17‐2066‐cv The New York Times Company and Charlie Savage v. United States Department of Justice
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _____________________
AUGUST TERM 2018
(ARGUED: DECEMBER 13, 2018 DECIDED: SEPTEMBER 27, 2019)
No. 17‐2066 _____________________
THE NEW YORK TIMES COMPANY AND CHARLIE SAVAGE
Plaintiffs‐Appellee‐Cross‐Appellants,
‐v.‐
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant‐Appellant‐Cross‐Appellee.
1 Before: JACOBS and CALABRESI, Circuit Judges, and RAKOFF, District Judge.1 _______________________
At issue in this case is whether a series of memoranda and accompanying exhibits prepared by a U.S. Attorney acting at the direction of then‐Attorney General Eric Holder are protected from disclosure under Exemption 5 of the Freedom of Information Act. The district court (Oetken, J.) held that, because the memoranda were “expressly adopted” by Holder, Exemption 5 had been overcome, but a subsequent decision of this Court, American Civil Liberties Union v. National Security Agency, 925 F.3d 576 (2d Cir. 2019), has now clarified that the “express adoption” exception to Exemption 5 does not apply in the instant context. This leaves the issue of waiver. The Court concludes that Mr. Holder’s public statements only waived the work product privilege with respect to one of the memoranda’s conclusions, so that only the portions of the memoranda and exhibits related to that conclusion must be disclosed. Accordingly, the judgment of the district court is hereby AFFIRMED IN PART and REVERSED IN PART.
_______________________
APPEARING FOR APPELLANT: JEANNETTE A. VARGAS, Assistant U.S. Attorney United States Attorney’s Office for the Southern District of New York New York, NY APPEARING FOR APPELLEES: DAVID EDWARD MCCRAW The New York Times Company New York, NY
1 Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. 2 _______________________
RAKOFF, District Judge:
Plaintiffs‐appellees The New York Times and reporter Charlie Savage
(collectively “The Times”) seek access under the Freedom of Information Act
(“FOIA”) to five internal memoranda of defendant‐appellant the Department of
Justice (“DOJ”) and accompanying exhibits. These memoranda and exhibits
detail DOJ’s legal reasoning and factual analysis in making the determinations,
first, that it would formally investigate only two of more than one hundred
alleged instances of abuse of detainees allegedly held overseas in the custody of
the Central Intelligence Agency (“CIA”) and, subsequently, that it would not
bring criminal charges in either of those two cases.
DOJ argues, and the plaintiffs do not contest, that these memoranda and
exhibits were attorney work product when drafted, which would generally
shield them from disclosure under FOIA’s Exemption 5. Plaintiffs argue,
however, that two public statements thereafter made by then‐Attorney General
Eric Holder had the effect of (a) expressly adopting or incorporating by reference
the contents and reasoning of the memoranda and exhibits or (b) waiving the
work product protection under common law principles, in either case removing
3 them from Exemption 5 protection. The District Court granted, in relevant part,
the Times’s motion for summary judgment, holding that Attorney General
Holder’s public statements expressly adopted the memoranda by relying on their
reasoning. Subsequently, however, a panel of this Court, in American Civil
Liberties Union v. National Security Agency, 925 F.3d 576 (2d Cir. 2019), clarified
the reach of the “expressly adopted” exception to Exemption 5 in ways that make
the district court’s approach untenable.2 Nonetheless, common law principles of
waiver, which are applicable to Exemption 5, require disclosure of some limited
portions of the memoranda and exhibits. We therefore affirm in part and reverse
in part.
BACKGROUND
The Times seeks access under FOIA to five memoranda (and
accompanying exhibits) written by U.S. Attorney John Durham to then‐Attorney
General Eric Holder.3 These memoranda and exhibits contain Durham’s
recommendations not to open formal criminal investigations in all but two
2 Because American Civil Liberties Union was decided after the instant appeal had been fully briefed and argued, the parties here were permitted to file supplemental briefs describing the effect of that decision on the instant appeal, as well as arguing the issue of common law waiver not fully considered in the previous briefs. 3 Mr. Durham is currently the U.S. Attorney for the District of Connecticut, but at the times relevant to this appeal was the Acting U.S. Attorney for the Eastern District of Virginia. 4 instances of the CIA’s alleged mistreatment of detainees overseas in the years
following the September 11, 2001 attacks, and not to pursue criminal charges in
those two cases.
As the two District Court opinions below explain in more detail, see 138 F.
Supp. 3d 462 (S.D.N.Y. 2015) and 235 F. Supp. 3d 522 (S.D.N.Y. 2017), the
investigations at issue began in January 2008 when a previous Attorney General,
Michael Mukasey, appointed Durham to lead a criminal investigation into the
CIA’s destruction of video tapes of detainee interrogations abroad. In April 2009,
Holder expanded Durham’s mandate, directing him to investigate potential
violations of law (such as “waterboarding”) in connection with the interrogations
themselves. 138 F. Supp. 3d at 467. Durham proceeded to investigate 101 alleged
incidents of CIA mistreatment of detainees. Id. On May 26, 2011, Durham sent a
confidential memorandum to Holder and Deputy Attorney General James Cole,
recommending that the Department open formal criminal investigations into
only two of the alleged incidents — in both of which the respective detainee had
died in custody — and to close the informal preliminary investigations of the
other ninety‐nine. Id. Durham also provided two additional reports, with a total
5 of eleven exhibits, dated December 14, 2010 and May 26, 2011, detailing further
support for his recommendations to open the two formal investigations. Id.
