911 F. Supp. 2d 261
S.D.N.Y.2012Background
- Fox seeks FOIA records from Treasury about government AIG restructuring and AIG bonus payments after TARP funds.
- Only 62 documents (about 438 pages) remain at issue after partial productions and negotiations.
- Treasury withheld documents under FOIA Exemption 5, invoking deliberative process and attorney-client privileges.
- Fox I and Fox II involved cross-motions for summary judgment; in camera review conducted on contested items.
- Disputed materials include drafts, emails, talking points, press releases, Q&As, and congressional relations materials related to the March 2, 2009 AIG restructuring.
- Three documents were claimed to be attorney-client privileged; others were withheld as deliberative or under other privilege theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 5 shields the 62 records | Fox contends descriptions are insufficient; some materials are non-deliberative or public facts. | Treasury argues records are inter- or intra-agency deliberations and/or privilege-appropriate. | Partially granted; some records may be released or redacted, others protected. |
| Attorney-client privilege applies to three documents | Fox challenged privilege as to 3 documents; asserted need for review of privilege scope. | Treasury asserts clear legal-advice communications; privilege applies. | Documents 3405-3412 and 3754-3757 protected; waiver issues discussed but ultimately not dispositive for those docs. |
| Waiver of challenge to attorney-client privilege | Fox raised challenge late; should be reviewed. | Fox waived by not challenging earlier; court need not rule unless necessary. | Waiver recognized for most, but three documents still reviewed and upheld for privilege under law. |
| Whether drafts and predecisional material relating to March 2 press release are deliberative | Drafts may reflect post-decision packaging and not substantive deliberations. | Drafts reflect evolving policy and internal deliberations necessary to form final policy. | Most March 2 press release-related drafts are predecisional/deliberative and protected; some limited material released after in-camera review. |
| Release of non-deliberative or factual portions | Some redacted content is factual and not deliberative; should be disclosed. | Redacted portions contain opinions or policy development; disclose only non-deliberative parts. | Factual content unredacted where appropriate; certain non-deliberative material released; remaining deliberative redacted. |
Key Cases Cited
- Envt’l Prot. Agency v. Mink, 410 U.S. 73 (S. Ct. 1973) (FOIA exemptions are exclusive; public disclosure favored)
- U.S. Dep’t of Justice v. Julian, 486 U.S. 1 (S. Ct. 1988) (broadened view in favor of disclosure; exemptions narrowly construed)
- Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999) (gloss on balancing disclosure against exemptions; deliberative process framework)
- N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132 (S. Ct. 1975) (deliberative process scope and internal decisionmaking documents)
- Tigue v. U.S. Dep’t of Justice, 312 F.3d 70 (2d Cir. 2002) (predecisional and deliberative test for documents)
- New York Times Co. v. U.S. Dep’t of Def, 499 F. Supp. 2d 501 (S.D.N.Y. 2007) (drafts not automatically privileged; need function and significance in decisionmaking)
- National Day Laborer Org. Network v. U.S. Immigration and Customs Enforcement Agency, 827 F. Supp. 2d 242 (S.D.N.Y. 2011) (agency affidavits require particularized showing; predecisional/deliberative must be shown)
- Department of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (S. Ct. 2001) (privilege scope and conditions for Exemption 5)
- Upjohn Co. v. United States, 449 U.S. 383 (S. Ct. 1981) (attorney-client privilege in corporate context; need for confidential legal advice)
- City of Erie v. United States, 473 F.3d 413 (2d Cir. 2007) (scope and limits of attorney-client privilege in government context)