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On Wednesday, SDNY Judge J. Paul Oetken ruled on the New York Times’ and DOJ’s cross-motions for summary judgment in a FOIA suit seeking documents related to federal prosecutor John Durham’s 2008 to 2012 investigation of the CIA’s detainee interrogation program.
Durham’s team of DOJ lawyers and FBI agents initially focused on the CIA’s destruction of detainee interrogation videotapes. This eventually led to a related inquiry into whether certain individuals had made false statements during the tape investigation. Later, former Attorney General Eric Holder expanded Durham’s mandate to include conducting a preliminary review into whether federal laws were violated in connection with the CIA’s interrogation of detainees. Upon Durham’s recommendation, the DOJ subsequently initiated a full criminal investigation into the deaths of two detainees in CIA custody.
Ultimately, the DOJ declined to bring criminal charges related to any aspect of Durham’s investigation. Attorney General Holder announced the conclusion of Durham’s investigation in August 2012.
Last year, the New York Times (and Times reporter Charlie Savage) brought a FOIA suit against DOJ seeking documents produced during Durham’s investigation. DOJ claimed that its withholding of these documents was justified by FOIA’s Exemption 5, which protects from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Courts interpret this provision as exempting documents that are normally privileged in the context of civil discovery.
In FOIA litigation, the government typically invokes Exemption 5 to shield documents that it contends are protected by attorney-client privilege, attorney work product privilege, and/or deliberative process privilege (which applies to the government’s pre-decisional and deliberative communications). However, a document that would otherwise be covered under Exemption 5 must be disclosed if the government has ‘expressly adopted’ the document’s analysis in support of an agency decision or policy.
Judge Oetken’s summary judgment order examines the five categories of documents at issue in the Times’ FOIA suit, and determines whether Exemption 5 is applicable to each category:
1) The FD-302 Reports: These reports documented interviews conducted by FBI agents on Durham’s investigative team. The Times argued that these reports are not attorney work product because they contain substantially verbatim accounts of witnesses’ factual statements, and do not reflect an attorney’s thought processes or legal judgments. Judge Oetken disagreed, reasoning that the “mere selection of whom to interview” provides significant insight into Durham’s strategy, and that the questions asked by his team “almost certainly” reveal his judgments concerning the investigation. Accordingly, Judge Oetken determined that the FD-302 reports are attorney work product covered by Exemption 5.
2) The Tape Destruction Report: This 1,037 page report described the results of Durham’s investigation into the CIA’s destruction of detainee interrogation video tapes, and apparently recommended against filing any criminal charges in connection with that investigation. The DOJ Office of Public Affairs announced Durham’s conclusions in a three sentence-long press release in November 2010. Judge Oetken determined that this brief statement did not constitute express adoption, and that the Tape Destruction Report was still covered by Exemption 5.
3) The Obstruction Memo: This memo to the Deputy Attorney General summarized Durham’s findings and recommendations concerning possible false statements made by certain individuals involved in the tape destruction investigation. Since the memo’s conclusions and reasoning were never released publicly, the Obstruction Memo also failed to qualify for the ‘express adoption’ exception for otherwise privileged materials.
4) The Recommendation Reports: Durham’s preliminary review of the legality of CIA’s detainee interrogations resulted in a final recommendation, supported by two supplemental reports. The DOJ published a statement in June 2011 announcing Attorney General Holder’s acceptance of Durham’s recommendation to conduct a full criminal investigation into the deaths of two detainees in CIA custody. Judge Oetken determined that this four paragraph statement “manifested DOJ’s [express] adoption” of the recommendation and supplemental reports, and that those documents were accordingly subject to disclosure under FOIA. (Separately, he denied the Times’ request for two additional interim reports concerning the detainee interrogation investigation because they were superseded by Durham’s final recommendation.)
5) The Declination Memoranda: Durham summarized his investigation into the detainees’ deaths in two memoranda, which recommended that DOJ decline to pursue criminal prosecution. In August 2012, DOJ published a statement announcing Attorney General Holder’s acceptance of Durham’s recommendations. That statement also discussed the investigation’s methodology, and its ultimate conclusion that DOJ lacked sufficient evidence to support a conviction in connection with the detainee deaths. Although the statement never explicitly referenced the Declination Memoranda, Judge Oetken determined that the memoranda had still been expressly adopted because DOJ “relied on Durham’s reasoning in explaining its decision not to prosecute.”
In closing, Judge Oetken conceded that a “robust” express adoption doctrine may encourage government officials to reveal as little as possible about the reasoning behind their decisions, which would tend to undermine the broader goals of FOIA. These concerns seem particularly relevant here, since the documents that received Exemption 5 protection were the ones the DOJ publicly said the least about. Nonetheless, Judge Oetken determined that his application of the express adoption doctrine in this case was required under Second Circuit precedent.
With the Times’ agreement, DOJ had previously reserved the option to litigate other FOIA exemptions in the event it received an unfavorable ruling on Exemption 5, including those related to classified information, personal privacy interests, and law enforcement records. The summary judgment order directs the parties to submit a proposed briefing schedule for further motions by the end of the month.