On June 30, 2011, Holder issued a press release accepting Durham’s
recommendations. 138 F. Supp. 3d at 467‐68. In pertinent part, the release read as
follows:
On August 24, 2009, based on information the Department received
pertaining to alleged CIA mistreatment of detainees, I announced that I
had expanded Mr. Durham’s mandate to conduct a preliminary review
into whether federal laws were violated in connection with the
interrogation of specific detainees at overseas locations. I made clear at
that time that the Department would not prosecute anyone who acted in
good faith and within the scope of the legal guidance given by the Office
of Legal Counsel regarding the interrogation of detainees. Accordingly,
Mr. Durham’s review examined primarily whether any unauthorized
interrogation techniques were used by CIA interrogators, and if so,
whether such techniques could constitute violations of the torture statute
or any other applicable statute.
6 In carrying out his mandate, Mr. Durham examined any possible CIA
involvement with the interrogation of 101 detainees who were in United
States custody subsequent to the terrorist attacks of September 11, 2001, a
number of whom were determined by Mr. Durham to have never been in
CIA custody. He identified the matters to include within his review by
examining various sources including the Office of Professional
Responsibility’s report regarding the Office of Legal Counsel memoranda
related to enhanced interrogation techniques, the 2004 CIA Inspector
General’s report on enhanced interrogations, additional matters
investigated by the CIA Office of Inspector General, the February 2007
International Committee of the Red Cross Report on the Treatment of
Fourteen “High Value Detainees” in CIA Custody, and public source
information.
Mr. Durham and his team reviewed a tremendous volume of information
pertaining to the detainees. That review included both information and
matters that had never previously been examined by the Department. Mr.
Durham has advised me of the results of his investigation, and I have
7 accepted his recommendation to conduct a full criminal investigation
regarding the death in custody of two individuals. Those investigations
are ongoing. The Department has determined that an expanded criminal
investigation of the remaining matters is not warranted.
Statement of the Attorney General Regarding Investigation into the Interrogation
of Certain Detainees, Dep’t Just. (June 30, 2011).
Over the next fourteen months, Durham further investigated the two
detainee deaths, but ultimately concluded that DOJ should not file charges in
those cases. He communicated these recommendations in two additional
memoranda addressed to Eric Holder and the Deputy Attorney General, dated
March 14, 2012 and July 11, 2012. 138 F. Supp. 3d. at 468. On August 30, 2012,
Holder adopted both recommendations in a second press release, which read as
[Mr.] John Durham has now completed his investigations, and the
Department has decided not to initiate criminal charges in these matters.
In reaching this determination, Mr. Durham considered all potentially
8 applicable substantive criminal statutes as well as the statutes of
limitations and jurisdictional provisions that govern prosecutions under
those statutes. Mr. Durham and his team reviewed a tremendous volume
of information pertaining to the detainees. That review included both
information and matters that were not examined during the Department’s
prior reviews. Based on the fully developed factual record concerning the
two deaths, the Department has declined prosecution because the
admissible evidence would not be sufficient to obtain and sustain a
conviction beyond a reasonable doubt.
During the course of his preliminary review and subsequent
investigations, Mr. Durham examined any possible CIA involvement with
the interrogation and detention of 101 detainees who were alleged to have
been in United States custody subsequent to the terrorist attacks of
September 11, 2001. He determined that a number of the detainees were
never in CIA custody. Mr. Durham identified the matters to include within
his review by examining various sources including the Office of
Professional Responsibility’s report regarding the Office of Legal Counsel
9 memoranda related to enhanced interrogation techniques, the 2004 CIA
Inspector General’s report on enhanced interrogations, additional matters
investigated by the CIA Office of Inspector General, the February 2007
International Committee of the Red Cross Report on the Treatment of
Fourteen ‘High Value Detainees’ in CIA Custody, and public source
Mr. Durham and his team of agents and prosecutors have worked
tirelessly to conduct extraordinarily thorough and complete preliminary
reviews and investigations. I am grateful to his team and to him for their
commitment to ensuring that the preliminary review and the subsequent
investigations fully examined a broad universe of allegations from
multiple sources. I continue to believe that our Nation will be better for it.
Statement of Attorney General Eric Holder on Closure of Investigation into the
Interrogation of Certain Detainees, Dep’t Just. (Aug. 30, 2012).
On April 11, 2014, the New York Times submitted an FOIA request
seeking from the DOJ “any reports to the attorney general describing or
10 presenting findings” from Mr. Durham’s investigations. After DOJ declined to
produce these documents, the Times filed suit in the District Court on May 28,
2014. DOJ subsequently provided an index stating that it had withheld eighteen
responsive memoranda under various FOIA exemptions. The parties cross‐
moved for summary judgment.
The District Court granted in part and denied in part each party’s motion
for summary judgment. As relevant to this appeal, which covers only five of the
memoranda and associated exhibits described above, the Court held that
Exemption 5 did not apply to the memoranda and exhibits because Holder had
“expressly adopted” them through his public statements. 138 F. Supp. 3d at 476‐
79. However, the Court allowed redactions of the portions of the documents and
their exhibits that did not relate to “Durham’s reasoning regarding the
sufficiency of the evidence or the applicable federal law,” as well as redactions
pursuant to other FOIA exemptions. Id. at 478‐79; 235 F. Supp. 3d at 542. DOJ
then brought this appeal, contending that Exemption 5 shields these memoranda
and exhibits from disclosure in their entirety.
11 DISCUSSION
We review de novo the District Court’s grant of summary judgment in an
FOIA suit. Am. Civil Liberties Union v. Nat’l Sec. Agency, 925 F.3d 576 (2d Cir.
2019); Halpern v. F.B.I., 181 F.3d 279, 287 (2d Cir. 1999). We begin by reviewing
the legal framework that governs the case, and then apply this framework to the
relevant facts.
