Skip to content

Case Detail

[Subscribe to updates]
Case TitleCAUSE OF ACTION INSTITUTE v. U.S. DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2017cv01423
Date Filed2017-07-18
Date Closed2018-09-13
JudgeJudge James E. Boasberg
PlaintiffCAUSE OF ACTION INSTITUTE
Case DescriptionCause of Action Institute submitted a FOIA request to the Department of Justice for records concerning Rep. Jeb Hensarling's directive for agencies to treat all records sent to his Committee on Financial Services as congressional records rather than agency records. The agency acknowledged receipt of the request, but after hearing nothing further from the agency, Cause of Action Institute filed suit.
Complaint issues: Litigation - Attorney's fees, Failure to respond within statutory time limit

DefendantU.S. DEPARTMENT OF JUSTICE
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Opinion/Order [23]
FOIA Project Annotation: In a case brought by Cause of Action Institute to uncover the effects of a letter sent to agencies by Rep. Jeb Hensarling, chair of the House Committee on Financial Services, instructing agencies to treat communications with the committee as congressional records rather than agency records, Judge James Boasberg has ruled that while some of the Exemption 5 (privileges) claims made by the Department of Justice are appropriate, others are not protected by either the attorney-client privilege or the deliberative process privilege. DOJ initially disclosed five pages and later discovered another 11 responsive pages. The agency disclosed the records with redactions under Exemption 5. Cause of Action did not challenge the adequacy of the search but did contest the breadth of the agency's privilege claims. DOJ withheld the bulk of two emails from the White House Counsel's Office to the Director of the Office of Information Policy. The email began with "FYI " the administration has received several letters like the attached." DOJ redacted the following sentence and the entire attached letter, claiming it was covered by the attorney-client privilege. After reviewing the records in camera, Boasberg disagreed. He noted that "nowhere does the White House directly ask for legal advice in the email, nor is there any other statement that can even be fairly construed as a solicitation of legal counsel. Rather, the body of the email begins with the acronym 'FYI,' which the Court, like the parties, takes to mean 'for your information.' This statement gives the email the appearance of a simple alert to another government employee and not a communication whose 'primary purpose' is securing legal advice." DOJ argued that OIP routinely provided legal advice to agencies on FOIA-related issues. Boasberg, however, explained that "the fact that OIP is in the business of sometimes " or even 'routinely' " providing legal advice is insufficient when, as here, the provision of legal services is not the office's sole duty. It is Justice's burden to show that this particular communication involved a request for legal advice." He pointed out that "the 'context of the email' to which the Government refers only reveals coordination between the White House and OIP on a response to the congressional instruction. It does not establish that the purpose of this communication was legal in nature." He added that "even if the Court were to assume that obtaining legal advice was one of the White House's objectives in reaching out to OIP, DOJ might nevertheless still fail to carry its burden. That a conversation has some legal nexus is insufficient: the party seeking the protection of the attorney-client privilege must show that securing legal advice was a 'primary objective.' [T]he email's language cuts against any inference that the communication primarily concerned a request for legal counsel, rather than mere coordination on a strategy or policy amongst government agencies." An email chain from an agency seeking legal advice from the Office of Legal Counsel fared better. Here, Boasberg pointed out that "the sending of the document to legal counsel for the