United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 31, 2005 Decided December 27, 2005
No. 04-5444
JUDICIAL WATCH, INC.,
APPELLEE
v.
DEPARTMENT OF JUSTICE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cv00348)
Steve Frank, Attorney, U.S. Department of Justice, argued
the cause for appellant. With him on the briefs were Peter D.
Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S.
Attorney, and Leonard Schaitman, Attorney.
James F. Peterson argued the cause for appellee. With him
on the brief was Paul J. Orfanedes.
Before: ROGERS, Circuit Judge, and EDWARDS* and
WILLIAMS, Senior Circuit Judges.
*
Senior Circuit Judge Edwards was in regular active service
at the time of oral argument.
2
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Appellee, Judicial
Watch, Inc. (“Judicial Watch”), brought this action under the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2000 &
Supp. II 2002), seeking, inter alia, disclosure of documents
relating to the United States’ participation as amicus curiae in
Boim v. Quranic Literacy Institute, 291 F.3d 1000 (7th Cir.
2002). As the case proceeded before the District Court, the
subject of the parties’ dispute finally focused on nine emails,
totaling 13 pages, withheld by the Government pursuant to the
deliberative process privilege and the attorney work-product
doctrine under Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5).
It is uncontested that all nine emails involve
communications between Department of Justice (“DOJ”)
officials, containing discussions about whether DOJ should file
an amicus brief in the Boim litigation and what the Department’s
position should be if such a brief were filed. See Supplemental
Decl. Pustay ¶ 4, reprinted in Joint Appendix (“J.A.”) 118-19.
“Each of these e-mails was written by and/or to attorneys in
relation to the Boim case or other litigation involving designated
foreign terrorist organizations.” Decl. Pustay ¶ 22, reprinted in
J.A. 40. On March 31, 2004, following an in camera review of
the disputed documents, the District Court held that the emails
“were properly withheld under Exemption 5, as the documents
are protected by both the deliberative process privilege and the
attorney work-product doctrine.” Judicial Watch, Inc. v. DOJ,
CA No. 02-348, Order at 2 (Mar. 31, 2004).
Although the District Court concluded that the emails were
properly withheld under Exemption 5, it agreed with Judicial
Watch that, under 5 U.S.C. § 552(b), the Government was
obligated “to disclose any ‘reasonably segregable portion’ of the
documents.” Id. at 2. Finding that the Government “[had] not
made a good faith effort to provide [Judicial Watch] with a
3
‘reasonably segregable portion’ of each document,” the District
Court ordered DOJ to “file with [Judicial Watch] and the Court
appropriately redacted versions of each document by no later
than April 12, 2004.” Id. at 3. Pursuant to this decision, the
District Court granted in part and denied in part the parties’
respective motions for summary judgment.
On April 5, 2004, the Government moved for
reconsideration of the March 31 Order, or, in the alternative, for
a stay pending appeal. The Government contended that, given
the trial court’s finding that the emails were properly withheld
under the work-product doctrine, segregability was not required.
In the Government’s view, “the work product doctrine protects
all materials prepared in reasonable anticipation of litigation,
whether factual or deliberative in nature.” Br. for Appellant at
6. On April 8, 2004, the District Court issued an Order staying
the court’s March 31 Order pending resolution of the
Government’s motion for reconsideration.
On September 2, 2004, the District Court denied the
Government’s motion for reconsideration, holding that “[t]he
plain language of FOIA states that ‘[a]ny reasonably segregable
portion of the record shall be provided to any person requesting
such record after deletion of the portions which are exempt.’”
Judicial Watch, Inc. v. DOJ, 337 F. Supp. 2d 183, 185 (D.D.C.
2004) (quoting 5 U.S.C. § 552(b)) (final alteration in original).
The District Court reinstated its March 31 Order,
“emphasiz[ing] that it is not dictating what, or even how much,
information must be released.” Id. at 187. Rather, the trial court
rejected DOJ’s argument “that defendants need not even attempt
to separate factual material from documents protected by the
work-product privilege.” Id. The District Court granted the
Government’s motion for a stay pending appeal, and the
Government filed a timely notice of appeal on October 27, 2004.
________________________________
4
As a preliminary matter, Judicial Watch argues that,
because the District Court’s Orders of March 31 and September
2 “do not require the government to disclose the records in
dispute in this case until they first undertake certain actions, the
outcome of which is not known, the orders are not final and,
therefore, subject to appeal.” Br. for Appellee at 1. Because we
find that the District Court’s Orders are final and appealable, we
reject Judicial Watch’s suggestion that we lack jurisdiction to
consider this matter.
The District Court’s March 31 Order held that the
Government “[had] not made a good faith effort to provide
[Judicial Watch] with a ‘reasonably segregable portion’ of each
document,” and ordered the Government to “file with [Judicial
Watch] and the Court appropriately redacted versions of each
document by no later than April 12, 2004.” Order (Mar. 31,
2004) at 3 (emphasis added). In other words, the March 31
Order compelled the Government to disclose particular
documents. The District Court’s subsequent September 2 Order,
denying the Government’s motion for reconsideration, did not
in any way negate the March 31 Order, or its requirement that
DOJ release redacted versions of the nine emails. The District
Court knew that the Government’s principal argument was that
there was nothing to release, because every document, in its
entirety, was “work product” and thus exempt from disclosure.