A. Legal Framework
1. FOIA
The Freedom of Information Act, 5. U.S.C. § 552, requires federal
departments and agencies to “make available to the public” all of their
information except for that covered by the specific exceptions enumerated in §
552(b). FOIA is a far‐reaching statute. It allows the public to access “virtually
every document generated by an agency,” unless an exception applies. N.L.R.B.
v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975).
FOIA “adopts as its most basic premise a policy strongly favoring public
disclosure of information in the possession of federal agencies.” Halpern v. F.B.I.,
181 F.3d 279, 286 (2d Cir. 1999). The statute “seeks to permit access to official
information long shielded unnecessarily from public view and attempts to create
12 a judicially enforceable public right to secure such information from possibly
unwilling official hands.” Envtl. Prot. Agency v. Mink, 410 U.S. 73, 80 (1973).
At the same time, “important interests [are] served by [FOIA’s]
exemptions.” Food Mktg. Inst. v. Argus Leader Media, No. 18‐481, 588 U.S. __,
slip op. at 11 (2019) (quoting F.B.I. v. Abramson, 456 U.S. 615, 630‐31 (1982)).
These exemptions “are as much a part of FOIA’s purposes and policies as the
statute’s disclosure requirement,” Id. (alterations omitted) (quoting Encino
Motorcars, LLC v. Navarro, No. 16‐1362, 584 U.S. __, slip op. at 9 (2018)).
2. FOIA Exemption 5 and the Attorney Work Product Privilege
One of the specifically‐enumerated exemptions from FOIA’s general rule
in favor of disclosure is Exemption 5, which allows agencies to withhold “inter‐
agency or intra‐agency memorandums or letters that would not be available by
law to a party other than an agency in litigation with the agency . . . .” 5 U.S.C. §
552(b)(5). Courts universally read this provision to mean that agency documents
that would be privileged in ordinary civil discovery are also protected from
disclosure under FOIA. See, e.g., N.L.R.B. v. Sears Roebuck & Co., 421 U.S. 132,
148‐49 (1975); Am. Civil Liberties Union v. Nat’l Sec. Agency, 925 F.3d 576, 589
(2d Cir. 2019); New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 104 (2d
13 Cir. 2014); Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 481 (2d Cir. 1999).
Specifically, Exemption 5 incorporates three judicially‐developed (i.e., common
law) privileges: the attorney‐client privilege, the deliberative process privilege,
and the attorney work product privilege. Nat’l Council of La Raza v. U.S. Dep’t
of Justice, 411 F.3d 350, 356 (2d Cir. 2005); see also N.L.R.B. v. Sears, Roebuck &
Co., 421 U.S. at 154 (“It is equally clear that Congress had the attorney’s work‐
product privilege specifically in mind when it adopted Exemption 5 . . . .”).
The civil discovery privilege relevant here is the qualified privilege for
attorney work product.4 Famously first enunciated in the case of Hickman v.
Taylor, 329 U.S. 495 (1947), and now codified in Fed. R. Civ. P. 26(b)(3), this
doctrine prohibits one party in litigation from discovering from its adversary any
“documents and tangible things that are prepared in anticipation of litigation or
for trial by or for another party or its representative,” absent a showing of
substantial need. Not only an attorney’s mental impressions and opinions about
a case but also the results of the attorney’s factual investigations in anticipation
4 Courts sometimes refer to the attorney work product protection as a “doctrine” or “qualified” privilege, rather than an absolute “privilege,” United States v. Adlman, 134 F.3d 1194, 1204 (2d Cir. 1998), because, except in the case of “mental impressions, conclusions, opinions, or legal theories,” it can be overcome by a showing of “substantial need.” Fed. R. Civ. P. 26(b)(3)(A)- (B). Nevertheless, like most courts, we will for convenience simply refer to it as the “work product privilege.” 14 of the case may constitute attorney work product, In re Grand Jury Subpoena
Dated July 6, 2005, 510 F.3d 180, 183‐84 (2d Cir. 2007), though the former receives
stronger protection against disclosure than the latter, id.; Fed. R. Civ. P.
26(b)(3)(B).
As many courts have explained, the purpose of the work product privilege
is “to preserve a zone of privacy in which a lawyer can prepare and develop
legal theories and strategy ‘with an eye toward litigation,’ free from unnecessary
intrusion by his adversaries.” United States v. Adlman, 134 F.3d 1194, 1196 (2d
Cir. 1999) (quoting Hickman, 328 U.S. at 510‐11). This same confidentiality
applies to the work product of government. A lawyer to a government agency,
like a lawyer to any private litigant, must “assemble information, sift what he
considers to be the relevant from the irrelevant facts, prepare his legal theories
and plan his strategy.” Hickman, 329 U.S. at 511. Forcing agencies to disclose this
work product in response to FOIA requests would render it impossible for
agency staff to effectively perform their jobs. “[M]uch of what is now put down
in writing would remain unwritten,” id., at great cost to the efficiency and
effectiveness of government lawyers. The work product of government attorneys
15 is therefore entitled to the same protection as that of private lawyers. Sears, 421
U.S. at 154.
3. The “Working Law” Doctrine
Our analysis thus far suggests a straightforward inquiry in this case: Were
U.S. Attorney Durham’s memoranda attorney work product at the time he wrote
them? If so, did Holder’s public statements about them waive the privilege?
