Brinton v. Department of State, No. 79-2032

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore TAMM, ROBINSON and WILKEY; WILKEY
Citation636 F.2d 600,204 U.S.App.D.C. 328
Decision Date09 December 1980
Docket NumberNo. 79-2032
PartiesWilliam M. BRINTON, Appellant, v. DEPARTMENT OF STATE et al., Appellees.

Page 600

636 F.2d 600
204 U.S.App.D.C. 328
William M. BRINTON, Appellant,
v.
DEPARTMENT OF STATE et al., Appellees.
No. 79-2032.
United States Court of Appeals,
District of Columbia Circuit.
Argued 9 June 1980.
Decided 3 Sept. 1980.
Rehearing Denied Dec. 9, 1980.

Page 602

Appeal from the United States District Court for the District of Columbia Circuit (Civil Action No. 78-0112).

James M. Sack, Washington, D. C., for appellant.

JoAnn Dolan, Atty., Dept. of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Carl S. Rauh, U. S. Atty., Washington, D. C., at the time the brief was filed, and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellees.

Before TAMM, ROBINSON and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

WILKEY, Circuit Judge:

This appeal arises from the district court's denial of appellant William M. Brinton's Freedom of Information Act (FOIA) suit for State Department documents. Appellant requested legal opinions prepared for the Department of State by the Department's Office of the Legal Adviser, concerning United States policy on issues involving Israel and the West Bank, the Golan Heights, and the Gaza Strip. After the State Department released several requested documents or parts of documents to appellant, the district court found the remainder of the requested documents to be within Exemption 5 of the FOIA for inter- or intra-agency memoranda not available by law to a party. The court held the documents to be not available under Exemption 5 on grounds of attorney-client privilege, and also found them to be within the deliberative process protected by Exemption 5. The district court accordingly granted summary judgment to the Department. From this judgment Brinton now appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1977 appellant filed a request with the State Department for opinions of the Office of the Legal Adviser concerning the legal status of territory occupied by Israel since June 1967. Among the documents requested by appellant were a Memorandum of Agreement between the United States and Israel dating from 1975 and any opinions concerning United Nations Resolution 242. 1

The State Department found nine documents responsive to appellant's request and initially released one of them, withholding the others pursuant to FOIA Exemptions 1 and 5. Exemption 1 protects from FOIA disclosure those matters "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 2

Exemption 5 protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 3

In January 1978 appellant filed suit in United States District Court to compel disclosure

Page 603

of those documents withheld by the State Department. By Memorandum and Order dated 30 November 1978, from which no appeal was taken, the district court rejected the government's claim that appellant had failed to exhaust his administrative remedies. The court further held, however, that the Exemption 1 claim should be referred to the State Department's Council on Classification Policy to review the substantive and procedural validity of classification in light of recently enacted Executive Order No. 12,038. 4

Upon review by the Council, the State Department released to appellant the requested Memorandum of Agreement between the governments of Israel and the United States, as well as portions of several other requested documents. The Department continued to claim Exemption 5 protection for all the remaining withheld documents and portions of documents, and continued to claim Exemption 1 coverage for the bulk of the documents. The Department submitted several affidavits to the district court to support these claims.

On 12 June 1979 the district court ruled on the Government's motion for summary judgment as to its FOIA exemption claims. The court did not decide the applicability of Exemption 1, but found instead that all the withheld documents were within Exemption 5. As its primary basis for withholding the remaining documents under Exemption 5, the court found all portions of the documents to be within the attorney-client privilege. The court found the documents to be the product of an attorney-client relationship between the Secretary of State and the Legal Adviser, and further found the documents to be maintained as confidential between attorney and client, citing this court's opinion in Mead Data Central, Inc. v. United States Department of Air Force. 5 As an additional ground for the application of Exemption 5, the court found the documents to be predecisional and deliberative working papers of the Department of State, and thus within the deliberative process basis for application of Exemption 5.

