Case Detail
| Case Title | CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2007cv00048 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2007-01-10 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2010-06-08 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Reggie B. Walton | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Description | Citizens for Responsibility and Ethics in Washington submitted a FOIA request to the National Archives and Records Administration for records concerning NARA's request that the U.S. Secret Service retain records from the White House visitors' log system. CREW also requested expedited processing and a fee waiver. The agency located 336 pages responsive to CREW's request. The agency disclosed 31 pages in full and 11 pages in part, withholding the remaining records under Exemption 5 (privileges). CREW filed an administrative appeal of that decision. The agency located an additional 50 pages and disclosed 28 pages with redactions under Exemption 5 and withheld the remaining 22 pages entirely under Exemption 5. CREW then filed suit. Complaint issues: Litigation - Attorney's fees | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | NATIONAL ARCHIVES AND RECORDS ADMINISTRATION | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Complaint attachment 2 Opinion/Order [17] FOIA Project Annotation: Judge Reggie Walton has ruled that the National Archives properly invoked Exemption 5 (privileges) in withholding records pertaining to whether White House visitors' logs created by the Secret Service were agency records or presidential records. CREW, which, along with Judicial Watch, has been involved in litigation with the Secret Service over access to the visitors' logs, requested the records. NARA released about 40 pages but withheld the remaining 294 pages, claiming documents were protected by the deliberative process privilege, attorney-client privilege, and attorney work-product privilege. Walton first addressed 2001 and 2004 memos concerning retention of WAVES records�"records "created for the purpose of controlling and monitoring access to the White House Complex"�"which NARA had withheld as both deliberative and attorney work product. CREW argued that the memos dealt with NARA's statutory role in approving records schedules, not in giving advice to the Secret Service. Walton decided he needed to conduct an in camera review since the agency's Vaughn index did not describe the memos adequately. He indicated that "it is not clear from the Vaughn Index whether the documents were drafted by NARA in formulating policy or in discharging its statutory duty to act on agency proposals regarding the disposition of its records. Thus, it is not clear from the Vaughn Index what role the documents played in the administrative process. In addition, it is not clear from the filings whether the documents were prepared in contemplation of litigation." CREW also challenged the claim that a memo from the Office of Legal Counsel at the Justice Department to the "Executive Branch" concerning WAVES records was protected by the attorney-client privilege because NARA was only a third-party recipient, not the client. Walton disagreed. Quoting from Coastal States v. Dept. of Energy, 617 F.2d 854 (D.C. Cir. 1980), he observed that the attorney-client privilege applied "when the Government is dealing with its attorneys as would any private party seeking advice to protect personal interests, and needs the same assurance of confidentiality so it will not be deterred from full and frank communications with its counselors."
Opinion/Order [20]Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative FOIA Project Annotation: Exemption 5 (privileges) is perhaps the most opaque of all the FOIA exemptions as written. But after being endlessly interpreted by the courts, its coverage encompasses a handful of widely-recognized privilegesâ€"deliberative process privilege, attorney-client privilege, and attorney work product privilege. While other privileges have occasionally been found to fit under Exemption 5 as well, these three privileges are by far the most commonly claimed and litigated. Two recent decisions, however, indicate that the analysis for determining exactly why a record fits under one of the privileges is still more unsettled than one might expect. The cases involved two sophisticated litigatorsâ€"CREW and EPICâ€"and while the subject matter of the requests was significantly different, both by their terms requested information that could be characterized as advice or recommendations. CREW asked the National Archives and Records Administration for records pertaining to the agency record status of the White House Workers and Visitors Entrance System records and EPIC requested information about the Justice Department's warrantless surveillance program. Judge Reggie Walton ultimately rejected most of CREW's Exemption 5 arguments, but he did decide to review two NARA memos concerning the retention of WAVES records in camera after concluding that NARA had failed to adequately explain how they were deliberative in nature. CREW argued that the memos reflected "legal views of NARA's general counsel on questions regarding the transfer and disposition of WAVES records" and that the memos "were [not] created by NARA to formulate policy, but rather represent NARA's discharge of its statutory duty to act on agency proposals regarding the disposition of its records." Finding the agency had not sufficiently