Rutigliano v. DOJ, No. 20-1407, 2021 WL 1921065 (2d Cir. May 13, 2021) (per curiam)

Rutigliano v. DOJ, No. 20-1407, 2021 WL 1921065 (2d Cir. May 13, 2021) (per curiam)

Re:  Request for prosecution declination memorandum

Disposition:  Affirming district court's grant of government's motion for summary judgment

• Exemption 5, Deliberative Process Privilege & Attorney Work-Product Privilege:  The Court of Appeals for the Second Circuit holds that "DOJ met its burden to show that the memorandum falls within the work product and/or deliberative process privileges."  "DOJ's declaration, which is 'sufficient to sustain the agency's burden' and 'accorded a presumption of good faith,' states facts supporting the applicability of both privilege doctrines."  "As stated in the DOJ declaration, the memorandum is attorney work product because it is a communication 'between the AUSA . . . and his supervisor' that contains the AUSA's 'personal evaluations and opinions pertinent to the investigation,' 'mental impressions,' and the office's 'investigative strategies,' all prepared in anticipation of litigation."  "Likewise, it is protected by the deliberative process privilege because it is a pre-decisional, intra-agency document memorializing 'deliberations concerning an assessment of the facts that were gathered during the Grand Jury investigation.'"  "The memorandum is exempt from FOIA disclosure under Exemption 5 because it is protected by the work product doctrine and the deliberative process privilege."  Responding to the requester's argument, the court finds that "FOIA does not include a special rule for Brady material."  "The district court thus properly dismissed [the requester's] complaint."
   
• Litigation Considerations, In Camera Inspection:  "[The Court of Appeals for the Second Circuit] rejects [the requester's] contention that the district court abused its discretion by not conducting an in camera review of the memorandum."  "'When the agency meets its burden by means of affidavits, in camera review is neither necessary nor appropriate.'"