The District Court’s opinions below, however, took a different approach to
resolving the Exemption 5 question in this case, asking whether the DOJ
“expressly . . . adopt[ed] . . . or incorporate[d] . . . by reference” these
memoranda, and answering that it had. 138 F. Supp 3d at 472. The District
Court’s “express adoption” inquiry drew upon a line of cases originating with
the Supreme Court’s decision in Sears. Sears involved an FOIA suit by the
respondent corporation against the National Labor Relations Board (“NLRB”)
seeking access to certain intra‐agency memoranda. These memoranda, sent by
the agency’s general counsel to its various regional offices, purported to offer
“advice” or “instructions” to the regional offices on whether to allow certain
categories of complaints filed by private parties to proceed through the
16 administrative adjudication process.5 Id. at 138‐42. The agency argued that the
“deliberative process” privilege6 applied to these documents, thus shielding
them from disclosure under Exemption 5. Id. at 143. Partly agreeing and partly
disagreeing, the Supreme Court held that the memoranda directing the regional
offices to turn away certain categories of complaints were not protected by
Exemption 5, but that the memoranda directing the regional offices to allow
certain complaints to proceed were shielded by Exemption 5. The Court’s
reasoning was that the memoranda directing the regional offices to reject certain
categories of complaints effectively functioned as final adjudications of those
complaints. These memoranda, though pre‐decisional and deliberative in form,
were binding and precedential in substance. Recognizing that the deliberative
process privilege cannot apply to a document that in fact represents a final ruling
on the law, the Court held that “Exemption 5, properly construed, calls for
disclosure of all opinions and interpretations which embody the agency’s
5 Under the administrative scheme described in Sears, private parties could file complaints arising under the federal labor laws before the NLRB, but the complaint would only receive an administrative adjudication if the agency’s general counsel allowed the complaint to move forward, in which case the general counsel would “become[] an advocate before the Board in support of the complaint.” Id. at 138-39. 6 The opinion refers to this as the “executive privilege,” see id. at 149-50, but this Court has previously explained that the “deliberative process privilege . . . is encompassed within the executive privilege.” Am. Civil Liberties Union v. Nat’l Sec. Agency, 925 F.3d 576, 592 n.70 (2d Cir. 2019) (quoting Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 481 (2d Cir. 1999)). 17 effective law and policy.” Id. at 153 (internal quotation marks and citations
omitted). Construing Exemption 5 to shield such documents would eviscerate
FOIA’s purpose of avoiding “secret law.” See id. at 138.
As this Court recently explained in American Civil Liberties Union, 925
F.3d at 592‐98, the Supreme Court’s holding in Sears rests on a key insight: even
when an intra‐agency document purports to offer recommendations or advice,
an agency may nonetheless regard it in practice as embodying the agency’s
“working law” on an issue that binds the public. And even when a document is,
in fact, pre‐decisional and non‐binding at the time of its creation, it may over
time come to constitute the agency’s “working law” if the agency “expressly
adopts” the document’s reasoning as the agency’s official position, or if the
agency “incorporates by reference” the document into a final decision. See id. at
593 (“‘[W]orking law’ describes a category of post‐decisional material, and
‘express adoption’ and ‘incorporation by reference’ describe two methods by
which pre‐decisional material can become post‐decisional.”).7 The Supreme
7 Express adoption of a pre-decisional document into working law means that “a document first drafted as legal or policy advice has become an agency’s ‘effective law and policy.’” Id. at 595. Incorporation by reference of a pre-decisional document means that “an agency’s formal opinion or determination of law or policy expressly references and relies on that document and its reasoning as the basis for a decision.” Id. at 598.
18 Court held in Sears that in either of these cases, Exemption 5 no longer applies.
421 U.S. at 161. Using broad language, the Court wrote “that, if an agency
chooses expressly to adopt or incorporate by reference an intra‐agency
memorandum previously covered by Exemption 5 in what would otherwise be a
final opinion, that memorandum may be withheld only on the ground that it falls
within the coverage of some exemption other than Exemption 5.” Id.
This Court has subsequently applied this language from Sears in a variety
of “working law” cases, holding each time that Exemption 5 ceases to apply
when an intra‐agency document comes to embody “working law” that binds the
agency and the public. For example, in National Council of La Raza v.
Department of Justice, 411 F.3d 350 (2d Cir. 2005), we ordered the government to
disclose a memorandum of the Office of Legal Counsel (“OLC”) that concludes
that state and local officers could lawfully enforce civil provisions of federal
immigration law, finding that the Department of Justice had “incorporated” the
OLC’s advice as its own official position on the law. Id. at 352. Even though this
document would have been protected by the deliberative process privilege and
the attorney‐client privilege at the time of its creation, Exemption 5 no longer
applied. Id. at 359‐61. Likewise, in Brennan Center v. U.S. Department of Justice,
19 697 F.3d 184 (2d Cir. 2012), we directed the Department of Justice to disclose
another OLC memorandum advising USAID that it could constitutionally
enforce a “pledge requirement” against U.S.‐based organizations, finding again
that the record indicated that USAID had expressly adopted the OLC’s advice as
its final and binding interpretation of the relevant law. See id. at 202‐05.