described the memos, Walton pointed out that "it is not clear from the Vaughn Index what role the documents played in the administrative process. In addition, it is not clear from the filings whether the documents were prepared in contemplation of litigation." On the other hand, Walton found that several documents dealing with the disposition of WAVES records were protected as attorney work product. Although the threshold for protection under the attorney work product is that the records were created in anticipation of pending litigation, Walton pointed out that "here, the defendant could reasonably have anticipated litigation over the question of whether WAVES and related records were presidential or federal, considering that FOIA requests for these records had already been submitted. Further, the documents were written by one of the defendant's attorneys or sent to him as the defendant's General Counsel in response to specific questions counsel posed related to the legal status of WAVES records." He added that "they concern written communications between [NARA General Counsel Gary] Stern and NARA archivists or Amy Krupsky, a NARA attorney, (1) regarding what further actions should be taken by NARA staff with respect to WAVES records schedule and (2) the status of a possible meeting planned with White House, DOJ counsel, and Secret Service staff to discuss pending legal issues related to the transfer and disposition of WAVES records. Disclosure of such written communications would clearly disclose the mental impressions of NARA's General Counsel, including his plan and legal theories concerning the transfer and disposition of WAVE records." While Walton's description sounds like legal advice given by NARA attorneys, its connection to any litigationâ€"the key requirement for the privilegeâ€"seems a bit of a stretch. Walton essentially accepts that litigation was inevitable because frequent litigators like CREW and Judicial Watch had made FOIA requests. A FOIA request does not litigation make and if agencies can invoke attorney work product protection for opinions that deal with an agency's response to a FOIA request then virtually anything can be characterized as being created in anticipation of litigation. EPIC tried to convince Judge Henry Kennedy that opinions from the Justice Department's Office of Legal Counsel were not protected by the deliberative process privilege because they were final opinions binding on executive branch agencies. Kennedy rejected the claim, noting instead that "it is nonsensical to state that legal opinions can never be protected by the deliberative process privilege because of their authoritative nature. If legal opinions are disclosable simply because they are authoritative or conclusive, this 'would mean that virtually all legal advice OLC provides to the executive branch would be subject to disclosure.' This would significantly chill the ability of the executive branch to obtain legal advice. Rather, authoritative legal opinions promulgated as part of a larger decision-making process may well be protected by the deliberative process privilege." While Kennedy found that most of the OLC memos were probably protected by the deliberative process privilege, he agreed with EPIC that the agency's affidavits failed to describe the deliberative process involved and ordered the agency to make those memos available for in camera review. Kennedy rejected Justice's claim of attorney-client privilege. He noted that "it is not the case that just because the documents at issue contain classified information the documents are protected by the attorney-client privilege. The attorney-client privilege protects confidential information that involves or is about that client. The [agency's] declarations do not indicate what agency or executive branch entity is the client for purposes of the attorney-client privilege. . .Simply because the documents contain legal advice does not necessarily mean that the attorney-client privilege applies to the documents." He added that "the court has no doubt that, to the extent DOJ became privy to classified information, there was an expectation that DOJ was to keep this information confidential. The attorney-client privilege is not necessarily the means for protecting this information." Kennedy ruled that three documents that had been sent to the president or his immediate advisors were protected by the presidential communications privilege. EPIC had argued that the president was required to invoke the privilege himself, a claim that had already been rejected by several courts, including the D.C. Circuit, in previous ruling focusing on the scope of the presidential communications privilege. He also rejected EPIC's claim that the presidential communications privilege was restricted to advisory or deliberative documents. He explained that "EPIC appears to confuse the presidential communications privilege with the deliberative process privilegeâ€"they are two separate privileges. Indeed, the D.C. Circuit has noted that the presidential communications privilege applies to documents that may not be covered by the deliberative process privilegeâ€"the D.C. Circuit has found that the privilege applies to 'final and post-decisional materials as well as pre-deliberative ones.'"
Opinion/Order [23]Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Attorney work-product privilege | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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