Lucaj v. Federal Bureau of Investigation , 2017 FED App. 0068P ( 2017 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0068p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DODA LUCAJ, ┐
Plaintiff-Appellant, │
│
> No. 16-1381
v. │
│
│
FEDERAL BUREAU OF INVESTIGATION; UNITED STATES │
DEPARTMENT OF JUSTICE, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 4:14-cv-12635—Terrence George Berg, District Judge.
Argued: January 27, 2017
Decided and Filed: March 24, 2017
Before: MERRITT, MOORE, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Martin E. Crandall, CLARK HILL PLC, Detroit, Michigan, for Appellant. Derri T.
Thomas, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellees. ON
BRIEF: Martin E. Crandall, Andrew M. Mast, Zachary A. Rowley, CLARK HILL PLC,
Detroit, Michigan, for Appellant. Derri T. Thomas, UNITED STATES ATTORNEY’S
OFFICE, Detroit, Michigan, for Appellees.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. The Freedom of Information Act (“FOIA”)
“implements a general philosophy of full agency disclosure of government records,” Detroit
No. 16-1381 Lucaj v. FBI et al. Page 2
Free Press Inc. v. DOJ, 829 F.3d 478, 480 (6th Cir. 2016) (en banc) (internal quotation marks
omitted), subject to certain exemptions. At issue in this case is the exemption from disclosure
for “matters that are . . . 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) (2012). The Defendants-Appellees, the Federal Bureau of Investigation (“FBI”) and
the United States Department of Justice (“DOJ”), argue that “inter-agency or intra-agency”
includes agencies of other countries. Their entreaty, which could be easily granted by an Act of
Congress, cannot so easily be granted by us. We must follow the plain language of § 552(b)(5),
which, as we discuss below, is limited to memorandums or letters between authorities of the
Government of the United States. Therefore, we REVERSE the judgment of the district court,
which granted summary judgment to the Government, and we REMAND for further
proceedings consistent with this opinion.
I. BACKGROUND
This case began with an FBI investigation into Plaintiff-Appellant Doda Lucaj, whom it
believed to be connected to “attacks made by an ethnic Albanian group against facilities in
Montenegro in hopes of influencing Montenegrin elections.” R. 22-2 (Hardy Decl. ¶ 5) (Page ID
#327). Lucaj was indicted by Montenegrin authorities in 2006 and was arrested shortly
thereafter in Vienna, Austria. Id. Of the belief that his arrest was “illegal,” and furthermore that
the United States was involved, see R. 1 (Compl. ¶¶ 1–3) (Page ID #1–2), Lucaj sent a letter to
the FBI requesting three pieces of information pursuant to FOIA:
1. Any and all information relating to any investigation, arrest, detention,
and/or interrogation of Mr. Lucaj [related to his arrest, detention, and
interrogation in Vienna, Austria on December 7, 2006].
2. Any and all documents relating to the same, including any and all FD-
302s.1
3. The identities of any agents who participated and/or witnessed any
interview or interrogation of Mr. Lucaj, including, but not limited to, FBI
1
“FD-302s are the forms used by the FBI to record investigative activity, particularly, although not
exclusively, the results of interviews.” Office of the Inspector General for the Department of Justice, Document
Management in the FBI, in An Investigation of the Belated Production of Documents in the Oklahoma City
Bombing Case (Mar. 19, 2002), https://oig.justice.gov/special/0203/chapter2.htm.
No. 16-1381 Lucaj v. FBI et al. Page 3
Agents, Immigration and Customs Enforcement Agents and anybody else
working on this.
R. 1-2 (May 11, 2012 Letter at 1) (Page ID #9); R. 22-2 (Hardy Decl. ¶ 6) (Page ID #328).
Lucaj’s requests were met with some bureaucratic delay,2 so he requested that the district court
order their production pursuant to § 552(a)(4)(B).