In both of these cases, the dispositive finding was that the memoranda in
question, although originally drafted as pre‐decisional, attorney‐client advice,
had been “recycled and reissued as an agency’s ‘working law,’” Am. Civil
Liberties Union, 925 F.3d at 595 (discussing the concepts of “working law,”
“express adoption,” and “incorporation by reference”). This is because the
relevant agencies began treating the advice they had received from OLC as
binding, both on the agency and on the public. See id. at 594 (working law “binds
agency officials or members of the public,” “has operative effect — i.e., binding
rather than persuasive power,” and “announces what an agency’s law is, not
what the law might be”). In La Raza, the OLC’s opinion that state and local
police could lawfully enforce the federal civil immigration laws became binding
on the public because the Department of Justice allowed state and local officers
to begin enforcing these laws; and in Brennan Center, the OLC’s opinion that
20 USAID could constitutionally enforce the pledge requirement against U.S.
organizations became binding when USAID began enforcing this requirement. In
the terminology of Sears, 421 U.S. at 153, the OLC memoranda in these cases
came to embody the respective agencies’ “working law” or “effective law and
policy” because they were not only final decisions on legal issues, but also
decisions that were binding on the public.8
However, some language in Brennan Center was initially interpreted to
suggest that the “express adoption” exception to Exemption 5 might apply
beyond the “working law” context. See 697 F.3d 184, 199. Specifically, some
courts read Brennan Center to suggest that a privileged document could lose
Exemption 5 protection if the agency adopted or incorporated it into any non‐
privileged document, even if that document were not “working law.” This seems
to have been the view of the District Court in this case, and the view of the
plaintiffs on appeal. 138 F. Supp. 3d at 472‐75. But this Court’s recent decision in
8 We note a difference between the approach in American Civil Liberties Union and the approach of the D.C. Circuit in Rockwell International Corp. v. U.S. Department of Justice, 235 F.3d 598 (D.C. Cir. 2001). American Civil Liberties Union held that the distinguishing feature of an agency communication that has lost Exemption 5 protection under the Sears line of cases is that it is binding on the agency and the public. In Rockwell, the D.C. Circuit seems to take the approach that the distinguishing feature is rather that the agency communication is a “final opinion . . . made in the adjudication of cases” under 5 U.S.C. § 552(a)(2)(A). 235 F.3d at 602- 03. In the present case, however, it is unnecessary to discuss when and whether these approaches actually differ.
21 American Civil Liberties Union has now resolved the issue the other way,
presenting “working law” and “express adoption” as related, not independent,
concepts. See Am. Civil Liberties Union, 925 F.3d at 593 (“‘[W]orking law’
describes a category of post‐decisional material, and ‘express adoption’ and
‘incorporation by reference’ describe two methods by which pre‐decisional
material can become post‐decisional.”). We hold accordingly that an “express
adoption” inquiry is only relevant insofar as the previously‐privileged intra‐
agency document has become binding “working law.”
In the instant case, Durham’s recommendations to Holder on whether to
formally investigate and/or criminally prosecute specific instances of alleged CIA
wrongdoing — even if expressly adopted by Holder in his final decision — are
not binding on the public, and thus cannot constitute the “working law” of the
Department of Justice.9 Prosecutors “retain broad discretion to enforce the
Nation’s criminal laws,” United States v. Armstrong, 517 U.S. 456, 464 (1996)
(internal quotation marks omitted), but their determinations whether to
investigate or prosecute any particular defendant are not precedential and affect
9 We therefore find it unnecessary to rule definitively on whether the “working law” doctrine trumps the attorney work product privilege for the purposes of Exemption 5, and we reserve the question as we did in Wood v. F.B.I., 432 F.3d 78 (2d Cir. 2005).
22 no one other than that defendant. These decisions are not even “binding” on the
agency itself. Even after Holder announced publicly that he had accepted the
recommendations in Mr. Durham’s memoranda, he retained jurisdiction to
reverse course and bring charges at a later time.
For these reasons, the prosecutorial determinations made by Durham and
Holder were not, and could not have been, “working law.” While the agency’s
decision not to bring charges against any CIA personnel superficially resembles
the decisions in Sears by the NLRB’s counsel to dismiss private complaints
brought before the agency, there are at least two critical differences. First, once an
NLRB regional office followed the general counsel’s instruction to dismiss a
complaint, the general counsel could not reverse his earlier determination at will.
Second, the memoranda in Sears were precedential by their nature, while
prosecutorial decisions are not, because of the inherent discretion prosecutors
have to enforce the law. See also Sears, 421 U.S. at 156 n.22.10
10 It is true that in Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967 (7th Cir. 1977), on somewhat similar facts, the Seventh Circuit held that the Watergate Special Prosecution Force had “expressly adopted or incorporated” an internal prosecutorial memorandum setting forth reasons not to indict former President Nixon by referencing that memorandum in the Force’s final report. Id. at 970-71. A key difference between that case and the instant case, however, is that the Watergate Special Prosecutor was required “upon completion of his assignment [to] submit a final report to . . . Congress.” Id. at 971. This publication requirement, not present in the case at hand, transformed the Force’s report into a 5 U.S.C. § 552(a)(2)(A) “final opinion” and subjected it to the heightened disclosure requirements of § 552(a)(2). The court characterized its holding as “very narrow,” and explained that 23 Withholding the memoranda that the Times seeks in this case also does not
implicate the same concerns about “secret law” that we had in Brennan Center
and other cases. This Court and the Supreme Court have long recognized that
the policy underlying the working law doctrine is that an agency ought not be
permitted to “promulgate[] a body of secret law which it is actually applying in
its dealings with the public but which it is attempting to protect behind a label.”
Brennan Ctr., 697 F.3d at 200 (quoting Coastal States Gas Corp. v. U.S. Dep’t of
Energy, 617 F.2d 854, 869 (D.C. Cir. 1980)). Durham’s memoranda, however,
raise few, if any, concerns about secret law. Because of the inherently
discretionary and non‐precedential nature of prosecutorial determinations,
Durham’s recommendations in this case bear little or no relevance to any other
potential defendant in any other case. Unlike the documents in La Raza and
Brennan Center, therefore, no party other than the particular defendants under
investigation would have gained any insight into their own legal rights or
obligations by reading Durham’s memoranda. These memoranda set forth no
“although we hold on the facts of this case that the [Watergate Special Prosecution Force] Report is a final disposition for purposes of the FOIA, we come to this conclusion ‘(w)ithout deciding whether a public prosecutor makes “law” when he decides not to prosecute or whether memoranda explaining such decisions are “final opinions” . . . .’” Id. at 972 (quoting Sears, 421 U.S. at 156 n.22).
