United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 14, 2016 Decided July 19, 2016
Reissued December 20, 2016
No. 15-5051
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE
FOR UNITED STATES ATTORNEYS AND UNITED STATES
DEPARTMENT OF JUSTICE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00269)
Yaakov M. Roth argued the cause for appellant. With
him on the briefs were Kerri L. Ruttenberg and Julia Fong
Sheketoff.
Jason W. Burge, Alysson L. Mills, and Jesse C. Stewart
were on the brief for amici curiae Sixty-three law professors
in support of appellant.
John D. Cline was on the brief for amici curiae American
Civil Liberties Union, et al. in support of appellant.
1
Timothy P. O'Toole and Addy Schmitt were on the brief
for amici curiae The Constitution Project and The Innocence
Project in support of appellant.
Lewis Yelin argued the cause for appellees. With him on
the brief were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Vincent H. Cohen, Jr., Acting U.S.
Attorney, and Leonard Schaitman, Attorney.
Before: SRINIVASAN, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
Concurring opinion filed by Senior Circuit Judge
SENTELLE, with whom Senior Circuit Judge EDWARDS joins.
SRINIVASAN, Circuit Judge: The National Association of
Criminal Defense Lawyers submitted a request under the
Freedom of Information Act to obtain an internal Department
of Justice publication known as the Federal Criminal
Discovery Blue Book. The Blue Book is a manual created by
the Department to guide federal prosecutors in the practice of
discovery in criminal prosecutions. It contains information
and advice for prosecutors about conducting discovery in their
cases, including guidance about the government’s various
obligations to provide discovery to defendants.
The Department refused to disclose the Blue Book,
invoking the Freedom of Information Act’s Exemption 5,
which exempts from disclosure certain agency records that
would be privileged from discovery in a lawsuit with the
agency. The Department maintained that the Blue Book fell
within the attorney work-product privilege, and therefore
Exemption 5, because it was prepared by (and for) attorneys
2
in anticipation of litigation. The district court agreed that the
Blue Book is privileged attorney work product and thus is
exempt from disclosure. We likewise conclude that the Blue
Book consists of exempt attorney work product, but we
remand to the district court for an assessment of whether the
Blue Book also contains non-exempt policy statements
amenable to reasonable segregation from the privileged work
product.
I.
A.
The Freedom of Information Act (FOIA) provides that
government agencies must make agency records available to
citizens upon request, subject to nine enumerated exemptions.
5 U.S.C. § 552. “Congress intended FOIA to permit access to
official information long shielded unnecessarily from public
view.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011)
(internal citations and quotation marks omitted). The
statutory exemptions, accordingly, “are explicitly made
exclusive and must be narrowly construed.” Id. (internal
citations and quotation marks omitted).
Under Exemption 5, agencies may withhold “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.” 5 U.S.C. § 552(b)(5). Exemption
5 covers records that would be “normally privileged in the
civil discovery context.” NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 149 (1975). The exemption allows the government
to withhold records from FOIA disclosure under at least three
privileges: the deliberative-process privilege, the attorney-
client privilege, and the attorney work-product privilege.
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854,
3
862 (D.C. Cir. 1980). This case solely involves the last of
those privileges, the attorney work-product privilege.
B.
On December 20, 2012, the National Association of
Criminal Defense Lawyers (NACDL) sent a FOIA request to
the Department of Justice (DOJ) seeking disclosure of the
Blue Book. DOJ processed the request under the direction of
Susan Gerson, Assistant Director in the FOIA/Privacy Act
Staff of the Executive Office for U.S. Attorneys. After
reviewing the Blue Book and consulting with DOJ staff
familiar with the Book’s inception and drafting, Gerson
determined that it should be withheld in full pursuant to FOIA
Exemptions 5 and 7(E). (The latter exemption, which we
have no occasion to reach, exempts certain types of “records
or information compiled for law enforcement purposes.” 5
U.S.C. § 552(b)(7)(E).) On February 28, 2013, Gerson sent
NACDL a form letter invoking both exemptions and denying
its request.
After unsuccessfully appealing the denial, NACDL
brought this FOIA suit in the district court seeking to compel
DOJ to release the Blue Book. The parties filed cross-
motions for summary judgment, and DOJ again invoked
Exemptions 5 and 7(E) in support of its decision to withhold
the Blue Book in full. Because the parties disagreed about
how to characterize the Blue Book’s contents, the district
court reviewed the Book in camera before rendering its
decision on the merits of DOJ’s decision to withhold.
