Lucaj v. Federal Bureau of Investigation
852 F.3d 541
6th Cir.2017Background
- Plaintiff Doda Lucaj submitted FOIA requests to the FBI seeking records related to his 2006 arrest and investigation tied to alleged attacks in Montenegro; FBI produced some records but withheld others as exempt.
- Two eight-page Requests for Assistance (RFAs) were created by DOJ’s Office of International Affairs (OIA): one sent to Austria under an MLAT, and another sent to an unnamed foreign government.
- The RFAs contained both requests for foreign assistance and substantive DOJ/FBI information (facts, legal theories, summaries, statutory bases, and identities).
- FBI asserted Exemption 5 (inter-/intra-agency deliberative materials) and later invoked the common-interest doctrine to treat communications with foreign partners as within Exemption 5.
- The district court accepted the common-interest theory and granted summary judgment to the Government; the Sixth Circuit reversed, holding Exemption 5 applies only to communications between U.S. government agencies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RFAs to foreign governments qualify as Exemption 5 "inter-agency or intra-agency" memoranda | RFAs are not intra-agency and thus not exempt because recipients are foreign, not U.S., agencies | RFAs are inter-agency because the common-interest doctrine treats aligned foreign partners as equivalent to agencies for Exemption 5 purposes | Reversed: Exemption 5 requires both source and recipient to be U.S. government agencies; RFAs to foreign governments do not qualify |
| Whether the common-interest doctrine expands Exemption 5 to non-U.S. entities | Common-interest doctrine should not apply; statutory text limits "agency" to U.S. authorities | Common-interest doctrine and consultant corollary allow withholding when interests align or confidentiality is expected | Rejected: Supreme Court precedent (Klamath) and statutory text prevent diluting the inter-/intra-agency requirement via common-interest or consultant corollary |
| Whether documents could be withheld under other FOIA exemptions (e.g., Exemptions 3, 6, 7) | Lucaj argued RFAs were not exempt under Exemption 5; other exemptions require separate analysis | Government contended Exemption 3 (MLAT/other statutes) or Exemptions 6/7 might apply | Remanded: Court limited its holding to Exemption 5 and remanded for consideration of other exemptions |
| Whether plaintiff forfeited or waived response to common-interest argument | Lucaj argued he timely addressed the doctrine at the hearing and did not forfeit | Government suggested Lucaj forfeited/waived the issue because it was raised in reply | Court held Lucaj did not forfeit or waive; he addressed the issue at hearing and provided adequate argumentation |
Key Cases Cited
- Detroit Free Press Inc. v. DOJ, 829 F.3d 478 (6th Cir. 2016) (FOIA favors disclosure; exemptions are narrowly construed)
- Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) (Exemption 5 requires communications be inter- or intra-agency; threshold is substantive)
- Hunton & Williams v. DOJ, 590 F.3d 272 (4th Cir. 2010) (discusses common-interest doctrine under Exemption 5)
- Nat’l Inst. of Military Justice v. DOD, 512 F.3d 677 (D.C. Cir. 2008) (consultant corollary extending Exemption 5 to outside consultants under confidentiality/relationship factors)
- Rugiero v. DOJ, 257 F.3d 534 (6th Cir. 2001) (de novo review standard for district court FOIA determinations)
- Schell v. HHS, 843 F.2d 933 (6th Cir. 1988) (exemptions construed narrowly; government bears burden of proof)