purpose of review, accordingly, means that the draft falls within the scope of the privilege and is entitled to protection." Cause of Action challenged whether confidentiality was appropriate where the agencies' motive for seeking legal advice was public. But Boasberg noted that "the Institute has learned the identity of the twelve agencies that received the letter. It remains in the dark only as to which of these twelve actually sought OLC's counsel in these communications. That Plaintiff has some pieces of the puzzle, however, does not justify revealing the complete picture. Divulging the client's identity would still disclose that the agency acted on a particular 'motive. . .in seeking representation.'" Cause of Action argued that including the Office of Legislative Affairs on the email waived the privilege. Boasberg indicated that "OLA is an organization within the executive branch, and the matter at issue concerned an agency's response to congressional correspondence, which is directly in OLA's wheelhouse. The disclosure of communications to OLA thus did not waive the privilege." Boasberg found that the email from the White House counsel to OIP was predecisional, but that it was not deliberative. He pointed out that "as the Court's review makes clear, the communications here reveal no 'deliberative process' that could 'expose the agency's policy deliberations to unwarranted scrutiny.' Absent more, the privilege cannot apply. A record is not protected merely by virtue of being a relevant predecisional communication."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-07-181COMPLAINT against U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-5035043) filed by CAUSE OF ACTION INSTITUTE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Civil Cover Sheet, # 4 Summons DOJ, # 5 Summons USAG, # 6 Summons Civil Process Clerk)(Mulvey, Ryan) (Entered: 07/18/2017)
2017-07-182LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CAUSE OF ACTION INSTITUTE (Mulvey, Ryan) (Entered: 07/18/2017)
2017-07-18Case Assigned to Judge James E. Boasberg. (jd) (Entered: 07/18/2017)
2017-07-183SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Forms)(jd) (Entered: 07/18/2017)
2017-07-194NOTICE of Appearance by Lee A. Steven on behalf of CAUSE OF ACTION INSTITUTE (Steven, Lee) (Entered: 07/19/2017)
2017-07-275RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 7/24/2017 (Mulvey, Ryan) (Entered: 07/27/2017)
2017-07-276RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 07/24/17. (Mulvey, Ryan) (Entered: 07/27/2017)
2017-07-277RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/27/2017. Answer due for ALL FEDERAL DEFENDANTS by 8/26/2017. (Mulvey, Ryan) (Entered: 07/27/2017)
2017-08-288ANSWER to Complaint by U.S. DEPARTMENT OF JUSTICE.(Newton, Emily) (Entered: 08/28/2017)
2017-08-28MINUTE ORDER: The Court ORDERS that the parties shall meet, confer, and submit a joint proposed briefing schedule by September 11, 2017. Signed by Judge James E. Boasberg on 8/28/2017. (lcjeb3) (Entered: 08/28/2017)
2017-08-28Set/Reset Deadlines: Brief due by 9/11/2017. (nbn) (Entered: 08/28/2017)
2017-09-079Joint STATUS REPORT by CAUSE OF ACTION INSTITUTE. (Mulvey, Ryan) (Entered: 09/07/2017)
2017-09-07MINUTE ORDER: Per the parties 9 Joint Status Report, the Court ORDERS that the parties shall submit a new Joint Status Report by September 29, 2017. Signed by Judge James E. Boasberg on 9/7/17. (lcjeb1) (Entered: 09/07/2017)
2017-09-07Set/Reset Deadlines: Joint Status Report due by 9/29/2017. (nbn) (Entered: 09/08/2017)
2017-09-2910Joint STATUS REPORT by U.S. DEPARTMENT OF JUSTICE. (Newton, Emily) (Entered: 09/29/2017)
2017-09-29MINUTE ORDER: Per the parties' 10 Joint Status Report, the Court ORDERS that they shall submit a new Joint Status Report by November 27, 2017. So ORDERED by Judge James E. Boasberg on 9/29/2017. (lcjeb3) (Entered: 09/29/2017)
2017-09-29Set/Reset Deadlines: Joint Status Report due by 11/27/2017. (nbn) (Entered: 09/29/2017)
2017-11-2711Joint STATUS REPORT by U.S. DEPARTMENT OF JUSTICE. (Newton, Emily) (Entered: 11/27/2017)