Following its in camera review of the Blue Book, the
district court granted DOJ’s motion for summary judgment.
Nat’l Ass’n of Criminal Def. Lawyers v. Exec. Office for U.S.
Attorneys, 75 F. Supp. 3d 552 (D.D.C. 2014). The court
4
found that DOJ was not required to disclose any portion of the
Blue Book, holding that the Book in its entirety is protected as
attorney work product. Id. at 557, 561. Because the court
found that the Blue Book could be withheld in full under
Exemption 5, it did not address the applicability of Exemption
7(E). Id. at 556.
II.
NACDL appeals, arguing that the claimed FOIA
exemptions are inapplicable and the Blue Book therefore
should be disclosed in full. We review the district court’s
decision de novo. See Judicial Watch, Inc. v. Dep’t of Justice,
432 F.3d 366, 369 (D.C. Cir. 2005). In doing so, we must
“ascertain whether the agency has sustained its burden of
demonstrating that the documents requested are . . . exempt
from disclosure under the FOIA.” Assassination Archives &
Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003)
(quoting Summers v. Dep’t of Justice, 140 F.3d 1077, 1080
(D.C. Cir. 1998)) (quotation marks omitted). When making
that determination, we rely centrally on the agency’s
descriptions of the content of the relevant documents as set
forth in its Vaughn index and accompanying affidavits. See
Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d
242, 251 (D.C. Cir. 1977). We conclude that the Blue Book
consists of attorney work product which is exempt from
disclosure under FOIA’s Exemption 5.
A.
Courts have long recognized that materials prepared by
one’s attorney in anticipation of litigation are generally
privileged from discovery by one’s adversary. See Hickman
v. Taylor, 329 U.S. 495, 510-12 (1947); In re Sealed Case,
146 F.3d 881, 884 (D.C. Cir. 1998). The attorney work-
5
product privilege applies in both civil and criminal cases. See
United States v. Nobles, 422 U.S. 225, 236-38 (1975); Fed. R.
Civ. P. 26(b)(3); Fed. R. Crim. P. 16(a)(2), 16(b)(2)(A).
The privilege aims primarily to protect “the integrity of
the adversary trial process itself.” Jordan v. Dep’t of Justice,
591 F.2d 753, 775 (D.C. Cir. 1978) (en banc). It does so by
“provid[ing] a working attorney with a ‘zone of privacy’
within which to think, plan, weigh facts and evidence,
candidly evaluate a client’s case, and prepare legal theories.”
Coastal States, 617 F.2d at 864. Without the privilege, “much
of what is now put down in writing would remain unwritten”
because “[a]n attorney’s thoughts, heretofore inviolate, would
not be his own.” Hickman, 329 U.S. at 511. Protecting
attorney work product from disclosure prevents attorneys
from litigating “on wits borrowed from the adversary.” Id. at
516 (Jackson, J., concurring).
“Congress had the attorney’s work-product privilege
specifically in mind when it adopted Exemption 5” to the
FOIA. Sears, 421 U.S. at 154. Not every document created
by a government lawyer, however, qualifies for the privilege
(and thus, the exemption). “[I]f an agency were entitled to
withhold any document prepared by any person in the
Government with a law degree simply because litigation
might someday occur, the policies of the FOIA would be
largely defeated.” Coastal States, 617 F.2d at 865. To avoid
that result, we have long required a case-specific
determination that a particular document in fact was prepared
in anticipation of litigation before applying the privilege to
government records. See, e.g., Senate of Puerto Rico v. U.S.
Dep’t of Justice, 823 F.2d 574, 586-87 (D.C. Cir. 1987).
In ascertaining whether a document was prepared in
anticipation of litigation, we have applied a “‘because of’ test,
6
asking whether, in light of the nature of the document and the
factual situation in the particular case, the document can fairly
be said to have been prepared or obtained because of the
prospect of litigation.” United States v. Deloitte LLP, 610
F.3d 129, 137 (D.C. Cir. 2010) (quoting Sealed Case, 146
F.3d at 884). For that standard to be met, the attorney who
created the document must have “had a subjective belief that
litigation was a real possibility,” and that subjective belief
must have been “objectively reasonable.” Sealed Case, 146
F.3d at 884.
B.
We find those standards satisfied with regard to the Blue
Book. DOJ explains that “[t]he Blue Book was designed to
provide advice regarding the law and practice of federal
prosecutors’ discovery disclosure obligations and to serve as a
litigation manual to be used by all DOJ prosecutors and
paralegals” in their cases. Goldsmith First Decl. ¶ 5 (J.A. 93).
