)

Re:  Request for records concerning decisions to not open formal criminal investigations in all but two instances of alleged mistreatment of detainees overseas, and to not pursue criminal charges in those two cases

Disposition:  Affirming in part, reversing in part and remanding district court's grant in part and denial in part of parties' cross-motions for summary judgment

• Exemption 5, Attorney Work-Product Privilege & Waiver and Discretionary Disclosure, Waiver:  The Court of Appeals for the Second Circuit relates that "[i]t is not disputed here that [a United States Attorney's] memoranda were attorney work product at the time they were drafted, in part because [the United States Attorney] prepared them in anticipation of possible criminal prosecutions."  First, responding to the requester's argument, the court holds that "an 'express adoption' inquiry is only relevant insofar as the previously-privileged intra-agency document has become binding 'working law.'"  "In the instant case, [the United States Attorney's] recommendations to [the former Attorney General] on whether to formally investigate and/or criminally prosecute specific instances of alleged CIA wrongdoing – even if expressly adopted by [the former Attorney General] in his final decision – are not binding on the public, and thus cannot constitute the 'working law' of the Department of Justice."  "Because of the inherently discretionary and non-precedential nature of prosecutorial determinations, [the United States Attorney's] recommendations in this case bear little or no relevance to any other potential defendant in any other case."  Second, regarding the requester's waiver argument, the court "hold[s] that the government waived the privilege over the sections of the memoranda and exhibits relating to the conclusion that a number of the detainees investigated were not in CIA custody."  The court explains that "in his June 30, 2011 statement, [the former Attorney General] explained that '[the United States Attorney] examined any possible CIA involvement with the interrogation of 101 detainees who were in United States custody subsequent to the terrorist attacks of September 11, 2001, a number of whom were determined by [the United States Attorney] to have never been in CIA custody' (emphasis supplied)."  "Then, in his July 11, 2012 public statement, [the former Attorney General] said again that [the United States Attorney] 'determined that a number of the detainees were never in CIA custody.'"  "[The court] find[s] these statements to be sufficiently specific that they are tantamount to public disclosure of the parts of the relevant memoranda that relate to this finding."  As to the remainder of the statements highlighted by plaintiff, "[the court] think[s] that none of these statements divulges the content of the memoranda with enough specificity to constitute waiver of the work product privilege."  "The first statement is not a statement about the content of the report at all, but rather an acknowledgement that DOJ, after considering the report, concluded that the admissible evidence would not be sufficient to obtain a conviction."  "The second statement plaintiffs identify is likewise not a statement about the contents of the memoranda, but a statement about what [the former Attorney General] told [the United States Attorney]."  "The third statement, although it does broadly outline how [the United States Attorney] approached his investigation, is too vague and general to have effected waiver of the work product privilege."  Finally, "[i]n [the court's] view, [the former Attorney General's] references to [the United States Attorney's] reports, although clearly spoken with an intent to explain the Department's decision not to prosecute, do not constitute 'testimonial use' of the reports and therefore do not waive the work product privilege over the documents."