Oversight v. U.S. Dep't of Justice

• Citation: 45 F.4th 579
• Decision Date: 16 August 2022
• Docket Number: 21-1266-cv,August Term 2021
• Parties: AMERICAN OVERSIGHT, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Federal Bureau of Investigation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

45 F.4th 579

AMERICAN OVERSIGHT, Plaintiff-Appellant,

v.UNITED STATES DEPARTMENT OF JUSTICE, Federal Bureau of Investigation, Defendants-Appellees.

No. 21-1266-cv

August Term 2021

United States Court of Appeals, Second Circuit.

Argued: May 18, 2022

Decided: August 16, 2022

Katherine M. Anthony (John E. Bies, Emma Lewis, Sarah Colombo, on the brief), American Oversight, Washington, DC, for Plaintiff-Appellant.

Sarah S. Normand, Assistant United States Attorney (Christopher Connolly, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Defendants-Appellees.

Before: Raggi, Wesley, and Carney, Circuit Judges.

Reena Raggi, Circuit Judge:

Plaintiff American Oversight brought this Freedom of Information Act ("FOIA") suit in the United States District Court for the Southern District of New York (Lorna G. Schofield, Judge) to compel defendants, the United States Department of Justice ("DOJ") and the Federal Bureau of Investigation ("FBI"), to disclose notes and memoranda memorializing interviews conducted by federal prosecutors and law enforcement agents in the course of a criminal investigation into possible campaign-finance-law violations, and subsequent obstruction of justice, by persons associated with the Donald J. Trump 2016 presidential campaign (the "Investigation").¹ On the parties’ cross-motions for summary judgment, the district court ruled in favor of defendants, holding that the documents at issue were attorney work product, shielded from production by FOIA Exemption 5. See American Oversight v. DOJ , No. 19-CV-8215, 2021 WL 964220 (S.D.N.Y. Mar. 15, 2021).

In appealing that judgment, American Oversight now narrows its production demand. It no longer seeks production of all interview notes and memoranda generated during the Investigation. Rather, it seeks such documents only for interviews with "targets" or "subjects" of the Investigation.² It argues that because such persons were potential litigation adversaries of defendants at the time of the interviews, defendants necessarily waived any work-product protection for the requested documents by disclosing information that would be memorialized therein to these adversaries during their interviews. The argument misperceives the work-product privilege and what would constitute its waiver by disclosure to a litigation adversary in the circumstances of this case.

For the reasons explained in this opinion, we conclude that (1) defendants have shown that the documents at issue are work product protected from disclosure by FOIA Exemption 5, and (2) American Oversight has failed to demonstrate defendants’ waiver of work-product protection. Accordingly, we affirm the challenged judgment in favor of defendants.

BACKGROUND

The background facts pertinent to this appeal derive largely from the sworn declarations of government officials in support of defendants’ motion for summary judgment and from matters of which we may take judicial notice. The declarations are those of (1) Thomas McKay, an Assistant United States Attorney ("AUSA") in the Southern District of New York ("SDNY"); (2) Ebony Griffin, a FOIA Attorney-Advisor with DOJ's Executive Office for United States Attorneys; and (3) Michael Seidel, Acting Section Chief of the FBI Record/Information Dissemination Section, Information Management Division. In FOIA cases, courts accord such declarations "a presumption of good faith," Carney v. DOJ , 19 F.3d 807, 812 (2d Cir. 1994) (internal quotation marks omitted), such that, at least as to unchallenged facts asserted therein, the declarations can be relied on to support an award of summary judgment, see Grand Cent. P'ship, Inc. v. Cuomo , 166 F.3d 473, 478 (2d Cir. 1999) (stating that summary judgment may be granted to government on basis of its own affidavits if they are sufficiently detailed and "not called into question by contradictory evidence in the record or by evidence of agency bad faith" (internal quotation marks omitted)).

