Elec. Frontier Found. v. U.S. Dep't of Justice

• Decision Date: 03 January 2014
• Docket Number: No. 12-5363,12-5363
• Parties: ELECTRONIC FRONTIER FOUNDATION, APPELLANT v. UNITED STATES DEPARTMENT OF JUSTICE, APPELLEE
• Court: U.S. Court of Appeals — District of Columbia Circuit

ELECTRONIC FRONTIER FOUNDATION, APPELLANT v. UNITED STATES DEPARTMENT OF JUSTICE, APPELLEE

No. 12-5363

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued: November 26, 2013

Decided: January 3, 2014

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-00939)

Mark Rumold argued the cause for appellant. With him on the briefs was David L. Sobel.

Melanie Sloan and Anne L. Weismann were on the brief for amici curiae Citizens for Responsibility and Ethics in Washington, et al. in support of appellant.

Daniel Tenny, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, and Michael S. Raab, Attorney, U.S. Department of Justice.

Before: SRINIVASAN, Circuit Judge, and EDWARDS and SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge:

Electronic Frontier Foundation ("EFF") appeals the District Court's denial of its request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., for disclosure of a legal opinion (the "OLC Opinion") prepared for the Federal Bureau of Investigation (the "FBI") by the Office of Legal Counsel ("OLC") in the Department of Justice. Elec. Frontier Found. v. Dep't of Justice, 892 F. Supp. 2d 95 (D.D.C. 2012). The District Court held that the OLC Opinion, in its entirety, is exempt from FOIA disclosure for two reasons. First, the District Court held that the OLC Opinion is covered by the "deliberative process privilege" in FOIA Exemption 5, which "covers 'documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'" Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)); 5 U.S.C. § 552(b)(5). Second, the District Court concluded that portions of the OLC Opinion are exempt from disclosure under FOIA Exemption 1 because they are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" and "are in fact properly classified pursuant to such Executive order." Elec. Frontier Found., 982 F. Supp. 2d at 91-101 (citing 5 U.S.C. § 552(b)(1)).

EFF contests the District Court's holding that the OLC Opinion is covered by the deliberative process privilege. Br. of Appellant at 19-34. EFF argues further that, even if the OLC Opinion might have been covered by the deliberative processprivilege, the FBI waived the privilege by relying on the OLC Opinion in dealings with Congress and the Office of the Inspector General (the "OIG"). Id. at 34-37. Finally, EFF claims that the District Court erred in failing to require the agency "to specify in detail which portions of the document are disclosable and which are allegedly exempt" under Exemption 1. Id. at 46 (quoting Kimberlin v. Dep't of Justice, 139 F.3d 944, 950 (D.C. Cir. 1998)), and that it also "erred by failing to determine whether there was unclassified, factual information . . . that was 'reasonably segregable' from the [OLC] Opinion's other content." Id. at 50 (quoting 5 U.S.C. § 552(b)).

On the record before us, we hold that the OLC Opinion, which was requested by the FBI in response to the OIG's investigation into its information-gathering techniques, is an "advisory opinion[], recommendation[] and deliberation[] comprising part of a process by which governmental decisions and policies are formulated," and is therefore covered by the deliberative process privilege. Klamath Water Users, 532 U.S. at 8 (quotation omitted). We also hold that the FBI did not "adopt" the OLC Opinion and thereby waive the deliberative process privilege. The OIG mentioned the OLC Opinion in its report, and a congressional committee inquired about the OLC Opinion, but the FBI never itself adopted the OLC Opinion's reasoning as its own. Finally, because the entire OLC Opinion is exempt from disclosure under the deliberative process privilege, we need not decide whether particular sections were properly withheld as classified, or whether some material is reasonably segregable from the material properly withheld.