The District Court nonetheless reaffirmed its March 31 Order,
and then granted a stay pending appeal.
On this record, there is no doubt that the Government’s
appeal is not premature. “In a[] FOIA case a ‘final decision’ is
an order by the District Court requiring release of documents by
the Government to the plaintiff . . . .” Green v. Dep’t of
Commerce, 618 F.2d 836, 841 (D.C. Cir. 1980). That is
precisely the situation here. The trial court unequivocally
rejected the Government’s legal position regarding the
substantive protection afforded by the attorney work-product
5
doctrine under Exemption 5 of FOIA, and ordered the
Government to disclose materials for which it claimed
exemption. In these circumstances, the Orders of the District
Court are final and appealable. “To hold otherwise would be to
force the government to let the cat out of the bag, without any
effective way of recapturing it if the district court’s directive
was ultimately found to be erroneous.” Irons v. FBI, 811 F.2d
681, 683 (1st Cir. 1987).
_________________________________
On the merits, our review of the grant of summary judgment
is de novo, applying the same standards as the District Court.
See Schrecker v. DOJ, 349 F.3d 657, 661-62 (D.C. Cir. 2003);
Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
Exemption 5, 5 U.S.C. § 552(b)(5), states that FOIA “does
not apply to matters that are . . . 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.”
FOIA’s “reasonably segregable” provision, under 5 U.S.C. §
552(b), states:
Any reasonably segregable portion of a record shall be
provided to any person requesting such record after
deletion of the portions which are exempt under this
subsection. The amount of information deleted shall be
indicated on the released portion of the record, unless
including that indication would harm an interest
protected by the exemption in this subsection under
which the deletion is made. If technically feasible, the
amount of the information deleted shall be indicated at
the place in the record where such deletion is made.
The dispute in this case requires us to explain how these two
provisions work in conjunction.
6
FOIA Exemption 5 incorporates the work-product doctrine
and protects against the disclosure of attorney work product.
The work-product doctrine shields materials “prepared in
anticipation of litigation or for trial by or for another party or by
or for that other party’s representative (including the other
party’s attorney, consultant, surety, indemnitor, insurer, or
agent).” FED. R. CIV. P. 26(b)(3); Tax Analysts v. IRS, 117 F.3d
607, 620 (D.C. Cir. 1997). And, as the Supreme Court has made
clear, the doctrine should be interpreted broadly and held largely
inviolate:
Historically, a lawyer is an officer of the court and is
bound to work for the advancement of justice while
faithfully protecting the rightful interests of his clients. In
performing his various duties, however, it is essential that
a lawyer work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel.
Proper preparation of a client’s case demands that he
assemble information, sift what he considers to be the
relevant from the irrelevant facts, prepare his legal theories
and plan his strategy without undue and needless
interference. That is the historical and the necessary way in
which lawyers act within the framework of our system of
jurisprudence to promote justice and to protect their clients’
interests. This work is reflected, of course, in interviews,
statements, memoranda, correspondence, briefs, mental
impressions, personal beliefs, and countless other tangible
and intangible ways – aptly though roughly termed by the
Circuit Court of Appeals in this case as the “work product
of the lawyer.” Were such materials open to opposing
counsel on mere demand, much of what is now put down in
writing would remain unwritten. An attorney’s thoughts,
heretofore inviolate, would not be his own. Inefficiency,
unfairness and sharp practices would inevitably develop in
the giving of legal advice and in the preparation of cases for
trial. The effect on the legal profession would be
7
demoralizing. And the interests of the clients and the cause
of justice would be poorly served.
Hickman v. Taylor, 329 U.S. 495, 510-11 (1947).
After reviewing the disputed documents in camera, the trial
judge found that all nine emails were prepared in anticipation of
litigation, protected by the attorney work-product doctrine, and
thus properly exempt from disclosure under FOIA Exemption 5,
5 U.S.C. § 552(b)(5). Having reviewed these documents in
camera, we agree and affirm the District Court’s judgment that
the documents are attorney work product. We also note that the
District Court never suggested that any of the documents were
only partially work product. Our review of the documents
confirms this. Each of the nine documents, in its entirety, is
work product. There are no non-work product parts of the
emails. In other words, there are no segregable parts. In light
of these findings, we reverse the judgment of the District Court
compelling the Government to provide Judicial Watch with
reasonably segregable portions of each document.
The District Court ruled that the segregability language of
§ 552(b) requires DOJ to disclose “any ‘reasonably segregable
portion’ of documents” withheld under the attorney work-
product doctrine. See Order (Mar. 31, 2004) at 2. DOJ responds
that FOIA’s segregability requirement only provides that an
agency must disclose “[a]ny reasonably segregable portion of a
record . . . to any person requesting such record after deletion of
the portions which are exempt under this subsection.” See Br.
for Appellant at 9 (citing 5 U.S.C. § 552(b)). Thus, according
to the Government, where a document is withheld pursuant to
the work-product doctrine, “there simply are no ‘reasonably
segregable’ portions . . . to release ‘after deletion of the portions
which are exempt.’” Id. The Government’s view is on the
mark.
