Brennan Center for Justice v. United States Department of Justice
697 F.3d 184
| 2d Cir. | 2012Background
- Brennan Center sought three DOJ OLC memoranda under FOIA, withholding under Exemption 5; district court ordered disclosure after in-camera review; court affirmed disclosure for one memo but reversed for two; relevance to whether memoranda were adopted, incorporated by reference, or part of agency “working law.”
- Memoranda at issue: February 2004 memo (predecisional/deliberative), July 2 and July 29, 2004 drafts (predecisional/deliberative); district court found they were adopted or incorporated by reference and thus not exempt.
- Agency positions: USAID and HHS initially treated pledge requirement as applicable only to foreign entities, later policy changed to apply domestically; OLC’s September 2004 letter and public statements were cited as to adoption of policy.
- Court’s analysis: applying Sears and related precedents, the February memo was not “working law” but the February memo’s views were adopted by reference in public communications, removing exemption; July drafts were not shown to have been expressly adopted or incorporated by reference or become working law, so they remain protected.
- Conclusion: February memo disclosure affirmed; July memoranda disclosure reversed; remand to enter judgment for defendants as to July memoranda.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 5 precludes disclosure of the February memo | February memo is not working law; agency used it to adopt policy | FOIA exemption protects predecisional, deliberative material | February memo disclosure affirmed |
| Whether July 2 and July 29 drafts were expressly adopted or incorporated by reference | July drafts formed part of the agency policy | No express adoption or incorporation shown; still deliberative | July drafts not disclosed; reversed for those memos |
| Whether the February memo loses Exemption 5 protection also due to attorney-client privilege | Adoption by reference waives privilege | Privilege preserved unless adoption occurs | Waiver via adoption by reference; attorney-client privilege not controlling for February memo |
Key Cases Cited
- Sears, Roebuck & Co. v. NLRB, 421 U.S. 132 (1975) (working law and predecisional documents analysis under Exemption 5)
- La Raza v. DOJ, 411 F.3d 350 (2d Cir. 2005) (adoption/incorporation by reference and working law principles)
- Coastal States Gas Corp. v. DOE, 617 F.2d 854 (D.C. Cir. 1980) (working law and adoption concepts in Exemption 5)
- Grumman Aircraft Eng’g Corp. v. Renegotiation Bd., 421 U.S. 168 (1975) (limits of Exemption 5; adoption/incorporation by reference vs. final opinions)
- Public Citizen, Inc. v. OMB, 598 F.3d 865 (D.C. Cir. 2010) (working law criteria and public policy disclosure)
- Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) (examples of working law in agency interpretations)
- Wood v. FBI, 432 F.3d 78 (2d Cir. 2005) (limits of exemption when adopted by reference; work-product context)