As a result, DOJ says, the Blue Book was “created in
anticipation of reasonably foreseeable litigation,” namely,
federal criminal prosecutions. Gerson Decl. ¶ 17 (J.A. 84);
see id. ¶ 20 (J.A. 85). We agree.
The Blue Book “describ[es] the nature and scope of
[federal prosecutors’] discovery obligations under applicable
constitutional provisions, caselaw, and the Federal Rules of
Criminal Procedure.” Gerson Decl. ¶ 20 (J.A. 85). It consists
of “nine chapters, written by DOJ prosecutors with expertise
in a wide range of discovery-related topics,” addressing
subjects including: Federal Rule of Criminal Procedure 16,
regarding discovery; the government’s obligations to disclose
exculpatory information under Brady v. Maryland, 373 U.S.
83 (1963) and Giglio v. United States, 405 U.S. 150 (1972);
disclosure duties arising from the Jencks Act, 18 U.S.C.
7
§ 3500; items protected from disclosure; and the use of
protective orders and ex parte and in camera submissions in
discovery. Goldsmith First Decl. ¶ 5 (J.A. 93).
According to DOJ, the Blue Book is not a “neutral
analysis of the law” but rather “contain[s] confidential legal
analysis and strategies to support the Government’s
investigations and prosecutions.” Gerson Decl. ¶ 21 (J.A.
86). In contrast with publicly-available documents such as
the United States Attorneys’ Manual, which set out statements
of agency policy, the Blue Book is an internal manual
containing litigation strategies. Goldsmith Second Decl. ¶ 7
(J.A. 103). It gives “practical ‘how-to’ advice,” Goldsmith
First Decl. ¶ 5 (J.A. 94), to federal prosecutors about “how to
handle different scenarios and problems,” Gerson Decl. ¶ 20
(J.A. 85). It discusses “the types of challenges [prosecutors]
may encounter in the course of prosecutions and potential
responses and approaches.” Goldsmith Second Decl. ¶ 8 (J.A.
103); accord Goldsmith First Decl. ¶ 14 (J.A. 99). The Book
“contemplates facts that may arise in judicial proceedings”
and evaluates “how a court would likely consider those facts.”
Goldsmith First Decl. ¶ 6 (J.A. 94).
DOJ thus argues that disclosing the Blue Book would
“essentially provide a road map to the strategies federal
prosecutors employ in criminal cases.” Id. It contends that
disclosure would afford anyone who wanted to read the Blue
Book (including opposing counsel) “unprecedented insight
into the thought processes of federal prosecutors.” Id. ¶ 12
(J.A. 98). Disclosure thus would “undermine the criminal
trial process by revealing the internal legal decision-making,
strategies, procedures, and opinions critical to the
Department’s handling of federal prosecutions.” Id. ¶ 13
(J.A. 98). In addition, it would “severely hamper the
adversarial process[,] as DOJ attorneys would no longer feel
8
free to memorialize critical thoughts on litigation strategies
for fear that the information might be disclosed to their
adversaries to the detriment [of] the government’s current and
future litigating positions.” Id.
Taking into account the nature, content, and function of
the Blue Book as described in DOJ’s affidavits, we believe it
“can fairly be said to have been prepared . . . because of the
prospect of litigation.” Deloitte, 610 F.3d at 137 (quoting
Sealed Case, 146 F.3d at 884). Our in camera review of the
Blue Book confirms that the affidavits accurately describe the
Book and its contents. The Book therefore consists of
protected attorney work product.
C.
NACDL does not dispute that the Blue Book was
prepared for use in litigation. It claims that the Blue Book
nonetheless falls outside the work-product privilege for three
reasons: (i) the Blue Book was not prepared in anticipation of
litigating a specific claim or case; (ii) the Blue Book
principally serves a non-adversarial function; and (iii) the
Blue Book’s content resembles that of a neutral treatise. We
find each of those arguments unpersuasive.
1.
NACDL’s principal contention is that the Blue Book
cannot qualify for the work-product privilege because, even if
it was created in contemplation of litigation generally, it was
not prepared in anticipation of litigating a specific claim or
case. NACDL reads our decisions to establish a specific-
claim requirement for government documents to qualify for
work-product protection, at least in the context of
9
government-initiated litigation such as criminal prosecutions.
NACDL misunderstands our decisions.
