Work Product Privilege and FOIA: Establishing New Precedent in New York Times Co. v. DOJ: 2d Cir.

Introduction

In the landmark case of The New York Times Company and Charlie Savage v. United States Department of Justice, the United States Court of Appeals for the Second Circuit addressed critical issues surrounding the Freedom of Information Act (FOIA) and the attorney work product privilege. Decided on September 27, 2019, the case centered on whether internal memoranda drafted by U.S. Attorney John Durham, under the direction of then-Attorney General Eric Holder, could be disclosed under FOIA's Exemption 5.

The plaintiffs, The New York Times and reporter Charlie Savage, sought access to these memoranda, which detailed DOJ’s decision-making process regarding investigations into CIA detainee abuse allegations post-9/11. The key legal battle revolved around Exemption 5, which protects inter-agency memoranda from public disclosure, and whether Holder’s public statements constituted a waiver of this protection.

Summary of the Judgment

The Second Circuit reviewed the district court's decision that initially held the DOJ’s memoranda and exhibits were not protected under Exemption 5 due to Holder's "express adoption" of their content in public statements. However, following the Second Circuit's decision in American Civil Liberties Union v. National Security Agency, which clarified the limitations of the "express adoption" exception, the appellate court determined that only specific portions of the memoranda were subject to disclosure.

The court concluded that Holder's public statements only waived the work product privilege concerning the conclusion that some detainees were not in CIA custody. Consequently, only those sections of the memoranda and exhibits related to this particular finding must be disclosed, while the remainder remains protected under Exemption 5.

The judgment affirmed the district court's decision in part and reversed it in part, directing the DOJ to release the relevant sections while maintaining the confidentiality of the rest.

Analysis

Precedents Cited

The court extensively referenced prior cases to establish the boundaries of FOIA’s Exemption 5 and the attorney work product privilege:

Sears, Roebuck & Co. v. National Labor Relations Board: Established that memorandum constituting an agency’s "working law" must be disclosed as it binds the public.
American Civil Liberties Union v. National Security Agency: Clarified that the "express adoption" exception to Exemption 5 does not broadly apply, limiting its scope to contexts where intra-agency documents become "working law."
National Council of La Raza v. U.S. Department of Justice and Brennan Center v. DOJ: Demonstrated instances where internal memoranda lost Exemption 5 protection by being incorporated into official policy or actions.
HICKMAN v. TAYLOR: Introduced the attorney work product doctrine, safeguarding materials prepared in anticipation of litigation.

These precedents collectively reinforced the court’s approach to balancing transparency under FOIA with the protection of privileged internal agency communications.

Legal Reasoning

The court’s legal reasoning hinged on distinguishing between documents that have become "working law" and those that retain their status as protected work product. "Working law" refers to post-decisional materials that bind both the agency and the public, thus necessitating disclosure to prevent the creation of "secret law."

In this case, the court determined that Durham’s memoranda did not transform into "working law" merely because Holder referenced them in public statements. Unlike the NLRB’s memoranda in Sears, DOJ’s prosecutorial determinations retained their discretionary and non-precedential nature. Holder's statements, while revealing specific conclusions, did not elevate the entire content of the memoranda to the status of binding policy.

Furthermore, the court analyzed whether Holder’s public statements amounted to a waiver of the attorney work product privilege. It concluded that only the portions of the memoranda explicitly referenced in the statements—pertaining to detainees not in CIA custody—were subject to disclosure, as these represented a clear leakage of privileged content.

Impact

This judgment significantly refines the application of FOIA’s Exemption 5 in relation to internal agency documents. By clarifying that "express adoption" does not broadly remove work product protections, the court limits the scenarios in which internal memoranda can be compelled for disclosure. This ensures that agencies retain the ability to conduct internal analyses and strategy development without fear of unwarranted exposure.

Additionally, the decision underscores the importance of distinguishing between fully adopted policies and selective disclosures that may partially waive privileges. This nuanced approach provides clearer guidelines for future FOIA litigations involving similar privileged materials.

For media organizations and government agencies, the ruling highlights the necessity of careful public communication strategies to avoid unintended waivers of privileged information.

Complex Concepts Simplified

Freedom of Information Act (FOIA)

FOIA is a federal law that grants the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government. While FOIA promotes transparency, it also contains exemptions to protect sensitive information.

Exemption 5

Exemption 5 of FOIA protects "inter-agency or intra-agency memorandums or letters" that are not available by law to a party outside litigation with the agency. This includes documents that qualify for attorney-client privilege or attorney work product protection.

Attorney Work Product Privilege

This doctrine shields materials prepared by or for an attorney in anticipation of litigation from being disclosed to the other party. It ensures that legal teams can develop strategies and analyze cases without the risk of exposing their methods or thoughts.

Working Law Doctrine

The "working law" doctrine pertains to internal agency documents that have been adopted as official policy or law, binding the agency and affecting the public. When such documents become "working law," they lose FOIA Exemption 5 protection and must be disclosed.

Waiver of Privilege

Waiver occurs when a party relinquishes their right to claim a privilege, either intentionally or inadvertently. In this context, public disclosure of specific parts of a memorandum can waive the protection of those parts under Exemption 5.

Conclusion

The Second Circuit's decision in New York Times Co. v. Department of Justice marks a pivotal moment in the interpretation of FOIA’s Exemption 5 and the attorney work product privilege. By delineating the limits of the "express adoption" exception and emphasizing the conditions under which privilege can be waived through public statements, the court has fortified the balance between governmental transparency and the protection of sensitive internal deliberations.

This ruling not only ensures that agencies can continue to conduct thorough and confidential analyses but also provides clearer legal standards for determining when privileged information must be disclosed. As a result, it enhances the predictability and fairness of FOIA proceedings, benefiting both governmental bodies and information-seeking entities such as the media.

Moving forward, agencies must exercise caution in public communications to safeguard privileged materials, while journalists and other stakeholders can better understand the boundaries of information access under FOIA. The judgment thereby contributes significantly to the ongoing dialogue about transparency, accountability, and the protection of legal strategies within governmental operations.

Work Product Privilege and FOIA: Establishing New Precedent in New York Times Co. v. DOJ