Shapiro v. United States Department of Justice
2013 U.S. Dist. LEXIS 133325
| D.D.C. | 2013Background
- Jeffrey Stein filed a FOIA request seeking the DOJ/EOUSA “Brief Bank,” an intranet compilation of selected FOIA-related court filings, case captions, brief authors, summaries, identified key issues, and sometimes supporting declarations.
- EOUSA denied the request, citing Exemption 5 (attorney work product) and other exemptions administratively; in litigation EOUSA relied solely on Exemption 5.
- The Brief Bank is maintained on DOJ’s intranet, accessible only to DOJ personnel, and was described as a resource created by an EOUSA attorney for anticipated FOIA litigation.
- The defendant provided little detail about how the Brief Bank was compiled, its selectivity, size, update frequency, or selection criteria; plaintiff noted many entries were publicly filed court materials.
- The court framed the legal question as whether (1) the Brief Bank and its contents qualify as intra-agency records under Exemption 5 and (2) whether compilation and component parts are protected attorney work product.
- The court denied the government’s summary judgment motion, finding EOUSA failed to meet its burden to justify withholding under Exemption 5 for the Brief Bank or its components.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Brief Bank as compiled is protected by the attorney work-product doctrine and thus exempt under FOIA Exemption 5 | Brief Bank largely contains publicly filed materials and neutral summaries, so it is not protectable work product | The compilation was prepared by an EOUSA attorney "in anticipation of FOIA litigation" and is an intra-agency work-product tool for DOJ attorneys | Court: Rejected; compilation as a whole is not work product because it neither reveals attorney mental impressions nor was shown to be prepared for specific anticipated litigation |
| Whether court filings included in the Brief Bank are exempt under Exemption 5 | Such filings are public and cannot be withheld | EOUSA asserted the compilation (including filings) is protected because stored on intranet and compiled by attorneys | Court: Court filings are not intra-agency memoranda and Exemption 5 does not apply; public court filings are not shielded |
| Whether the neutral summaries and "key issues" documents in the Brief Bank are protected work product | Summaries are neutral, akin to an agency manual, and do not disclose strategy; therefore not protected | Summaries and key-issue identifications were created by attorneys in anticipation of FOIA litigation and are intra-agency work product | Court: Rejected; summaries are neutral analyses (not litigation-specific strategy) and defendant did not carry its burden to show they were prepared in anticipation of litigation |
| Whether the agency met its FOIA burden to justify withholding under Exemption 5 on summary judgment | FOIA favors disclosure; agency must provide specific, detailed affidavits showing applicability of exemption | EOUSA provided largely conclusory declarations that the Brief Bank was a litigation tool and work product | Court: Agency failed its burden; conclusory assertions insufficient for summary judgment withholding under Exemption 5 |
Key Cases Cited
- Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1 (D.C. Cir. 2011) (FOIA’s transparency purpose and agency burden on exemptions)
- U.S. Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) (Exemption 5 requires records be inter- or intra-agency and fall within a judicial privilege)
- FTC v. Grolier, Inc., 462 U.S. 19 (1983) (Exemption 5 must be narrowly construed; work-product privilege treated categorically under FOIA)
- Hickman v. Taylor, 329 U.S. 495 (1947) (foundational policy rationale for attorney work-product protection)
- Judicial Watch v. U.S. Dep’t of Justice, 432 F.3d 366 (D.C. Cir. 2005) (work-product doctrine should be interpreted broadly but requires showing documents reveal litigation strategy)
- Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) (any part of a document prepared in anticipation of litigation may be protected)
- Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) (neutral, objective analyses akin to agency manuals are not prepared in anticipation of litigation and are not protected)
- In re Sealed Case, 146 F.3d 881 (D.C. Cir. 1998) (functional test: documents must be prepared because of prospect of litigation; specific-claim standard for investigatory materials)
- Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992) (documents prepared in anticipation of foreseeable litigation can be protected when they disclose litigation strategy)