I. The Investigation

Between 2018 and 2019, DOJ prosecutors in the SDNY, working in conjunction with agents of the FBI, conducted the Investigation here at issue. A single prosecution resulted, that of Trump Organization attorney Michael Cohen. On August 21, 2018, Cohen pleaded guilty to an eight-count information charging him with violations of campaign-finance, tax, and financial-fraud laws insofar as he (1) paid money to two women in amounts exceeding individual campaign contribution limits;³ (2) issued those payments from a corporation in violation of the prohibition on corporate campaign contributions; and, unrelatedly, (3) evaded personal income tax liability; and (4) made false statements to a bank to secure a loan. Prior to this FOIA action, defendants had never publicly identified any persons—other than Cohen—interviewed in the course of the Investigation, much less identified any such persons as "targets" or "subjects."⁴

II. The FOIA Request

American Oversight describes itself as a "nonpartisan, nonprofit watchdog that uses public records requests backed by litigation to fight corruption, drive accountability, and defend democracy."⁵ On July 22, 2019, it filed with both DOJ and the FBI the FOIA request here at issue. Therein, American Oversight sought production of the following materials:

1. All FBI form 302s reflecting the content of all interviews conducted as a part of the government's investigation of potential campaign finance violations committed by President Trump, the Trump Organization, Michael Cohen, or others representing President Trump or the Trump Organization, as well as any other investigation of other potential violations related to that investigation (including, for example, obstruction of justice)....

2. All other records intended to summarize, memorialize, or record witness interviews or witness statements collected or used in the investigation(s) described in Item 1, including written proffers, written summaries of oral proffers, transcripts or recordings of any witness interviews or statements, and any other record summarizing, memorializing, or reproducing the content of witness interviews or statements collected or used in connection with the above-described investigation.

J. App'x at 18–19. American Oversight requested such materials for the period from September 1, 2016, through the date of search and asked that they be produced "at least within twenty business days." Id. It submitted that expedited production was warranted by "widespread and exceptional media interest" in the Investigation and "possible questions concerning the government's integrity" in conducting it, particularly "public concerns that DOJ has not pursued criminal charges against [then-President Trump] because of his position of power rather than the absence of evidence of his guilt." Id. at 21–22.

III. The FOIA Action

A. The Complaint

On September 4, 2019, after defendants still had not produced the requested materials, American Oversight commenced this lawsuit, charging defendants with violating the FOIA and requesting an order that, among other things, would direct defendants (1) to conduct the necessary searches expeditiously, and (2) to produce "any and all non-exempt records responsive to American Oversight's FOIA request and indexes justifying the withholding of any responsive records withheld under claim of exemption." Id. at 16. In their October answer, defendants stated that they "had not completed processing of the FOIA request," id. at 29, and asserted as a defense that "[s]ome or all of the requested records and information are exempt from disclosure, in whole or in part," id. at 31.

B. The Withheld or Redacted Documents

The parties subsequently conferred, whereupon, on February 7, 2020, DOJ—acting on behalf of both defendants—identified 30 responsive documents, five of which it produced in part and 25 of which it withheld in full. On June 19, 2020, DOJ produced redacted versions of two previously withheld documents. To justify its withholdings and redactions, DOJ invoked FOIA Exemptions 3, 5, 6, 7(A), 7(C), and 7(E). See 5 U.S.C. § 552(b). American Oversight agreed not to challenge these exemptions as to three of the 30 identified documents, leaving 27 at issue.

AUSA McKay described the 27 disputed documents as interview records, of which 21 are Form FD-302s ("302s") produced by FBI special agents;⁶ three are interview memoranda prepared by SDNY special agents; and three are handwritten notes, two prepared by prosecutors and one by an FBI special agent. McKay Decl. ¶ 11. McKay further stated that for "22 of the 27" memorialized interviews, "prosecutors conducted the questioning." Id. ¶ 14. The other five interviews were conducted by agents (with a prosecutor participating in one such interview by telephone), but only after discussions with prosecutors as to "the topics to be covered and certain questions to be asked." Id.

In terms of substantive information, the redacted documents disclose the identity of three interviewees—Michael Cohen, Keith Davidson, and John Gauger—who had already publicly acknowledged being interviewed. The documents further reveal that Cohen and Davidson were interviewed pursuant to "proffer agreements."⁷ Redactions otherwise delete from the documents the contents of these persons’ interviews, except for the following previously published statement by Cohen:

COHEN did not want the payments to "come out," and COHEN felt that, after the search of his premises, he was "an open book[.]" COHEN felt that his false statements to the House of Representatives and the Senate were "a big concern."

J. App'x at 158.⁸

C. Summary Judgment Motions

The parties cross-moved for summary judgment. In support of their motion, defendants argued, inter alia , that the 27 interview records at issue were attorney work product, shielded from production by FOIA Exemption 5.⁹ To support their claim, defendants primarily relied on AUSA McKay's...