Since Lucaj filed his complaint, the DOJ and FBI have produced some responsive
documents but have declared others exempt. See R. 17-5 (Brodfuehrer Decl. ¶¶ 8, 10, 15–25)
(Page ID #285–86, 288–93) (citing, inter alia, 5 U.S.C. § 552(b)(3), (5)); R. 22-2 (Hardy Decl.
¶¶ 25–27) (Page ID #332–36) (citing, inter alia, 5 U.S.C. § 552(b)(3)). Chief among the
allegedly exempt documents were two eight-page requests for assistance (“RFA”) from the
Office of International Affairs (“OIA”), a part of the DOJ Criminal Division. See R. 17-5
(Brodfuehrer Decl. ¶ 10) (Page ID #286).
The first of these requests was sent by the OIA to the Central Authority of Austria
pursuant to a mutual legal assistance treaty (“MLAT”), id. ¶¶ 11–12, 22 (Page ID #286–87, 291),
which obligates the two countries to “provide mutual assistance . . . in connection with the
investigation and prosecution of offenses,” Treaty Between the Government of the United States
of America and the Government of the Republic of Austria on Mutual Legal Assistance in
Criminal Matters, Austria-U.S., art. 1, ¶ 1, Feb. 23, 1995, S. Treaty Doc. 104-21 (1995).
Although the request naturally sought information from Austria, it also contained information
that the FBI did not want to disclose: (1) “factual information possessed by the DOJ at the time
the MLAT request was executed,” (2) “legal theories of the case,” (3) “the history of legal or law
enforcement actions previously taken against [Lucaj],” (4) “a summary of the facts and evidence
in the investigation,” (5) “the statutory basis for the alleged criminal offenses,” (6) “personal
information regarding the subjects of the investigation,” and (7) “the assistance requested and the
procedures to be followed when performing said assistance.” Id. ¶ 12 (Page ID #286–87).
2
On August 30, 2012, the FBI informed Lucaj that it located approximately 1,922 pages of potentially
responsive documents and gave him thirty days to commit to paying the fees. R. 1-3 (Aug. 30, 2012 Letter) (Page
ID #13); R. 22-2 (Hardy Decl. ¶ 12) (Page ID #329). In response, on September 18, 2012, Lucaj sent a letter to the
FBI committing to the fees and requesting all 1,922 pages, R. 1-4 (Sept. 18, 2012 Letter) (Page ID #25). However,
the FBI claims that it did not receive Lucaj’s responsive letter until November 6, 2012. R. 22-2 (Hardy Decl. ¶ 14)
(Page ID #330). Because the FBI did not receive the letter within thirty days, it administratively closed Lucaj’s
FOIA request, which appears to have caused the lengthy delay in producing the responsive documents. See id.
No. 16-1381 Lucaj v. FBI et al. Page 4
The second request was sent to an unnamed foreign government, with which the United
States does not share an MLAT. Id. ¶ 13 (Page ID #287). The document is a “letter request for
information in the possession of a foreign government, and it asks for permission to interview
various individuals regarding a national security investigation of [Lucaj] and others for possible
violations of United States law.” Id. Like the RFA to the Central Authority of Austria, the
second RFA reveals certain information in addition to the request: (1) “factual information
possessed by DOJ at the time of the letter request,” (2) “DOJ’s legal theories of the case,”
(3) “the history of legal or law enforcement actions previously taken against [Lucaj],”
(4) “a summary of the facts and evidence in the investigation,” (5) “the statutory basis for the
alleged criminal offenses,” (6) “personal information regarding the subjects of the investigation,”
(7) “the assistance requested,” and (8) “the procedures to be followed when performing said
assistance.” Id.
Once it believed that it had “fully discharged its disclosure obligations in response to
plaintiff’s attorney’s FOIA request,” the FBI filed the motion for summary judgment that is the
subject of this appeal. R. 17 (Def.’s Mot. Summ. J. at 1) (Page ID #85). Lucaj disagreed that the
FBI discharged its obligations, particularly with respect to the aforementioned RFAs, so he
opposed the FBI’s motion. R. 23 (Pl.’s Resp. Def.’s Mot. Summ. J. & Cross-Mot. Partial Summ.