As an initial matter, we have long held that there is no
general, overarching requirement that a governmental
document can fall within the work-product privilege only if
prepared in anticipation of litigating a specific claim. See
Sealed Case, 146 F.3d at 885; Schiller v. NLRB, 964 F.2d
1205, 1208 (D.C. Cir. 1992); Delaney, Migdail & Young,
Chartered v. IRS, 826 F.2d 124, 126-28 (D.C. Cir. 1987). In
Schiller, for instance, we held that the privilege covered
NLRB documents providing direction and advice to agency
lawyers on the litigation of cases under the Equal Access to
Justice Act. 964 F.2d at 1208. We specifically rejected the
contention “that the work-product doctrine requires that the
documents be created in anticipation of litigation over a
specific claim.” Id. “Exemption 5 extends to documents
prepared in anticipation of foreseeable litigation,” we
explained, “even if no specific claim is contemplated.” Id.
(citing Delaney, 826 F.2d at 127).
That is not to say that anticipation (or non-anticipation)
of a specific claim can never have any relevance when
assessing the applicability of the work-product privilege. The
contemplation of specific claims can help differentiate
situations in which lawyers have litigation adequately in mind
from those in which lawyers are not (yet) sufficiently
anticipating litigation.
Our decision in Coastal States Gas Corporation v.
Department of Energy, 617 F.2d 854, is illustrative. Coastal
States involved memoranda drafted by Department of Energy
lawyers to assist Department auditors in interpreting agency
regulations. The auditors used the memoranda when auditing
firms for compliance with agency regulations. Those audits
10
were not considered “investigations,” because, “at that point,
no charge had been made nor was a violation necessarily
suspected.” Id. at 858. But if an auditor subsequently
determined that a firm had committed a violation, the audit
could turn into a more targeted investigation and, in some
cases, give rise to litigation. See id. at 858-60.
We denied application of the work-product privilege to
the memoranda in Coastal States, finding “no indication . . .
that there was even the dimmest expectation of litigation
when the[] documents were drafted.” Id. at 865. We said that
“[t]o argue that every audit is potentially the subject of
litigation is to go too far.” Id. The Department thus had
“failed to carry its burden of establishing that litigation was
fairly foreseeable at the time the memoranda were prepared.”
Id. We distinguished the memoranda from documents
“prepared with a specific claim supported by concrete facts
which would likely lead to litigation in mind.” Id.
Accordingly, in a later case involving documents prepared “in
the course of an investigation” that “had reached the stage . . .
at which [the agency] was comparing the accumulated facts to
the caselaw and evaluating” specific legal theories to pursue,
we held that litigation was “sufficiently ‘in mind’ for [the]
document[s] to qualify as attorney work product.” SafeCard
Servs. Inc. v. SEC, 926 F.2d 1197, 1203 (D.C. Cir. 1991).
In both Coastal States and SafeCard, we used language
suggesting that, for the documents in question to be prepared
with an enforcement action sufficiently on the horizon to
implicate the work-product privilege, the agency’s
investigation must have advanced to the point that the
documents’ authors contemplated bringing “a specific claim
supported by concrete facts.” SafeCard, 926 F.2d at 1202
(quoting Coastal States, 617 F.2d at 865). In neither case,
however, did we establish any across-the-board specific-claim
11
prerequisite for application of the privilege. Indeed, as noted,
we later specifically disavowed any such specific-claim
requirement in Schiller, 964 F.2d at 1208.
Rather, the point of the specific-claim inquiry in Coastal
States and SafeCard was to differentiate between audits as to
which enforcement litigation might well never take place,
Coastal States, 617 F.2d at 865, and active investigations with
an enforcement action foreseeably at hand, SafeCard, 926
F.2d at 1202-03. In those cases, looking at whether agency
attorneys were contemplating a specific claim proved useful
in assessing the likelihood that litigation would ever come to
pass. At an early stage, such as a neutral compliance audit
with no specific claim (or even any violation) in mind, there is
insufficient reason to anticipate litigation. But for documents
created at a later stage in which the agency contemplates
bringing a specific action, disclosure might reveal the
government’s “legal theories,” “weigh[ing of] facts and
evidence,” or “candid[] evaluat[ion]” of a case. See Coastal
States, 617 F.2d at 864.
