Wednesday, September 18, 2013
- Exemption 5 & Attorney Work-Product & Threshold: The court concludes that the Brief Bank as whole may not be withheld pursuant to Exemption 5 and the attorney work-product doctrine. The court holds that "[t]he nature of the contents of the Brief Bank, consisting of publicly filed cases and briefs addressing the myriad issues that have arisen in FOIA litigation, is necessarily general in order to serve as a resource to agency lawyers litigating FOIA cases." "This very generalness not only defeats a finding that disclosure would reveal the thought processes of the attorney compiling the Brief Bank, but also defeats a finding that the compilation is sufficiently tethered to any anticipated litigation." The Brief Bank does not meet the requirement that material withheld pursuant to the attorney work-product doctrine be tethered to the "'prospect of litigation.'" "[T]he mere inevitability of the defendant's involvement in FOIA litigation, for which the Brief Bank may be a useful tool, does not convert the Brief Bank into protected attorney work-product." The court also declines to find that the court documents in the Brief Bank meet the requirements of Exemption 5. "All of the court documents in the Brief Bank were filed in 'FOIA lawsuits filed around the country, in both the various United States District Courts and the Circuit Courts of Appeal.'" The court finds that "by definition, any document filed in a federal court is not an inter-agency or intra-agency memorandum because the destination is not an agency." Finally, although summary documents "consisting of the summaries of cases and key issues in certain cases" meet Exemption 5's threshold, the court finds that they may not be withheld as attorney work-product. These summaries "merely summarize briefs or cases and key issues identified in them." The description in EOUSA's declaration "does not suggest that the summary documents reveal any legal strategy or other case-specific legal considerations that might have implications for future litigation if revealed to adversaries." "Instead, these summary documents appear to be far more like the 'neutral, objective analyses' found to be unprotected by the work-product doctrine" in prior case law.
Updated August 6, 2014