802 F. Supp. 2d 185
D.D.C.2011Background
- Judicial Watch sought records about TARP-related meetings involving Kenneth Feinberg and AIG; Treasury produced 44 responsive pages and withheld 19 more; seven disputed documents were withheld/redacted under FOIA Exemptions 4 and 5.
- Disputed documents concern pre-decisional deliberations and attorney communications related to the Special Master’s review of AIG compensation under the Interim Final Rule.
- Plaintiff filed suit February 25, 2010 to compel production; Treasury moved for summary judgment; Judicial Watch cross-moved for partial release.
- Court ordered in camera review in July 2011; documents withheld under Exemptions 4 and 5 were largely upheld, with one document partially segregated for release.
- Court granted Treasury’s summary judgment as to the disputed documents except for the “Current Draft Talking Points,” which required release of non-exempt, reasonably segregable portions or a renewed exemption/protection showing.
- Decision hinges on whether the withheld materials were properly classified as deliberative, attorney-client privileged, or confidential commercial information and whether non-exempt segments could be segregated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 5 applies to the disputed documents. | Judicial Watch asserts exemptions require more than boilerplate; burdens not met. | Treasury shows pre-decisional/deliberative content and attorney-client communications. | Yes, Exemption 5 applies to the disputed documents. |
| Whether Exemption 4 applies to confidential information from AIG. | AIG materials were not confidential due to limited dissemination. | Disclosures were limited and documents contained confidential financial information. | Yes, Exemption 4 applies to the disputed material, with limited segregation. |
| Whether the non-exempt information is reasonably segregable and must be released. | Agency failed to segregate non-exempt factual material. | Non-exempt material is inextricably intertwined with exempt content. | Partially, with strict segregation required for the Current Draft Talking Points. |
Key Cases Cited
- National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974) (confidentiality based on impairment or competitive harm to information providers)
- Upjohn Co. v. United States, 449 U.S. 383 (S. Ct. 1981) (broad scope of attorney-client privilege for organizational employees)
- Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) (client organization privilege extends to authorized agents; basis for privilege scope)
- Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) (agency advice to field personnel can be privileged depending on context)
- FBI v. Abramson, 456 U.S. 615 (S. Ct. 1982) (proper focus on document content for exemption applicability)