New York Times Company v. U.S. Department of Justice
Civil Action No. 2017-0087
| D.D.C. | Oct 20, 2017Background
- Charlie Savage (New York Times reporter) requested a classified May 24, 1984 OLC memorandum from Theodore Olson and its cover letter concerning NSA electronic surveillance; OLC withheld both documents.
- Plaintiffs sued under FOIA after OLC failed to timely respond; parties cross-moved for summary judgment on whether FOIA Exemption 5 (attorney-client privilege) applies.
- OLC (through declarations by Special Counsel Paul Colborn) says the memorandum provided legal advice to the Attorney General based on confidential NSA information and was transmitted to the NSA; the memo is classified.
- The Times argued the memo: (1) lacked confidential client information because advice was to the Attorney General (not NSA), (2) was not kept confidential (waiver), and (3) even if privileged, had become the Department’s "working law."
- The Court found the NSA was a client of DOJ/OLC for purposes of the memo, that privilege was not waived, and that the memo was not adopted as working law by the Attorney General or NSA.
- Result: Court granted the Government summary judgment and denied plaintiffs’ cross-motion; Exemption 5 protects the Olson memo and cover letter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Olson memo is covered by the attorney-client privilege (Exemption 5) | Memo not privileged because OLC advised the Attorney General, and the Attorney General (not NSA) was the client; therefore information from NSA is third-party information | OLC/DOJ: NSA sought and received legal advice via OLC (through the Attorney General); memo contains confidential client communications and legal advice based on NSA information | Held: Privilege applies — NSA was a client of DOJ/OLC for this memo and the memo contains confidential attorney-client communications |
| Whether privilege was waived by disclosure or internal circulation | Memo has not been kept confidential; internal references and some DOJ attorneys saw it, suggesting waiver | Memo is classified, access was limited to those with need-to-know; internal circulation was to persons providing or receiving legal advice, not to third parties | Held: No waiver — record shows limited, need-to-know access; no public disclosure established |
| Whether the memo became the agency’s "working law" and thus is not exempt | Memo has been adopted and relied upon by DOJ/NSA as guiding policy (e.g., described as "seminal"; cited in later DOJ memos) | OLC opinions are advisory; absent affirmative adoption and public invocation by the Attorney General or NSA, an OLC memo does not become agency working law | Held: Not working law — no evidence Attorney General or NSA publicly adopted or relied on the memo as authoritative policy |
| Whether Exemption 5 can bar disclosure of classified OLC opinions to the press | Plaintiffs: public interest outweighs secrecy where memo addresses constitutional questions of surveillance | Government: Exemption 5 encompasses attorney-client privileged communications, including classified legal advice; narrow construction of exemptions does not override privilege policy interests | Held: Exemption 5 applies here; the privilege protects disclosure despite public interest arguments |
Key Cases Cited
- Calhoun v. Johnson, 632 F.3d 1259 (D.C. Cir. 2011) (summary judgment standard and viewing facts for nonmoving party)
- U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (U.S. 1989) (agency bears burden to justify withholding under FOIA)
- Tax Analysts v. IRS, 294 F.3d 71 (D.C. Cir. 2002) (Exemption 5 incorporates civil discovery privileges including attorney-client)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1979) ("working law" doctrine and deliberative process privilege limits)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (purpose of attorney-client privilege to encourage full and frank communications)
- Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1 (D.C. Cir. 2014) (OLC opinion not "working law" absent agency adoption)
- In re Sealed Case, 737 F.2d 94 (D.C. Cir. 1984) (attorney-client privilege applies where attorney rendered legal advice based on client confidential information)
- Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977) (privilege waived when information broadly shared without limitation)
- FTC v. GlaxoSmithKline, 294 F.3d 141 (D.C. Cir. 2002) (no waiver when documents shared within organization for legal advice and need-to-know)