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Savage v. DOJ, No. 22-2477, 2024 WL 2880438 (D.D.C. June 7, 2024) (Boasberg, C.J.)


Savage v. DOJ, No. 22-2477, 2024 WL 2880438 (D.D.C. June 7, 2024) (Boasberg, C.J.)

Re:  Request for FBI interview memoranda as well as reports from former Acting U.S. Attorney John Durham related to the criminal investigation into CIA’s rendition, detention, and interrogation program following 9/11

Disposition:  Granting defendant’s motion for partial summary judgment; denying plaintiffs’ motion for partial summary judgment

  • Litigation Considerations, Mootness and Other Grounds for Dismissal & Waiver and Discretionary Disclosure, Waiver:  The court first relates that “[i]t is important to bear in mind that Plaintiffs have no quarrel with the general applicability of the privileges to all ten reports.”  “They challenge only DOJ’s application of the ‘foreseeable-harm’ standard to the documents.”  “This case, accordingly, centers on whether Justice has sufficiently articulated a harm – as to all the reports – meeting the foregoing standard.”  “The parties have raised two threshold issues, however, that could potentially obviate the need to consider that question:  (1) Is this lawsuit precluded by the judgment entered in the Southern District of New York? (2) Are the reports (or portions thereof) already in the public domain, thereby waiving any assertion of privilege?”

    First, the court relates that “Justice initially argues that Plaintiffs’ claims are all precluded ‘by virtue of the 2014 litigation before the Southern District of New York and the United States Court of Appeals for the Second Circuit.’”  The court finds that “[t]he doctrine of claim preclusion provides that ‘a final judgment forecloses successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.’”  “‘Issue preclusion, in contrast, bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim.’”  “There is clearly no claim- or issue-preclusive effect as to [one plaintiff] because he was not a party in the New York case, and no recognized basis for nonparty preclusion applies here.”  “Insisting otherwise, DOJ points to two:  first, [one plaintiff], as a former writer for The Times, has a preexisting ‘substantive legal relationship’ with the company, and second, his interests were otherwise ‘adequately represented’ by it previously.”  “But Justice cites no case in which a prior employment relationship was deemed to have created an identity of interests so strong as to preclude a later suit by employer or employee.”  “And an employment relationship bears no resemblance to the kinds of ties that have previously been found to merit preclusion.”  “Nor was [that one plaintiff] ‘adequately represented’ because there is no evidence that The Times and [that one plaintiff] ‘understood [themselves] to be acting in a representative capacity’ for him in their earlier litigation or that the New York courts ‘took care to protect [that one plaintiff’s] interests.’”  “At the least, then, [one plaintiff] may press this suit forward on his own.”  “In any event, for all parties, this lawsuit presents issues and claims that were not (and could not have been) raised at the time the New York suit was filed in May 2014.”  “The sole issues here are whether certain public disclosures postdating that suit have waived DOJ’s asserted privileges and whether Defendant has met the foreseeable-harm requirement introduced by an act of Congress in 2016.”  “Plaintiffs’ only claims arise from Justice’s refusal to provide documents in response to their separate FOIA requests in June 2022 – a refusal made in the context of a reconfigured factual and legal landscape.”  “Even without [the one plaintiff], ergo, this lawsuit would not be precluded.”