24 rule of law that another party could unwittingly violate, and neither could any
party accused of wrongdoing cite them in his or her defense. Our language about
“secret law” in other Exemption 5 contexts, therefore, says little about the
necessity of disclosure here.
Given our holding that the “working law” doctrine is inapplicable to this
situation, the only remaining question is whether the Durham memoranda
remain privileged attorney work product, or whether Holder’s public statements
waived the work product protection. We now proceed to examine the common
law work product waiver doctrines and apply them to Holder’s two public
statements about Durham’s investigation.11
11 It is worth noting that the Second Circuit has previously used a straightforward waiver-of- privilege analysis to resolve a FOIA Exemption 5 case, rather than wading into the “express adoption or incorporation by reference” waters. In another case also called New York Times v. U.S. Department of Justice, 756 F.3d 100 (2d Cir. 2014), the New York Times sued under FOIA for access to a memo setting out the government’s legal reasoning behind its conclusion that targeted killings of United States citizens by drone aircraft were lawful. DOJ claimed that this memo was covered by Exemption 5 because it contained attorney-client privileged legal advice. In an opinion by Judge Newman, the Court analyzed whether public statements by various agency officials disclosing parts of the legal reasoning within the memo were sufficient to waive the attorney-client privilege and concluded that they were. See also Shinnecock Indian Nation v. Kempthorne, 652 F. Supp. 2d 345 (E.D.N.Y. 2009) (employing a waiver analysis to determine whether the agency’s disclosure of a document in redacted form constituted a waiver of work product protection of the redacted portions for the purposes of FOIA Exemption 5).
25 B. Waiver of Attorney Work Product Privilege
The qualified privilege for attorney work product is designed to shield
“mental impressions, conclusions, opinions or theories concerning the litigation.”
Adlman, 134 F.3d at 1195 (2d Cir. 1998). The FOIA context is obviously more
broad than litigation or the contemplation of it.
Like the other civil discovery privileges,12 however, the protection afforded
by the work product privilege “is not absolute.” United States v. Nobles, 422 U.S.
225, 239 (1975). A party waives the work product protection by taking actions
inconsistent with this its purpose, such as disclosing work product to its
adversary, In re Steinhardt Partners, 9 F.3d 230, 235 (2d Cir. 1993), or by placing
privileged documents “at issue” in a litigation, John Doe Co. v. United States, 350
F.3d 299, 302 (2d Cir. 2003) (“A party . . . impliedly waives work product
protection if it places the substance of the documents for which the protection is
claimed at issue.”); see also Rockwell Intern. Corp. v. U.S. Dept. of Justice, 235
F.3d 598, 605‐06 (D.C. Cir. 2001) (noting that a party waives the work product
privilege by making “testimonial use” of the documents). These doctrines may
12 This Court has, on several previous occasions, discussed the waiver of the attorney-client privilege. See, e.g., Am. Civil Liberties Union v. Nat’l Sec. Agency, 925 F.3d 576, 590-91 (2d Cir. 2019); Brennan Ctr. v. U.S. Dep’t of Justice, 697 F.3d 184, 207 (2d Cir. 2012); In re County of Erie, 546 F.3d 222 (2d Cir. 2008); In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 2000).
26 apply in the Exemption 5 context much as they do in ordinary civil discovery.
Just as Exemption 5 transplants the work product privilege into the FOIA
context, 5 U.S.C. § 552(b)(5), so too does it import the judicially‐recognized
doctrines governing the waiver of the privilege. See F.T.C. v. Grolier Inc., 462
U.S. 19, 26 (1983) (“By its own terms, Exemption 5 requires reference to whether
discovery would normally be required during litigation with the agency.”)
(emphasis omitted).
It is not disputed here that Durham’s memoranda were attorney work
product at the time they were drafted, in part because Durham prepared them in
anticipation of possible criminal prosecutions. In their supplemental briefing,
however, plaintiffs‐appellees argue that Holder’s public statements about these
memoranda waived the privilege, thus subjecting them to disclosure under
FOIA.13
13 Defendants-appellants argue that plaintiffs-appellees have forfeited any reliance on a waiver argument by not raising it in their initial brief. We disagree. The issue of waiver is “properly before the court” on the instant facts, and we are “not limited to the particular legal theories advanced by the parties” in their initial briefs. Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). 27 1. Waiver Doctrines
a. Waiver by Disclosure
Plaintiffs‐appellees first invoke the doctrine that a litigant waives the work
product protection by voluntarily disclosing privileged material to its adversary.
Steinhardt Partners, 9 F.3d 230; see also SEC v. Gupta, 281 F.R.D. 169, 171
(S.D.N.Y 2012) (“Work product protection . . . may be waived if the work product
is voluntarily disclosed.”); In re Terrorist Attacks on Sept. 11, 2001, No. 03‐MDL‐
1570, 2013 WL 2641383, at *3 (S.D.N.Y. June 12, 2013) (work product protection is
waived upon disclosure to an adversary or disclosure to a non‐adversary that
“materially increases the likelihood that an adversary can gain access to that
information”); Merrill Lynch & Co., Inc. v. Allegheny Energy, Inc., 229 F.R.D.
441, 445 (S.D.N.Y. 2004) (“Generally speaking, the work product privilege should
not be deemed waived unless disclosure is inconsistent with maintaining secrecy
from possible adversaries.”) (internal quotation marks and alterations omitted);
In re Sealed Case, 676 F.2d 793, 817 (D.C. Cir. 1982) (“[A] party waives its work
product protection in civil litigation if it discloses the privileged material to
anyone without common interests in developing legal theories and analyses of
documents.”) (internal quotation marks omitted).