We face a very different situation here. A specific-claim
requirement would make little sense in the context of the Blue
Book. Unlike the audit documents at issue in Coastal
States—which might well never be used (or be of use) in
litigation—the Blue Book is entirely about the conduct of
litigation. It is aimed directly for use in (and will inevitably
be used in) litigating cases. Its disclosure therefore risks
revealing DOJ’s litigation strategies and legal theories
regardless of whether it was prepared with a specific claim in
mind. It was prepared with the litigation of all charges and
all cases in mind. The presence or absence of a specific claim
or transaction might be a helpful consideration in the context
of an agency compliance inquiry with no enforcement action
or litigation necessarily on the horizon. But it is an unhelpful
12
consideration here given that the Blue Book undoubtedly was
created in anticipation of—and for use in—foreseeable
litigation, i.e., federal criminal prosecutions.
NACDL relies heavily on our decision in Sealed Case,
146 F.3d 881. There, we considered the applicability of the
work-product privilege to a lawyer’s notes and other
documents prepared in anticipation of a possible action
brought against the lawyer’s client. We found the documents
were covered by the privilege even though no specific claim
against the client had yet emerged. See id. at 885-86. In
discussing the significance of the fact that no specific claim
had arisen by the time of the documents’ creation, we drew a
distinction between two types of cases. First, we pointed to
Coastal States and SafeCard in observing that, in prior cases
in which “the documents at issue had been prepared by
government lawyers in connection with active investigations
of potential wrongdoing,” we had required anticipation of a
specific claim in order to invoke the work-product privilege.
Id. at 885. By contrast, in cases like Schiller, in which
lawyers acted “not as prosecutors or investigators of
suspected wrongdoers, but as legal advisors protecting their
agency clients from the possibility of future litigation,” we
rejected the need for a specific claim to implicate the
privilege. Id. at 885-86. The facts in Sealed Case fell into the
latter category.
This case, according to NACDL, fits within the former
category because it involves lawyers acting “as prosecutors.”
While that may be so, Sealed Case did not hold that, in any
case involving documents prepared by or for prosecutors, the
work-product privilege could apply only if the documents had
been created in anticipation of a specific claim. Instead,
because Sealed Case did not involve documents created by
prosecutors, we expressly declined to address whether “the
13
Coastal States/SafeCard specific claim test has any continued
vitality when government lawyers act as prosecutors or
investigators of suspected wrongdoers.” Id. at 885. And as
we have explained, the existence (or non-existence) of a
specific claim proved salient in those cases as a means of
identifying whether documents had been prepared at a time
when litigation was sufficiently in mind—i.e., whether
“litigation was a real possibility.” Id. at 884. But in the case
of a document like the Blue Book, prepared entirely for use in
wholly foreseeable (even inevitable) litigation, there is no
need to apply any specific-claim test to conclude that
litigation is sufficiently likely to warrant application of the
work-product privilege.
2.
NACDL next argues that the Blue Book falls outside the
work-product privilege because it aims to advance a non-
adversarial function—namely, education and training of
prosecutors. NACDL advocates drawing a line between
(unprivileged) documents that convey agency policy and
(potentially privileged) documents that help the agency
prevail in court. Whatever the validity of such a line, it would
not advance NACDL’s cause because the Blue Book was
designed to help federal prosecutors prevail in court on behalf
of the government.
We have long recognized that the applicability of the
work-product privilege can turn in significant measure on a
document’s function. See Delaney, 826 F.2d at 127 (citing
Coastal States, 617 F.2d at 858). And we agree with NACDL
that materials serving no cognizable adversarial function, such
as policy manuals, generally would not constitute work
product. See Coastal States, 617 F.2d at 863. The Blue
Book, however, does serve an adversarial function.
14
The Book does not merely pertain to the subject of
litigation in the abstract. Instead it addresses how attorneys
on one side of an adversarial dispute—federal prosecutors—
should conduct litigation. It describes how to respond to the
other side’s arguments, which cases to cite, and what material
to turn over and when to do so, among numerous other
practical and strategic considerations. The Blue Book, for
instance, “describes the types of claims defense counsel have
raised and could raise regarding different discovery issues, or
the tactics they could employ in litigation . . . and the
arguments prosecutors can make to respond to these claims.”
Gerson Decl. ¶ 21 (J.A. 85).
In any event, insofar as the Blue Book might also serve
non-adversarial functions, “a document can contain protected
work-product material even though it serves multiple
purposes, so long as the protected material was prepared
because of the prospect of litigation.” Deloitte, 610 F.3d at
138. As a result, “material generated in anticipation of
litigation may also be used for ordinary business purposes
without losing its protected status.” Id. In that light, any
educational or training function the Blue Book might serve
would not negate the document’s adversarial use in (and its
preparation in anticipation of) litigation. The Blue Book
therefore qualifies for the work-product privilege.