In granting summary judgment to the Government, the district court determined the State Department's affidavits to be sufficiently clear and detailed to establish the applicability of Exemption 5. The court found no allegations or evidence of bad faith on the part of the Department. For these reasons the court granted summary judgment without acceding to appellant's request for an in camera inspection of the document. 6

II. ANALYSIS

Both congressional intent and judicial precedent establish the attorney-client privilege as a ground for applying Exemption 5. 7 Following this circuit's Mead Data opinion, the district court in this case held that the attorney-client privilege applies only when information is the product of an attorney-client relationship and is maintained as confidential between attorney and client. 8

There is an additional limitation on the attorney-client privilege, however, for those communications that originate from the lawyer rather than from the client. Mead Data stated that when the attorney communicates to the client, the privilege applies only if the communication "is based on confidential information provided by the client." 9

This limitation applies generally to attorney-client privilege cases whether or not in

Page 604

the context of the FOIA. For example, the Eighth Circuit has limited the privilege to communications from the attorney that are "related to the confidence" from the client. 10 A district court decision applied the privilege to a document from...

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120 practice notes
  • American Civil Lib. Union v. U.S. Dept. of Justice, No. CIV.A.02-2077 ESH.
    • United States
    • U.S. District Court — District of Columbia
    • May 19, 2003
    ...agency bears the burden of showing that no such segregable information exists.") (internal quotations omitted); Brinton v. Dep't of State, 636 F.2d 600, 605-06 Here, while defendant has asserted that Exemption 5 applies to a number of documents, plaintiffs challenge these withholdings only ......
  • Floyd v. Floyd, No. 3997.
    • United States
    • United States State Supreme Court of South Carolina
    • June 13, 2005
    ...the privilege applies only if communication is based on confidential information provided by the client. Brinton v. Department of State, 636 F.2d 600 (C.A.D.C.1980). The attorney-client privilege, though, does not protect communications with non-clients. State v. Love, Marshall at 538-39, 3......
  • Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 86-9
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • April 28, 1986
    ...Mead Data Central v. Department of the Air Force, 566 F.2d 242, 252-55 (D.C. Cir. 1977). [16] See, e.g., Brinton v. Department of State, 636 F.2d 600, 605 (D.C. Cir. 1980), cert, denied, 452 U.S. 905 (1981); Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d at 252; Coastal St......
  • Lindsey, In re, Nos. 98-3060
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 9, 1998
    ...and the attorney may be an agency lawyer." Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C.Cir.1997); see also Brinton v. Department of State, 636 F.2d 600, 603-04 (D.C.Cir.1980). In Lindsey's case, his client--to the extent he provided legal services--would be the Office of the President. Page......
  • Request a trial to view additional results
120 cases
  • American Civil Lib. Union v. U.S. Dept. of Justice, No. CIV.A.02-2077 ESH.
    • United States
    • U.S. District Court — District of Columbia
    • May 19, 2003
    ...agency bears the burden of showing that no such segregable information exists.") (internal quotations omitted); Brinton v. Dep't of State, 636 F.2d 600, 605-06 Here, while defendant has asserted that Exemption 5 applies to a number of documents, plaintiffs challenge these withholdings only ......
  • Floyd v. Floyd, No. 3997.
    • United States
    • United States State Supreme Court of South Carolina
    • June 13, 2005
    ...the privilege applies only if communication is based on confidential information provided by the client. Brinton v. Department of State, 636 F.2d 600 (C.A.D.C.1980). The attorney-client privilege, though, does not protect communications with non-clients. State v. Love, Marshall at 538-39, 3......
  • Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 86-9
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • April 28, 1986
    ...Mead Data Central v. Department of the Air Force, 566 F.2d 242, 252-55 (D.C. Cir. 1977). [16] See, e.g., Brinton v. Department of State, 636 F.2d 600, 605 (D.C. Cir. 1980), cert, denied, 452 U.S. 905 (1981); Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d at 252; Coastal St......
  • Lindsey, In re, Nos. 98-3060
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 9, 1998
    ...and the attorney may be an agency lawyer." Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C.Cir.1997); see also Brinton v. Department of State, 636 F.2d 600, 603-04 (D.C.Cir.1980). In Lindsey's case, his client--to the extent he provided legal services--would be the Office of the President. Page......
  • Request a trial to view additional results

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