28 In the FOIA Exemption 5 context (where adversaries often do not exist),
this doctrine provides that public disclosure of specific details from an otherwise
privileged agency memorandum waives the work product protection with
respect to those facts. The D.C. Circuit, for example, has previously evaluated in
an Exemption 5 case whether selective quotation of privileged documents in a
non‐privileged document waived the work product protection with respect to
the privileged document. Rockwell Int’l Corp. v. U.S. Dep’t of Justice, 235 F.3d
598, 605 (D.C. Cir. 2001). Here, of course, we must evaluate the impact of verbal
statements describing the content of privileged memoranda, rather than actual
disclosure of the memoranda themselves. But we see no reason not to apply the
same inquiry. We have previously looked to “common sense” to “define the
limits of the work product doctrine,” Steinhardt Partners, 9 F.3d at 235 (2d Cir.
1993), and common sense suggests that verbal description of the contents of a
document, if sufficiently specific, is as “inconsistent with the maintenance of
secrecy,” Rockwell, 235 F.3d at 605 (quoting United States v. Am. Tel. & Tel. Co.,
642 F.2d 1285, 1299 (D.C. Cir. 1980)), of that document as would be disclosure of
the document itself.
29 b. “At‐Issue” Waiver
This Court has also held that a party waives the work product protection
over a document by placing that document “at issue” or by making “testimonial
use” of that document. Specifically, “in certain circumstances a party’s assertion
of factual claims can, out of considerations of fairness to the party’s adversary,
result in the involuntary forfeiture of privileges for matters pertinent to the
claims asserted.” John Doe Co. v. United States, 350 F.3d 299, 302 (2d Cir. 2003).
We have said that this kind of unfairness may arise when “a party[] advance[es]
a claim to a court or jury (or perhaps another type of decision maker) while
relying on its privilege to withhold from a litigation adversary materials that the
adversary might need to effectively contest or impeach the claim.” Id. at 303; see
also United States v. Nobles, 422 U.S. 225, 239‐40; In re Grand Jury Proceedings,
219 F.3d 174 (2d Cir. 2000) (“[I]mplied waiver may be found where a privilege
holder ‘asserts a claim that in fairness requires examination of protected
communications.’”) (quoting United States v. Bilzerian, 926 F.2d 1285, 1292)
(1991)).
The archetypal example of a situation where this doctrine applies is that of
United States v. Nobles, 422 U.S. 225 (1975). There, the Supreme Court identified
30 a “testimonial” use of work product by a criminal defendant that would be
sufficiently unfair to the prosecution so as to waive the privilege. At the
underlying trial, the prosecution had called two eye witnesses who identified the
defendant as the perpetrator of a bank robbery. Before trial, an investigator for
the defense had interviewed these two witnesses, elicited statements that seemed
to undermine their credibility, and memorialized these statements in a written
report. When the defense sought to call this investigator to testify at trial, the
government demanded that the investigator’s written report be produced. Id. at
227‐30. The defense objected, citing the work product privilege. Id. at 236‐40. But
the Supreme Court agreed with the government, holding that the defendant “can
no more advance the work product doctrine to sustain a unilateral testimonial
use of work product materials than he could elect to testify in his own behalf and
thereafter assert his Fifth Amendment privilege to resist cross‐examination on
matters reasonably related to those brought out in direct examination.” Id. at
239‐40; see also John Doe Co., 350 F.3d at 303 (discussing Nobles).
As the plaintiffs‐appellees note, we have sometimes “used broad language
in describing [this] doctrine, such as generalizing about the incompatibility of
using . . . assertions as a ‘sword’ while using privileges attaching to related
31 matter as a ‘shield.’” John Doe Co., 350 F.3d at 302. We have subsequently
clarified, however, that implied waiver of the work product privilege based on
the “fairness” or “at‐issue” doctrine is not nearly so broad. To find implied
waiver, we look for specific instances of unfairness that undermine the
adversarial process, and this is inherently a case‐by‐case determination. Id.
(citing In re Grand Jury, 219 F.3d at 193).
2. Analysis
We first evaluate whether Holder’s public statements about the
memoranda were specific enough to have effectuated disclosure of parts of the
memoranda and accompanying exhibits, thereby waiving the work product
privilege with respect to those parts. The defendants argue that there is “no
basis” to believe that the government waived the work product privilege, while
the plaintiffs point to several statements by Holder that they believe waive the
privilege.
Specifically, in his June 30, 2011 statement, Holder explained that “Mr.
Durham examined any possible CIA involvement with the interrogation of 101
detainees who were in United States custody subsequent to the terrorist attacks
of September 11, 2001, a number of whom were determined by Mr. Durham to
32 have never been in CIA custody” (emphasis supplied). Then, in his July 11, 2012
public statement, Holder said again that Durham “determined that a number of
the detainees were never in CIA custody.” We find these statements to be
sufficiently specific that they are tantamount to public disclosure of the parts of
the relevant memoranda that relate to this finding. Accordingly, we hold that the
government waived the privilege over the sections of the memoranda and
exhibits relating to the conclusion that a number of the detainees investigated
were not in CIA custody. Because Holder referenced this fact in both of his
public statements, our holding applies to all five of the memoranda and
associated exhibits.
However, the fact that the government waived the work product privilege
with respect to these parts of the documents does not automatically mean that
the government waived the privilege with respect to the whole documents. See
Shinnecock Indian Nation v. Kempthorne, 652 F. Supp. 2d 345, 363 (E.D.N.Y.
