Judicial Watch, Inc. v. Department of Justice

• Decision Date: 27 December 2005
• Docket Number: No. 04-5444.,04-5444.
• Citation: 432 F.3d 366
• Parties: JUDICIAL WATCH, INC., Appellee v. DEPARTMENT OF JUSTICE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

432 F.3d 366

JUDICIAL WATCH, INC., Appellee v. DEPARTMENT OF JUSTICE, Appellant.

No. 04-5444.

United States Court of Appeals, District of Columbia Circuit.

Argued October 31, 2005.

Decided December 27, 2005.

Appeal from the United States District Court for the District of Columbia (No. 02cv00348).

Steve Frank, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, and Leonard Schaitman, Attorney.

James F. Peterson argued the cause for appellee. With him on the brief was Paul J. Orfanedes.

Before: ROGERS, Circuit Judge, and EDWARDS^* and WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

HARRY T. EDWARDS, Senior Circuit Judge.

Appellee, Judicial Watch, Inc. ("Judicial Watch"), brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000 & Supp. II 2002), seeking, inter alia, disclosure of documents relating to the United States' participation as amicus curiae in Boim v. Quranic Literacy Institute, 291 F.3d 1000 (7th Cir.2002). As the case proceeded before the District Court, the subject of the parties' dispute finally focused on nine emails, totaling 13 pages, withheld by the Government pursuant to the deliberative process privilege and the attorney work-product doctrine under Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5).

It is uncontested that all nine emails involve communications between Department of Justice ("DOJ") officials, containing discussions about whether DOJ should file an amicus brief in the Boim litigation and what the Department's position should be if such a brief were filed. See Supplemental Decl. Pustay ¶ 4, reprinted in Joint Appendix ("J.A.") 118-19. "Each of these e-mails was written by and/or to attorneys in relation to the Boim case or other litigation involving designated foreign terrorist organizations." Decl. Pustay ¶ 22, reprinted in J.A. 40. On March 31, 2004, following an in camera review of the disputed documents, the District Court held that the emails "were properly withheld under Exemption 5, as the documents are protected by both the deliberative process privilege and the attorney work-product doctrine." Judicial Watch, Inc. v. DOJ, CA No. 02-348, Order at 2 (Mar. 31, 2004).

Although the District Court concluded that the emails were properly withheld under Exemption 5, it agreed with Judicial Watch that, under 5 U.S.C. § 552(b), the Government was obligated "to disclose any `reasonably segregable portion' of the documents." Id. at 2. Finding that the Government "[had] not made a good faith effort to provide [Judicial Watch] with a `reasonably segregable portion' of each document," the District Court ordered DOJ to "file with [Judicial Watch] and the Court appropriately redacted versions of each document by no later than April 12, 2004." Id. at 3. Pursuant to this decision, the District Court granted in part and denied in part the parties' respective motions for summary judgment.

On April 5, 2004, the Government moved for reconsideration of the March 31 Order, or, in the alternative, for a stay pending appeal. The Government contended that, given the trial court's finding that the emails were properly withheld under the work-product doctrine, segregability was not required. In the Government's view, "the work product doctrine protects all materials prepared in reasonable anticipation of litigation, whether factual or deliberative in nature." Br. for Appellant at 6. On April 8, 2004, the District Court issued an Order staying the court's March 31 Order pending resolution of the Government's motion for reconsideration.

On September 2, 2004, the District Court denied the Government's motion for reconsideration, holding that "[t]he plain language of FOIA states that `[a]ny reasonably segregable portion of the record shall be provided to any person requesting such record after deletion of the portions which are exempt.'" Judicial Watch, Inc. v. DOJ, 337 F.Supp.2d 183, 185 (D.D.C.2004) (quoting 5 U.S.C. § 552(b)) (final alteration in original). The District Court reinstated its March 31 Order, "emphasiz[ing] that it is not dictating what, or even how much, information must be released." Id. at 187. Rather, the trial court rejected DOJ's argument "that defendants need not even attempt to separate factual material from documents protected by the work-product privilege." Id. The District Court granted the Government's motion for a stay pending appeal, and the Government filed a timely notice of appeal on October 27, 2004.

As a preliminary matter, Judicial Watch argues that, because the District Court's Orders of March 31 and September 2 "do not require the government to disclose the records in dispute in this case until they first undertake certain actions, the outcome of which is not known, the orders are not final and, therefore, subject to appeal." Br. for Appellee at 1. Because we find that the District Court's Orders are final and appealable, we reject Judicial Watch's suggestion that we lack jurisdiction to consider this matter.

The District Court's March 31 Order held that the Government "[had] not made a good faith effort to provide [Judicial Watch] with a `reasonably segregable portion' of each document," and ordered the Government to "file with [Judicial Watch] and the Court appropriately redacted versions of each document by no later than April 12, 2004." Order (Mar. 31, 2004) at 3 (emphasis added). In other words, the March 31 Order compelled the Government to disclose particular documents. The District Court's subsequent September 2 Order, denying the Government's motion for reconsideration, did not in any way negate the March 31 Order, or its requirement that DOJ release redacted versions of the nine emails. The District Court knew that the Government's principal argument was that there was nothing to release, because every document, in its entirety, was "work product" and thus exempt from disclosure. The District Court nonetheless reaffirmed its March 31 Order, and then granted a stay pending appeal.

On this record, there is no doubt that the Government's appeal is not premature. "In a[] FOIA case a `final decision' is an order by the District Court requiring release of documents by the Government to the plaintiff. . . ." Green v. Dep't of Commerce, 618 F.2d 836, 841 (D.C.Cir.1980). That is precisely the situation here. The trial court unequivocally rejected the Government's legal position regarding the substantive protection afforded by the attorney work-product doctrine under Exemption 5 of FOIA, and ordered the Government to disclose materials for which it claimed exemption. In these circumstances, the Orders of the District Court are final and appealable. "To hold otherwise would be to force the government to let the cat out of the bag, without any effective way of recapturing it if the district court's directive was ultimately found to be erroneous." Irons v. FBI, 811 F.2d 681, 683 (1st Cir.1987).

On the merits, our review of the grant of summary judgment is de novo, applying the same standards as the District Court. See Schrecker v. DOJ, 349 F.3d 657, 661-62 (D.C.Cir.2003); Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994).

Exemption 5, 5 U.S.C. § 552(b)(5), states that FOIA "does not apply to matters that are . . . 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." FOIA's "reasonably segregable" provision, under 5 U.S.C. § 552(b), states:

Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made.

The dispute in this case requires us to explain how these two provisions work in conjunction.

FOIA Exemption 5 incorporates the work-product doctrine and protects against the disclosure of attorney work product. The work-product doctrine shields materials "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." FED. R. CIV. P. 26(b)(3); Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C.Cir.1997). And, as the Supreme Court has made clear, the doctrine should be interpreted broadly and held largely inviolate:

Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the "work product of the lawyer." Were such materials open to opposing counsel on mere demand, much of what is now put down in...