925 F.3d 576
2d Cir.2019Background
- The ACLU requested records under FOIA about the Government’s legal authority for post‑9/11 surveillance (including materials about Executive Order 12,333 and the “Stellar Wind” program); after administrative exhaustion it sued to compel disclosure.
- The Government produced many pages but withheld several documents, invoking FOIA Exemptions 1, 3, and 5 (classified information; statute; and privileges including attorney‑client and deliberative process).
- The District Court granted summary judgment for the Government, sustaining withholdings of (1) a 2004 OLC memorandum ("OLC 10") under Exemption 5 and (2) six intelligence program documents under Exemptions 1 and 3.
- The ACLU appealed, arguing Exemption 5 should not protect OLC 10 because the Government "relied on," "adopted," or "incorporated" that memorandum into agency policy (i.e., it became "working law").
- The Government had made public statements, a DOJ White Paper, Inspectors General reports, and later released some OLC memoranda; the question was whether those disclosures transformed OLC 10 from privileged advice into binding agency law/policy.
- The Second Circuit affirmed: OLC 10 remained protected by attorney‑client and deliberative process privileges because the record lacked evidence that the agency treated OLC 10 as binding (adoption) or that a final agency opinion expressly incorporated it (incorporation by reference). The intelligence documents were properly withheld under Exemptions 1 and 3. The court also declined to order reprocessing based on subsequent disclosures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OLC 10 is protected by Exemption 5 (attorney‑client and deliberative process) | OLC 10 lost privilege because Government publicly relied on it and thus it became working law or was adopted/incorporated | OLC 10 is confidential legal advice and deliberative; public statements or related publications do not transform the communication into binding agency law | OLC 10 is protected under Exemption 5; neither adoption nor incorporation by reference shown |
| When does a privileged document become "working law" such that Exemption 5 no longer applies | A document relied on operationally becomes working law and must be disclosed | Working law requires the agency to treat the document as functionally binding or to incorporate it in a final, binding opinion | ‘‘Working law’’ requires that the agency regard the document as binding; mere reliance or agreement is insufficient |
| Standard for "express adoption" or "incorporation by reference" to waive privilege | Public statements by senior officials and related publications show adoption/incorporation | Adoption requires evidence the agency acted pursuant to the document as binding; incorporation requires an explicit textual reliance in a final opinion | Adoption: shown when agency behavior or statements indicate it treats the document as binding. Incorporation: shown only when a formal opinion expressly references and relies on the document |
| Whether court should order agencies to reprocess documents in light of later disclosures | ACLU: subsequent public disclosures (IG report, OLC 8/9) warrant reprocessing now | Government: FOIA review is evaluated as of the time of the agency decision; courts should not compel reprocessing merely to check later disclosures | Declined to order reprocessing; FOIA decisions evaluated at the time made unless later developments are clearly dispositive and reprocessing already occurred |
Key Cases Cited
- N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132 (distinguishing deliberative materials from documents embodying agency "working law")
- Upjohn Co. v. United States, 449 U.S. 383 (attorney‑client privilege protects communications, not underlying facts)
- Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir.) (working law where agency treats internal memoranda as binding precedent)
- Tax Analysts v. Internal Revenue Service, 117 F.3d 607 (D.C. Cir.) (nominally advisory memos may be working law where distributed to ensure uniform, binding application)
- New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir.) (public reliance and disclosures can show that OLC advice was adopted and thereby vitiate Exemption 5)
- National Council of La Raza v. Department of Justice, 411 F.3d 350 (2d Cir.) (agency adoption of OLC memorandum as policy removes Exemption 5 protection)