    “Next up is Plaintiffs’ contention that DOJ’s across-the-board withholding is untenable because parts of the Durham reports have now entered the public domain.”  “They identify four relevant disclosures.”  “The first is the partial declassification of a report by the Senate Select Committee on Intelligence (SSCI) on the CIA’s rendition, detention, and interrogation program in December 2014.”  “The second is the public testimony of a psychologist . . . – whom Plaintiffs consider ‘a key architect’ of that program – at Guantanamo Bay military commission proceedings in 2020 and 2022.”  “Third is the release over time of certain portions of CIA Inspector General reports on the use of enhanced interrogation techniques on specific detainees.”  “The first such report was partially declassified in piecemeal fashion between 2008 and 2016, and the second was partially declassified in 2022.”  “Finally, Plaintiffs point to a 2011 memoir by [a] former FBI agent . . . describing his interrogations of detainees, which the CIA allowed to be published without redactions in 2020.”  “Although Plaintiffs admit that ‘it is impossible [for them] to know precisely how much of the [withheld] information is in the public domain,’ they maintain that some of it is bound to overlap with the four aforementioned disclosures, given that they cover the same (or similar) subject matter.”  “This argument can be dispensed with quickly.”  “[A] disclosure is not deemed ‘official’ if it is ‘made by someone other than the agency from which the information is being sought.’”  “Plaintiffs’ position falters (most obviously) on this official-disclosure requirement because none of the four proffered disclosures can be attributed to the Department of Justice.”  “In a last-ditch appeal to ‘common sense,’ Plaintiffs accept the ‘general rule’ that ‘“a third party agency’s disclosures cannot waive the asserting agency’s right to [withhold],”’ but maintain that ‘such disclosures may well shift the factual groundwork upon which a district court assesses the merits of such a response, revealing the futility of withholding when extensive official disclosures have been made.’”  “This point seems orthogonal to the issue at hand: whether the public-domain doctrine applies.”  “Because Plaintiffs have not identified an official disclosure by DOJ, the answer is assuredly no.”
  • Exemption 5, Foreseeable Harm and Other Considerations; Litigation Considerations, Evidentiary Showing, Foreseeable Harm Showing & “Reasonably Segregable” ShowingThe court relates that “DOJ has asserted attorney-work-product privilege as to every document it withheld and the deliberative-process privilege as to some of them.”  “Because the Court ultimately finds that for every report or segregable portion thereof, there is some reasonably foreseeable harm from disclosure associated with the former privilege, it so limits its analysis.”  “The Government contends, as a preliminary matter, that the burden of establishing foreseeable harm is ‘lower’ for the work-product privilege than it is for deliberative process because the ‘risk of harm through disclosure is more self-evident and the potential for agency overuse is attenuated.’”  “Plaintiffs, for their part, rejoin that there is no statutory basis for that distinction and that the ‘foreseeable harm provision applies with equal force to all discretionary withholdings.’”  “If the Government means to suggest that disclosure of work product is ipso facto harmful, such that a generic recitation of interests the privilege protects will discharge its obligations under FOIA, then Plaintiffs are certainly right to object.”  “If, however, the Government means that the Court’s review of whatever harm an agency articulates with respect to the deliberative-process privilege will be comparatively more exacting, the argument is sound given Congress’s focus on the overuse of that privilege, . . . which our Circuit and other courts in this district have repeatedly acknowledged.”  “Although DOJ’s description of the relevant harm is hardly a paragon of specificity, our Circuit has nevertheless upheld agency withholdings where the ‘very context and purpose’ of the sought-after documents ‘make the foreseeability of harm manifest.’”  “Such is the case here, where the documents contain attorney impressions going to core legal strategy rather than, for instance, discussion of ancillary procedural matters.”  “The general content of each report is scrupulously described in John Durham’s declaration, which was originally prepared for the New York case.”  “Given that each report contains Department attorneys’ opinions on highly sensitive issues, including the strengths and weaknesses of potential criminal charges and the weight of evidence, it is obvious that harm would result from their wholesale disclosure.”  “A lawyer — no less a federal prosecutor — requires a ‘certain degree of privacy’ to ‘sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy.’”  “Were the records of those thoughts routinely made public, ‘[i]nefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial.’”  “Because the Durham reports primarily reflect such sifting and strategizing, it seems clear that these ills would follow if they were all disclosed in full, notwithstanding the vagueness of Defendant’s representations on this issue.”

    “Resisting this conclusion, Plaintiffs raise a number of other relevant considerations that they think counsel a different conclusion.”  “First, they highlight that Durham’s were high-profile investigations and note that DOJ has a recent history of publicly releasing special-counsel reports in similar circumstances.”  “Durham, however, conducted the investigations in his capacity as the Acting United States Attorney for the Eastern District of Virginia – not as a ‘special counsel’ within the meaning of 28 C.F.R. § 600, et seq. – which, as Justice explains, places him ‘among the far more common pool of career Department attorneys appointed to specially investigate and, if necessary, prosecute a sensitive matter.’”  “Even if the public disclosure of special-counsel reports is routine (rare though such appointments are), there is little reason to believe that other career Department officials would, for that reason, expect the records of their own sensitive investigations to be released to the public.”  “Plaintiffs also contend that there can be no foreseeable harm to the extent that information contained in the reports is already public.”  “But even if public records contain some information about what the CIA did or did not do – which Plaintiffs reasonably infer the Durham reports would likely also contain – there has been no official confirmation by Justice that the information is true (or not true), or of the role that specific information may have played in its investigative and prosecutorial decisions.”  “Indeed, this Circuit’s public-domain caselaw includes an official-disclosure requirement because such confirmation can be informative in itself.”