2009) (surveying case law and concluding that “the production of a document in
redacted form does not automatically waive the protection as to its whole or to
related documents”). Moreover, we have held in the “express adoption” context
that a limited citation to and quotation of a privileged report does not waive
33 Exemption 5 protection over the rest of the document. Tigue v. U.S. Dep’t of
Justice, 312 F.3d 70, 81 (2d Cir. 2002).
The Times points to three additional parts of Holder’s public statements,
arguing that these statements also waived the privilege over the parts of the
relevant memoranda relating to these statements: first, Holder’s discussion of the
legal standard Durham employed in deciding whether to prosecute (“Based on
the fully developed factual record concerning the two deaths, the Department
has declined prosecution because the admissible evidence would not be
sufficient to obtain and sustain a conviction beyond a reasonable doubt.”);
second, Holder’s statement that he directed Durham not to prosecute anyone
who acted in good faith (“I made clear at that time that the Department would
not prosecute anyone who acted in good faith and within the scope of the legal
guidance given by the Office of Legal Counsel regarding the interrogation of
detainees.”); and third, the statutory authority that guided Mr. Durham’s
analysis (“In reaching this determination, Mr. Durham considered all potentially
applicable substantive criminal statutes as well as the statutes of limitations and
jurisdictional provisions that govern prosecutions under those statutes.”).
34 We think that none of these statements divulges the content of the
memoranda with enough specificity to constitute waiver of the work product
privilege. The first statement is not a statement about the content of the report at
all, but rather an acknowledgement that DOJ, after considering the report,
concluded that the admissible evidence would not be sufficient to obtain a
conviction. Although we infer from the context of this statement that Durham
may have concluded as much in the report, we do not read Holder’s statement as
being functionally equivalent to disclosing parts of the memoranda. The second
statement plaintiffs identify is likewise not a statement about the contents of the
memoranda, but a statement about what Holder told Durham. The third
statement, although it does broadly outline how Durham approached his
investigation, is too vague and general to have effected waiver of the work
product privilege. A private litigant who described her attorney’s work product
to her adversary in such broad and nonspecific language could not be said to
have effectively disclosed that work product. We therefore hold that none of
these additional statements identified by plaintiffs waived the work product
privilege over any part of the memoranda.
35 We next consider whether Holder placed the contents of Durham’s
memoranda “at issue” through his public statements, thus impliedly waiving the
privilege. Plaintiffs‐appellees argue that Holder did so by citing Durham’s
investigation as part of a public relations offensive. In Plaintiffs’ view, Holder
relied on the memoranda to “mute criticisms about the decision not to
prosecute,” but then “stood on privilege to shield the actual analysis employed
by Mr. Durham, leaving the public unable to asses whether the Attorney
General’s assurances of thoroughness were warranted.”14
In our view, Holder’s references to Durham’s reports, although clearly
spoken with an intent to explain the Department’s decision not to prosecute, do
not constitute “testimonial use” of the reports and therefore do not waive the
work product privilege over the documents. The D.C. Circuit allowed that “[i]t is
conceivable that a case might arise in which testimonial use of work product
documents would in effect lead to a general waiver of the privilege” negating the
application of Exemption 5, Rockwell, 235 F.3d at 607, but we need not consider
that hypothesis here. First, while there is little precedent within this Circuit on
14 Plaintiffs-appellees also raise this argument to support the proposition that Holder “expressly adopted” Durham’s reports, but for the reasons explained above, we find this doctrine inapplicable here. 36 how the “testimonial use” waiver doctrine applies within the Exemption 5
context, two other circuit courts have held that an agency’s decision to cite
privileged documents in an effort to explain government action and get public
support does not necessarily waive any privilege over those documents. See
Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018, 1026 (7th Cir. 2012) (rejecting the
plaintiff’s argument that “the district court erred by allowing the government to
use the portions of the consultant’s opinions that it believes are helpful, while
hiding the analysis and the complete opinions from the public view”); Rockwell,
235 F.3d at 607 (the agency “made no testimonial use of the attachments . . . but
instead deployed them . . . in the ensuing struggle for public opinion”). In any
event, Plaintiffs’ argument treats as suspect (or as adversarial) the essential
function of any government to explain its position and secure public
understanding and support.
Moreover, we find independently that the fairness concerns of the type
and magnitude we identified in John Doe Co. are not present here. In John Doe
Co., we wrote that at‐issue waiver may occur when a party “advance[es] a claim .
. . while relying on its privilege to withhold from a[n] . . . adversary materials
that the adversary might need to effectively contest or impeach the claim.” 350
37 F.3d at 303. In this situation, we do not believe that Holder’s decisions would be
incontestable. Although the DOJ referenced Durham’s work in an effort to
explain the reasoning for its decisions not to prosecute, Holder never presented
the final decisions as anything other than an exercise of judgment by him and his
agency. In his June 2011 statement, for example, Holder explained that “Mr.
Durham has advised me of the results of his investigation,” but added that “I
have accepted his recommendation” (emphasis supplied). And in July 2012,
Holder credited Durham with conducting a thorough investigation, but then
explained that “the Department has declined prosecution” (emphasis supplied).
No one hearing these statements would think anything other than that Eric
Holder was explaining the propriety of his policy decisions. Accordingly, we
find that Holder’s use of Durham’s memoranda was not so unfair as to implicate
our concerns in John Doe Co.
CONCLUSION
For the foregoing reasons, the opinion of the District Court is affirmed in
part and reversed in part. The Department of Justice is directed to release the
portions of John Durham’s memoranda and associated exhibits that relate to the
conclusion that some of the detainees were not in CIA custody. The case is
38 remanded to the District Court to effectuate such disclosure, consistent with this
opinion.