J. at 4, 11–14) (Page ID #481, 488–91). The FBI maintained that it had fully discharged its
disclosure obligations, and for the first time in its reply argued that the “common interest
doctrine,” which “permits parties whose legal interests coincide to share privileged materials
with one another in order to more effectively prosecute or defend their claims,” Hunton
& Williams v. DOJ, 590 F.3d 272, 277–78 (4th Cir. 2010), shielded the RFAs from disclosure.3
See R. 24 (Def.’s Reply Br. in Support of Def.’s Mot. Summ. J. at 3–4) (Page ID #496–97).
Lucaj opposed this application of the common-interest doctrine at a hearing on the summary-
3
In its motion for summary judgment, the FBI appended a declaration from Gail A. Brodfuehrer, an
attorney in the FOIA/Privacy Act Unit of the Office of Enforcement Operations in the DOJ Criminal Division, in
which she stated, “Where the communications are neither ‘inter-’ nor ‘intra-agency,’ but are between a Government
agency and a party possessing common litigation interests, courts have applied the common interest doctrine to
satisfy the threshold requirement of Exemption 5.” R. 17-5 (Brodfuehrer Decl. ¶ 19) (Page ID #289–90) (citing
Hunton & Williams, 590 F.3d at 277–80; In re Lindsey, 158 F.3d 1263, 1282 (D.C. Cir. 1998)). However, the FBI
did not make this argument in its brief in support of its motion for summary judgment. See R. 17 (Def.’s Br. in
Support of Def.’s Mot. Summ. J.) (Page ID #81–110).
No. 16-1381 Lucaj v. FBI et al. Page 5
judgment motion. See R. 30 (Mot. Summ. J. Hr’g Tr. at 24) (Page ID #607). The FBI’s
invocation of the common-interest doctrine ultimately persuaded the district court that the
requests to Austria and to the unnamed government were exempt under § 552(b)(5). See Lucaj v.
FBI, No. 14-12635, 2016 WL 319525, at *3–5 (E.D. Mich. Jan. 27, 2016). Accordingly, the
district court granted the FBI’s motion. Id. at *5. The FBI’s argument does not persuade us,
however, and we explain why below.
II. DISCUSSION
A. Standard of Review
Pursuant to 5 U.S.C. § 552(a)(4)(B), a district court reviews de novo an agency’s denial
of a request for disclosure of agency records. See Rugiero v. DOJ, 257 F.3d 534, 543 (6th Cir.
2001). On appeal, we review de novo a district court’s grant of summary judgment. Id. We
affirm such an award “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
B. Exemption 5
As a general matter, FOIA demands that “each agency, upon any request for records
which (i) reasonably describes such records and (ii) is made in accordance with published rules
stating the time, place, fees (if any), and procedures to be followed, shall make the records
promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). However, “[t]his mandate does not
apply . . . to information that falls within any of nine specific exemption categories listed at 5
U.S.C. § 552(b).” Abraham & Rose, P.L.C. v. United States, 138 F.3d 1075, 1078 (6th Cir.
1998). “In keeping with the philosophy of disclosure, however, these exemptions are narrowly
construed, and the government has the burden of establishing that one of them applies.” Schell v.
HHS, 843 F.2d 933, 937 (6th Cir. 1988) (internal quotation marks omitted).
The fifth of these exemptions targets “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, provided that the deliberative process privilege shall not apply to records created
25 years or more before the date on which the records were requested.” 5 U.S.C. § 552(b)(5).
No. 16-1381 Lucaj v. FBI et al. Page 6
Thus, to declare memorandums or letters exempt from disclosure under this rule, the
Government must make two showings: the document’s “source must be a Government agency,
and it must fall within the ambit of a privilege against discovery under judicial standards that
would govern litigation against the agency that holds it.” Dep’t of the Interior v. Klamath Water
Users Protective Ass’n, 532 U.S. 1, 8 (2001) [hereinafter Klamath].