I. BACKGROUND

A. Statutory Framework

FOIA requires government agencies to make available "final opinions . . . as well as orders," "statements of policy andinterpretations which have been adopted by the agency," and "administrative staff manuals and instructions . . . that affect a member of the public." 5 U.S.C. § 552(a)(2). FOIA exemptions allow agencies to withhold information from disclosure if it has been properly classified under criteria established by Executive order "to be kept secret in the interest of national defense or foreign policy," id. § 552(b)(1) (Exemption 1), and "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," id. § 552(b)(5) (Exemption 5). Exemption 5 covers material that would be protected from disclosure in litigation under one of the recognized evidentiary or discovery privileges, such as the attorney-client privilege. Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 874 (D.C. Cir. 2010) (citing Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980)). The deliberative process privilege is one of the litigation privileges incorporated into Exemption 5. It allows an agency to withhold "all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be." Sears, 421 U.S. at 153 (quotations omitted).

B. Procedural History

Several statutes permit the FBI to use "national security letters" to subpoena telephone and financial records that it certifies are connected to an authorized national security investigation. See Br. for Appellee at 4 (citing 12 U.S.C. § 3414(a)(5)(A); 18 U.S.C. § 2709; 15 U.S.C. § 1681u(a)-(b); 50 U.S.C. § 436(a)(1) (transferred to 50 U.S.C. § 3162)). The USA Patriot Improvement and Reauthorization Act of 2005 directed the OIG to audit the "effectiveness and use, including any improper or illegal use," of these national security letters. Pub. L. No. 109-177, § 119, 120 Stat. 192 (2006). The OIG's initial report found that the FBI had issued "exigent letters" to request records from telephone companies in cases in whichFBI officials had not certified that the records were part of an authorized national security investigation, as required for a bona fide national security letter. U.S. DEP'T OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF THE FEDERAL BUREAU OF INVESTIGATION'S USE OF NATIONAL SECURITY LETTERS 92 (March 2007), http://www.justice.gov/oig/special/s0703b/final.pdf.

Following these findings, the OIG conducted a second investigation into the FBI's use of exigent letters for requesting telephone records. DEP'T OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF THE FEDERAL BUREAU OF INVESTIGATION'S USE OF EXIGENT LETTERS AND OTHER INFORMAL REQUESTS FOR TELEPHONE RECORDS (January 2010) ("OIG Report"), www.justice.gov/oig/special/s1001r.pdf, reprinted in part in Joint Appendix ("J.A.") 46. The OIG provided the FBI with a draft of this report. Valerie Caproni, General Counsel of the FBI, then sought legal advice from OLC about the investigative tactics at issue. Decl. of Paul P. Colborn, Special Counsel in the Office of Legal Counsel at 4-5, reprinted in J.A. 21-22 ("Colborn Decl.").

The OIG Report, which has been publicly disclosed, explains that:

[A]fter reviewing a draft of the OIG report the FBI asked the Office of Legal Counsel (OLC) for a legal opinion on this issue. . . . [T]he OLC agreed with the FBI that under certain circumstances [redacted authority] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency. . . . [T]he FBI acknowledged in its July 2009 comments to a draft of this report that it had never considered or relied upon [redacted authority] when it obtained any of the telephone records at issue in this report. Moreover it cannot be known at this point whetherany provider would have divulged such records based on [redacted authority] alone, and without the FBI's representation that a[] [national security letter] or other compulsory legal process would be served.

OIG Report at 264-65, reprinted in J.A. 48-49. The OIG Report concluded that "the potential use of [redacted authority] by the FBI has important policy implications" and "creates a significant gap in FBI accountability and oversight that should be examined closely by the FBI, the Department, and Congress." Id. at 268, reprinted in J.A. 52. However, the OIG Report also acknowledged that "[t]he FBI has stated that it does not intend to rely on [redacted authority]." Id. at 265 n.283, reprinted in J.A. 49.

On April 14, 2010, the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing concerning the OIG Report. As relevant to the OLC Opinion, FBI General Counsel Caproni testified:

The OIG's 2010 report discusses a January 8, 2010 opinion issued by [OLC], which concluded that [the Electronic Communications Privacy Act] does not forbid electronic communications service providers, in certain circumstances, from disclosing certain call detail records to the FBI on a voluntary basis without legal process or a qualifying emergency. Many members of Congress have asked questions about this OLC opinion, which is classified. It is my understanding that it has been shared with our oversight committees, including this Committee, at the appropriate security level. Because of the classified nature of the OLC opinion, I cannot address it in this forum, but am available to discuss it in a secure setting.

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