3.
NACDL also argues that a neutral recitation of legal rules
or case law in the manner of a treatise, as opposed to a
description of a lawyer’s litigation strategy or theory of the
case, fails to qualify as attorney work product. That
distinction is of no assistance to NACDL because the latter
category more fairly describes the Blue Book than does the
former.
15
In Schiller, we found the work-product privilege
applicable to “lawyer-prepared documents containing tips and
advice for litigating cases under the Equal Access to Justice
Act.” Sealed Case, 146 F.3d at 885 (describing Schiller).
Much like the documents at issue in Schiller, the Blue Book
contains case-handling tips and tactical advice for litigating
discovery matters in criminal prosecutions: “in addition to
legal analysis,” the Blue Book includes “a comprehensive set
of strategic considerations, procedures, and practical advice
for conducting criminal prosecutions,” much of which is
“interspersed within the legal analysis.” Goldsmith First
Decl. ¶ 9 (J.A. 96).
As a result, unlike “neutral” accounts of government
policy like the United States Attorneys’ Manual, the Blue
Book imparts litigation strategy to government lawyers: it
conveys “advice on criminal discovery practices, potential
strategic and logistical concerns, interpretations of law and
risk assessments in light of relevant legal authority, . . .
practice notes, techniques, procedures, and legal strategies
that in-the-field prosecutors may and do employ during the
course of criminal proceedings.” Id. ¶ 6 (J.A. 94). As with
the tips and advice in Schiller, the Blue Book thus consists of
exactly the “sort of information—prepared in anticipation of
litigation—[which] falls within the attorney work-product
privilege and, therefore, within [E]xemption 5.” Schiller, 964
F.2d at 1208.
To be sure, the Blue Book contains certain information—
such as “compilations of cases,” Gerson Decl. ¶ 21 (J.A.
85)—that may come with a seeming air of neutrality if
considered in strict isolation. But disclosure of the publicly-
available information a lawyer has decided to include in a
litigation guide—such as citations of (or specific quotations
from) particular judicial decisions and other legal sources—
16
would tend to reveal the lawyer’s thoughts about which
authorities are important and for which purposes. The Blue
Book, for instance, does not include lists of cases in a
vacuum. It instead “offers compilations of cases that
prosecutors can use to support different arguments” in
litigation as well as “[c]ases illustrating potential pitfalls that
prosecutors should avoid” when conducting discovery. Id.
(J.A. 85-86). That sort of information squarely implicates the
work-product privilege.
III.
Finally, NACDL argues that, even if certain portions of
the Blue Book qualify as work product and thus are exempt
from disclosure, DOJ must disclose any non-exempt portions.
NACDL relies on the FOIA’s direction to agencies to disclose
any non-exempt “portion” of a record containing exempt
material if the non-exempt parts are “reasonably segregable.”
5 U.S.C. § 552(b). And as we have long held, “[t]he focus of
the FOIA is information, not documents, and an agency
cannot justify withholding an entire document simply by
showing that it contains some exempt material.” Mead Data,
566 F.2d at 260.
As the district court noted, however, an agency need not
segregate and disclose non-exempt material if a record is
“fully protected” as work product. Nat’l Ass’n of Criminal
Def. Lawyers, 75 F. Supp. 3d at 557 (quoting Judicial Watch,
432 F.3d at 371). In such cases, because the entire record is
exempt from disclosure, there are no non-exempt portions left
to segregate. The district court found that the Blue Book is
fully protected as work product and thus did not undertake a
separate segregability analysis. Id. at 561.
17
In cases involving voluminous or lengthy work-product
records—the Blue Book is more than 500 pages in length—
we think it generally preferable for courts to make at least a
preliminary assessment of the feasibility of segregating non-
exempt material. When reviewing such records in camera,
courts may look at “what proportion of the information in a
document [appears to be] non-exempt and how that material
is dispersed throughout the document.” Mead Data, 566 F.2d
at 261. Material is more likely to be reasonably segregable in
longer documents with “logically divisible sections.” See id.
at 261 n.54. In such cases, courts presumably would examine
each section to determine if it might be amenable to
segregation and disclosure. Such a determination also may be
possible on the basis of the agency’s Vaughn index and
affidavits, if those materials suggest that a lengthy work-
product record likely contains segregable material.