    “Plaintiffs’ last consideration is slightly more persuasive – though it, too, ultimately provides no reason to release the withheld reports in their entirety.”  “They cite DOJ's 1994 Guidance implementing its then-self-imposed foreseeable-harm requirement, believing that it favors disclosure here.”  “The Guidance explains that the work-product privilege, as implemented under Federal Rule of Civil Procedure 26(b)(3), ‘establishes a “two-tiered” structure of protection:  It provides that an attorney’s “mental impressions, conclusions, opinions or legal theories” are privileged “absolutely”  and never have to be disclosed in civil discovery, but it affords everything else prepared in anticipation of litigation only a “qualified” privilege that can be overcome with a showing of need.’”  “While Exemption 5 applies to work product in its entirety, regardless of the tier in which it falls, there will often be ‘little need for an agency to assert the work-product privilege’ for information in the ‘fact-laden tier of the privilege’ if it has ‘no inherent sensitivity.’”  “The Guidance then enumerates four factors to consider in assessing work-product-related harm:  (1) time – whether ‘the case [is] still pending’ or ‘sufficiently past that the sensitivity . . . has faded’; (2) connection to litigation – ‘[i]f the case itself is at an end,’ whether the information ‘truly remain[s] sensitive due to its connection to similar or recurring litigation’; (3) substantive scope – whether the document constitutes ‘attorney thought process’ information within the privilege’s ‘first tier’ or ‘pure facts’ within its ‘other tier’; and (4) inherent sensitivity.”  “Of course, the FOIA Improvement Act does not obligate DOJ to ‘mechanically recite’ these foreseeable-harm factors when explaining its withholdings – and they certainly do not bind courts.”  “But they carry some persuasive weight in this case because they come from Defendant itself, and they implement a DOJ policy that Congress expressly adopted.”  “Whether DOJ’s withholding passes muster under this rubric is by no means obvious.”  “On one hand, it is difficult to ignore the fact that there is no pending litigation or prospect of such arising from Durham’s investigation, which has been closed for over a decade.”  “On the other hand, regardless of how much time has passed or whether a case is pending, the reports are inherently sensitive because of their content and purpose – which includes considering legal theories, weighing evidence, and reaching charging decisions, all of which are particularly important components of a prosecutor’s preindictment decisionmaking process.” 

    “The Court thus stands by its conclusion that the foreseeable harm in releasing the reports wholesale is obvious, a conclusion bolstered by its own in camera review.”  “Given the absence of litigation and passage of time, however, it also finds that there would be no foreseeable harm – at least based on the work-product privilege – in releasing any ‘purely factual’ segments within the reports that reveal little about investigators’ mental processes.”  “The question now is whether any such segment exists that can be segregated and released to the public.”

    “Defendant explains that it ‘carefully reviewed each [report] to determine whether any information could be segregated for release’ and determined that none could.”  “Its sole rationale with respect to the work-product privilege, however, is that ‘all ten reports at issue in this case are covered by’ it, and where a document is ‘fully protected as work product[,] . . . segregability is not required.’”  “The Government, in other words, believes that it was not obligated to review whether the harms it foresees from disclosure would be attenuated with respect to any particular segment of the withheld reports.”  “While this position may have been sound before the FOIA Improvement Act, . . . the D.C. Circuit has recently made clear that ‘[t]he segregability requirement . . . extends to both steps of FOIA’s sequential inquiry.’”  “‘Even if an exemption covers an entire agency record, the agency still must release any reasonably segregable information within the record that could be disclosed without causing reasonably foreseeable harm to an interest that the exemption protects.’”  “The Government having conducted its segregability review on a faulty legal premise and having provided no detail as to how the reports are structured, the Court is left to assess on its own whether any part of any report is segregable as ‘purely factual.’”  “Although this is not the preferable route, in the interest of efficiency . . . , the Court will not require the Government to file further declarations but will instead conduct the segregability review itself.”  “Having done so in camera, the Court finds that the facts and investigators’ mental impressions are inextricably intertwined throughout each of the disputed reports such that nothing is releasable.”  “The reports outline thorough and exhaustive investigations, based on a significant number of witness interviews, aimed at determining what happened and whom to believe.”  “Each report and attachment is an analytical document where lawyers are discussing evidence, evaluating the credibility of witnesses, finding facts by comparing their testimony, and making legal judgments about the strength of prosecution for certain crimes.”  “Even the discussion of facts therein reflects the kind of judgment and deliberation within the core of the work-product privilege’s protective sweep.”
Court Decision Topic(s)
District Court opinions
Exemption 5
Litigation Considerations, Foreseeable Harm Showing
Litigation Considerations, Mootness and Other Grounds for Dismissal
Procedural Requirements, “Reasonably Segregable” Obligation
Waiver and Discretionary Disclosure
Updated July 8, 2024