2017-11-28MINUTE ORDER: Per the parties' 11 Joint Status Report, the Court ORDERS that they shall submit a further Joint Status Report on or before January 8, 2018. So ORDERED by Judge James E. Boasberg on 11/28/2017. (lcjeb3) (Entered: 11/28/2017)
2017-11-28Set/Reset Deadlines: Joint Status Report due by 1/8/2018. (nbn) (Entered: 11/29/2017)
2018-01-0812Joint STATUS REPORT by CAUSE OF ACTION INSTITUTE. (Mulvey, Ryan) (Entered: 01/08/2018)
2018-01-08MINUTE ORDER: Per the parties' 12 Joint Status Report, the Court ORDERS that they shall submit a further Joint Status Report on or before February 5, 2018. So ORDERED by Judge James E. Boasberg on 1/8/2018. (lcjeb3) (Entered: 01/08/2018)
2018-02-0513Joint STATUS REPORT by U.S. DEPARTMENT OF JUSTICE. (Newton, Emily) (Entered: 02/05/2018)
2018-02-05MINUTE ORDER: Per the parties' suggestion, the Court ORDERS that: 1) Defendant shall file its Motion for Summary Judgment on or before April 6, 2018; 2) Plaintiff shall file its Opposition and Cross-Motion for Summary Judgment on or before May 4, 2018; 3) Defendant shall file its Reply and Opposition on or before May 25, 2018; and 4) Plaintiff shall file its Reply on or before June 15, 2018. So ORDERED by Judge James E. Boasberg on 2/5/2018. (lcjeb3) (Entered: 02/05/2018)
2018-02-05Set/Reset Deadlines: Summary Judgment motions due by 4/6/2018. Response to Motion for Summary Judgment due by 5/4/2018. Reply to Motion for Summary Judgment due by 5/25/2018. Replies due by 6/15/2018. (nbn) (Entered: 02/06/2018)
2018-04-0614MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Declaration, # 2 Statement of Facts, # 3 Text of Proposed Order)(Newton, Emily) (Entered: 04/06/2018)
2018-05-0415Cross MOTION for Summary Judgment by CAUSE OF ACTION INSTITUTE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Statement of Facts, # 4 Declaration, # 5 Text of Proposed Order)(Mulvey, Ryan) (Entered: 05/04/2018)
2018-05-0416Memorandum in opposition to re 14 MOTION for Summary Judgment filed by CAUSE OF ACTION INSTITUTE. (Mulvey, Ryan) (Entered: 05/04/2018)
2018-05-2517REPLY to opposition to motion re 15 Cross MOTION for Summary Judgment and in support of Defendant's Motion for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Newton, Emily) (Entered: 05/25/2018)
2018-05-3018Memorandum in opposition to re 15 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE; (See docket entry no. 17 ti view.) (ztd) (Entered: 05/31/2018)
2018-06-1519REPLY to opposition to motion re 15 Cross MOTION for Summary Judgment filed by CAUSE OF ACTION INSTITUTE. (Mulvey, Ryan) (Entered: 06/15/2018)
2018-06-1520Consent MOTION for Extension of Time to File Response/Reply as to 15 Cross MOTION for Summary Judgment Statement of Undisputed Material Facts by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit)(Newton, Emily) (Entered: 06/15/2018)
2018-06-15MINUTE ORDER: The Court ORDERS that Defendant's Consent 20 Motion for Extension of Time to File is GRANTED and its Response to Plaintiff's Statement of Undisputed Material Facts is deemed filed. So ORDERED by Judge James E. Boasberg on 6/15/2018. (lcjeb3) (Entered: 06/15/2018)
2018-06-1521RESPONSE re 15 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (ztd) (Entered: 06/20/2018)
2018-08-03MINUTE ORDER: The Court ORDERS that the Government shall submit to the Court in camera clean and redacted copies of the documents at issue in the summary-judgment briefing by August 10, 2018. So ORDERED by Judge James E. Boasberg on 8/3/2018. (lcjeb3) (Entered: 08/03/2018)
2018-08-03Set/Reset Deadlines: In-Camera Submission due by 8/10/2018. (znbn) (Entered: 08/06/2018)
2018-09-1322ORDER GRANTING IN PART and DENYING IN PART Defendant's 14 Motion for Summary Judgment and GRANTING IN PART and DENYING IN PART Plaintiff's 15 Motion for Summary Judgment. Signed by Judge James E. Boasberg on 9/13/2018. (lcjeb2) (Entered: 09/13/2018)
2018-09-1323MEMORANDUM OPINION re 22 Order on Motions for Summary Judgment. Signed by Judge James E. Boasberg on 9/13/2018. (lcjeb2) (Entered: 09/13/2018)
Hide Docket Events
by FOIA Project Staff
Skip to toolbar