We recognize that “FOIA places the burden of justifying
nondisclosure on the agency seeking to withhold information,
and this burden cannot be shifted to the courts by sweeping,
generalized claims of exemption for documents submitted for
in camera inspection.” Id. at 260. But when an agency has
maintained all along that a record is “fully protected” as work
product, its Vaughn index and affidavits may not address
segregability. In such cases, it may be that portions of the
record which otherwise appear to contain neutral information
are encompassed within (and integrated with) protected work
product and thus there is no portion that is “reasonably
segregable.” But there may also be cases in which a record
containing some amount of work product also contains—or at
least appears to contain—segregable, non-exempt material
subject to disclosure. In that circumstance, a court
presumably would require the agency to provide “a
description of which parts of the withheld documents are non-
18
exempt . . . and either disclose them or offer adequate
justification for continuing to withhold them.” Id.
In this case, the government acknowledges that it has
already publicized its general policy statements about federal
prosecutors’ discovery obligations. In its response to the
petition for rehearing filed after we issued our original (and
hereby superseded) opinion in this case, the government
emphasized that the Department of Justice “has made public
the agency policy governing federal prosecutors’ discovery
obligation,” and provided website links to pertinent sections
of the United States Attorneys’ Manual and three memoranda
issued by the Deputy Attorney General addressing the topic.
Gov’t Resp. to Pet. for Reh’g 11-12. The government’s
submissions in this case also confirm that the Blue Book
contains a discussion of those policy statements. See Gov’t
Br. 46, 61-62. One of the government’s declarations, for
instance, notes that Chapter 1 of the Blue Book is entitled,
“Department of Justice Policy, Positions, and Guidance.”
Goldsmith Second Decl. ¶ 7 (J.A. 103).
In light of the government’s submissions, we think it
appropriate to assess whether the Blue Book contains non-
exempt statements of policy that are reasonably segregable
from the protected attorney work product and that therefore
should be disclosed. Because the district court did not
consider whether the Blue Book contains reasonably
segregable statements of the government’s discovery policy,
we remand for that court to conduct that analysis in the first
instance. Such an analysis, we have explained, does not call
for parsing the Blue Book “line-by-line” or segregating
material “dispersed throughout the document.” Mead Data,
566 F.2d at 261. Instead, the emphasis is on segregation of
non-exempt material found in “logically divisible sections.”
Id. at 261 n.54. If the district court concludes that the Blue
19
Book contains non-exempt and reasonably segregable
statements of the government’s discovery policy, the court
could then consider whether Exemption 7(E) of FOIA would
protect any of that material from disclosure. The district court
to this point has had no occasion to examine the government’s
argument that Exemption 7(E) shields the Blue Book from
disclosure.
* * * * *
For the foregoing reasons, we affirm the judgment of the
district court in part and remand for an assessment of whether
the Blue Book contains non-exempt and reasonably
segregable statements of discovery policy.
So ordered.
SENTELLE, Senior Circuit Judge, with whom Senior Circuit
Judge EDWARDS joins, concurring: I concur in the decision of
the majority, not because I believe it to be the correct result, but
because I am compelled to do so by precedent. Boiling the
controversy down to its essence, the answer to one two-part
question determines the result: Does the attorney work-product
privilege protected by FOIA Exemption 5 protect only
information prepared in anticipation of litigating a specific
claim; and if not, does it extend far enough to encompass a text
prepared for the education of attorneys who may in the future be
generally involved in litigation? The majority, I believe
correctly, opines that this circuit has answered that question in
Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992), and has
further restated the answer in In re Sealed Case, 146 F.3d 881,
884 (D.C. Cir. 1998). In this case, we consider a manual
prepared for internal use of the Department of Justice
concerning the important legal area of criminal litigation
discovery. The manual was prepared not for use in a specific
piece of litigation, but for the whole universe of cases that might
be encountered by the Department’s criminal attorneys.
Likewise, in Schiller, the relevant documents at issue in a FOIA
proceeding were prepared to provide tips for the handling of
questions that might come up in Equal Access to Justice Act
litigation. 964 F.2d at 1208. In Schiller, as reiterated in In re
Sealed Case, we held that the attorney work-product privilege
adopted in Exemption 5 of the FOIA protected the disputed
document. Id. at 1208-09. Although I think the normative and
perhaps ethical implications of extending this protection to a
prosecutorial manual are sufficient to give pause, I cannot see
any legal difference between this case and Schiller which would
permit us to reach a different result.