8
Judicial Watch counters that “[i]t is quite possible that the
documents contain specific facts that are segregable because
they are of a nature that does not implicate the work-product
doctrine.” Br. for Appellee at 8-9. Judicial Watch further
argues that the District Court must have assumed as much,
having found the emails to be work product and yet ordering the
Government to make a good faith effort to provide Judicial
Watch with reasonably segregable potions of each document.
There is no doubt that the District Court thought the “wide-
reaching protection for attorney work-product runs headlong
into FOIA’s broad disclosure and segregability requirements,”
337 F. Supp. 2d at 186, and that “the law in this Circuit on the
interaction between FOIA’s segregability requirement and the
attorney work-product protection is unclear,” id. Facing this
perceived confusion in the case law, the District Court, relying
on Army Times Publishing Co. v. Department of Air Force, 998
F.2d 1067 (D.C. Cir. 1993), concluded that “[a] distinction can
be drawn between material that is deliberative in nature and that
which is merely factual” in determining what material must be
disclosed under Exemption 5. 337 F. Supp. 2d at 186.
However, this confuses the deliberative process privilege, which
was at issue in Army Times Publishing, and the attorney work-
product doctrine, which is at issue here.
The circuit’s case law is clear that “[t]he work-product
doctrine simply does not distinguish between factual and
deliberative material.” Martin v. Office of Special Counsel, 819
F.2d 1181, 1187 (D.C. Cir. 1987). In Tax Analysts, we
explained that “[a]ny part of [a document] prepared in
anticipation of litigation, not just the portions concerning
opinions, legal theories, and the like, is protected by the work
product doctrine and falls under exemption 5.” 117 F.3d at 620.
In other words, factual material is itself privileged when it
appears within documents that are attorney work product. If a
9
document is fully protected as work product, then segregability
is not required.
Judicial Watch, echoing a view expressed by the District
Court, see Order (Mar. 31, 2004) at 3, argues that it is well
settled that “[t]he ‘segregability’ requirement applies to all . . .
documents and all exemptions in the FOIA.” Schiller v. NLRB,
964 F.2d 1205, 1209 (D.C. Cir. 1992) (internal citations and
quotation marks omitted). When taken out of context, this
language from Schiller does indeed suggest that a document that
is clearly covered by the work-product doctrine may be
segregable. But that is not what Schiller says, nor is it consistent
with the law of the circuit. There were five documents at issue
in Schiller, at least three of which contained attachments. The
court found that one of the documents was not attorney work
product, but held that the remaining documents fell “within the
attorney work-product privilege and, therefore, within
exemption 5.” Id. at 1208. The court then remanded the case
for the District Court “to enforce FOIA’s requirement that
agencies disclose reasonably segregable portions of withheld
documents.” Id. at 1210. The decision can thus be read to
suggest that the court remanded for a determination as to
whether any portions of the attorney work-product documents,
say, possibly the attachments, included nonprivileged materials.
Or the court may have inadvertently referred to “documents”
when it intended only to remand for a segregability analysis for
the one document that was not attorney work product. The
opinion is simply unclear on this point.
What is clear about Schiller is that it does not purport to
undercut the court’s decision in Martin, and the holding there
that “the work-product doctrine simply does not distinguish
between factual and deliberative material.” Martin, 819 F.2d at
1187. Indeed, Martin is not even cited in Schiller. Nor is there
any doubt about the continuing force of the holding in Martin
after the decision in Schiller. Tax Analysts, which was decided
10
after Schiller, reaffirms the principles set forth in Martin and
says nothing to suggest that Schiller established a new line of
precedent with respect to the application of the attorney work-
product doctrine under Exemption 5.
As indicated above, the District Court’s principal error was
in conflating the deliberative process privilege and the attorney
work-product doctrine. It is clear that the privilege and the
doctrine are not coterminous in their sweep. See Martin, 819
F.2d at 1185-86. Factual material is not protected under the
deliberative process privilege unless it is “inextricably
intertwined” with the deliberative material, see In re Sealed
Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (per curiam), whereas
no such showing is required under the attorney work-product
doctrine, see Martin, 819 F.2d at 1184-87. “[T]he deliberative
process privilege, not the work-product privilege, is the source
of the fact/deliberative process distinction, and . . . factual
elements can ‘seldom’ be segregated from attorney work
product.” Id. at 1186 (quoting Mervin v. FTC, 591 F.2d 821,
827 (D.C. Cir. 1978) (per curiam)). As the Government notes,
the District Court’s “blurring of the two privileges led it to hold
in its September 2 order that ‘defendants do have a duty to
release segregable information – that is, information that is not
inextricably intertwined with protected information.’” Br. for
Appellant at 19 (quoting 337 F. Supp. 2d at 187).
____________________________________
In conclusion, we hold that, because the emails at issue in
this case are attorney work product, the entire contents of these
documents – i.e., facts, law, opinions, and analysis – are exempt
from disclosure under FOIA. We therefore reverse the judgment
of the District Court.
So ordered.