We are bound by the prior decisions of this circuit as much
as those of the Supreme Court. See, e.g., Sierra Club v. Jackson,
2
648 F.3d 848, 854 (D.C. Cir. 2011) (“It is fixed law that ‘this
Court is bound to follow circuit precedent until it is overruled
either by an en banc court or the Supreme Court.’” (quoting
Maxwell v. Snow, 409 F.3d 354, 358 (D.C. Cir. 2005)). Schiller,
as restated in Sealed Case, held that we found the work-product
privilege applicable to “lawyer-prepared documents containing
tips and advice for litigating cases under the Equal Access to
Justice Act.” Sealed Case, 146 F.3d at 885 (analyzing and
restating Schiller). Unless and until the Supreme Court or an en
banc decision by this court overrules or modifies Schiller, we
must enter decisions consistent with that holding. I hope to see
the day when such a reversal or modification occurs, for more
than one reason.
First, I believe that Schiller was wrongly decided in the first
instance. As the majority notes, the purpose in the privilege
adopted into Exemption 5 is “to protect ‘the integrity of the
adversary trial process itself.’” Maj. Op. at 5 (quoting Jordan v.
Dep’t of Justice, 591 F.2d 753, 775 (D.C. Cir. 1978) (en banc)).
That purpose is served by allowing a litigating attorney “a ‘zone
of privacy’ within which to think, plan, weigh facts and
evidence . . . .” Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854, 864 (D.C. Cir. 1980). That goal is accomplished
by an exemption which protects from disclosure the litigation
decisions and related information in the handling of specific
litigation. I grant that it is possible to interpret Exemption 5
broadly; that does not mean it is appropriate to do so. The
exemptions to FOIA are “explicitly made exclusive . . . and must
be ‘narrowly construed.’” Milner v. Dep’t of Navy, 562 U.S.
562, 565 (2011) (quoting FBI v. Abramson, 456 U.S. 615, 630
(1982) (other citations and internal quotations omitted)).
Furthermore, applying the broad construction of Schiller to
the case before us is inconsistent both with the statutory purpose
of FOIA and the longstanding values of justice in the United
3
States. The purpose of the Freedom of Information Act is to
serve “the citizens’ right to be informed about what their
government is up to.” U.S. Dep’t of Justice v. Reporters Comm.
for Freedom of the Press, 489 U.S. 749, 773 (1989) (internal
quotation marks omitted). There is no area in which it is more
important for the citizens to know what their government is up
to than the activity of the Department of Justice in criminally
investigating and prosecuting the people. The government
certainly has the power to claim a FOIA exemption to hide its
internal manuals describing how it goes about that awesome
undertaking. But if it chooses to exercise that power, then the
people might be forgiven for cynically asking “what is it you
have to hide?”
Reflecting on the consistency of Schiller’s interpretation of
Exemption 5 with the original statutory purposes, one may
recall, as does the majority, that the exemption was to protect
attorneys in litigation as under the privilege traditionally
afforded in litigation itself. I cannot help but wonder if an
insurance defense attorney had written a secret treatise passed
around among his bar on how to defend—for
example—defective product cases, would we, if that treatise
became relevant in specific litigation, afford the protection of
the attorney-client privilege to a document not prepared for a
particular client or a particular case, but only to educate
attorneys of a particular sort in the litigation of a particular kind
of case? I think not. But even if we did, I do not think this
would justify stretching the FOIA exemption to the point of
protecting the departmental tactics and strategies in criminal
prosecution from discovery by the citizenry. I cannot help but
recall the words of Justice Sutherland for the Supreme Court in
Berger v. United States:
The United States Attorney is the representative not of an
ordinary party to a controversy, but of a sovereignty whose
4
obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in
a criminal prosecution is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of
which is that guilt shall not escape or innocence suffer. He
may prosecute with earnestness and vigor–indeed, he
should do so. But, while he may strike hard blows, he is
not at liberty to strike foul ones. It is as much his duty to
refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means
to bring about a just one.
295 U.S. 78, 88 (1935).
It is often said that justice must not only be done, it must be
seen to be done. Likewise, the conduct with the U.S. Attorney
must not only be above board, it must be seen to be above board.
If the people cannot see it at all, then they cannot see it to be
appropriate, or more is the pity, to be inappropriate. I hope that
we shall, in spite of Schiller, someday see the day when the
people can see the operations of their Department of Justice.
In short, I join the judgment of the majority, not because I
want to, but because I have to.