It may appear from the phrasing of the first condition that a memorandum sent from a
Government agency to a nonagency would be exempt, whereas a memorandum sent from a
nonagency to a Government agency would not be exempt. However, such a reading would
contradict the plain meaning of the statute. Inter- means “between” or “among.” See Inter-,
Merriam-Webster, https://www.merriam-webster.com/dictionary/inter (last visited Mar. 15,
2017); accord Inter, Black’s Law Dictionary (10th ed. 2014). For instance, an inter-session
recess is “a break between formal sessions of Congress”—one session of Congress ending as the
recess begins and another session of Congress beginning as the recess ends. See NLRB v. Noel
Canning, —— U.S. ——, 134 S. Ct. 2550, 2556 (2014). Likewise, inter-agency memorandums
necessarily means memorandums between agencies—one agency generating the memorandum
and another agency in receipt of the memorandum. The legislative history confirms this
common-sense meaning. The House Committee on Government Operations, to whom the soon-
to-be-FOIA bill was referred, stated in its report on the bill that inter-agency and intra-agency
memorandums or letters should be exempt because “a Government agency cannot always
operate effectively if it is required to disclose documents or information which it has received or
generated before it completes the process of awarding a contract or issuing an order, decision or
regulation.” H.R. Rep. No. 89-1497, at 10 (1966) (emphasis added). Therefore, we take the
Supreme Court’s instruction that the document’s “source must be a Government agency” not to
rule out the corresponding requirement that the document’s destination must also be an agency.
We further hold that, consistent with this rule and in keeping with the plain meaning of the
statute and legislative intent, the destination of the document must be a Government agency as
well.
With these foundational concepts in mind, we turn to whether the RFAs are “intra-
agency” or “inter-agency.” In the first place, and based on definitions alone, the RFAs are not
No. 16-1381 Lucaj v. FBI et al. Page 7
intra-agency memorandums or letters. Intra means “within,” see Intra-, Merriam-Webster,
https://www.merriam-webster.com/dictionary/intra (last visited Mar. 15, 2017); accord Intra,
Black’s Law Dictionary (10th ed. 2014), and the very purpose of the RFAs was to be sent
without (i.e., to foreign governments). The OIA generated the requests because it wanted to
obtain assistance from the Central Authority Austria and an unnamed country. See R. 17-5
(Brodfuehrer Decl. ¶¶ 10–13) (Page ID #286–87). And the record indicates that the RFAs were,
in fact, sent to these countries. See id. ¶ 22 (Page ID #291). Therefore, the only question in this
case is whether the RFAs are inter-agency memorandums or letters.
Key to answering this question is the Supreme Court’s admonition that “the first
condition of Exemption 5 is no less important than the second; the communication must be
‘inter-agency or intra-agency.’” Klamath, 532 U.S. at 9. Indeed, the first condition here is all-
important. However broad the term agency can be, see Anne Joseph O’Connell, Bureaucracy at
the Boundary, 162 U. Pa. L. Rev. 841 (2014), FOIA offers, for our purposes, a more limited
definition: “‘agency’ means each authority of the Government of the United States.” 5 U.S.C.
§ 551(1), cited in 5 U.S.C. § 552(f)(1) (elaborating that “‘agency’ as defined in section 551(1) of
this title includes any executive department, military department, Government corporation,
Government controlled corporation, or other establishment in the executive branch of the
Government (including the Executive Office of the President), or any independent regulatory
agency”). So, to be inter-agency memorandums or letters, the RFAs must have been sent from
an authority of the Government of the United States to an authority of the Government of the
United States. The OIA, undoubtedly an authority of the Government of the United States, sent
the RFAs to the Central Authority of Austria and an unnamed country, undoubtedly not
authorities of the Government of the United States. The RFAs’ recipients having failed to meet
FOIA’s definition of agency, we hold that the RFAs from the OIA to the Central Authority of
Austria and the unnamed country are not inter-agency. And given that the RFAs are not intra-
agency either, they may not be withheld under Exemption 5.
No. 16-1381 Lucaj v. FBI et al. Page 8
C. The Common Interest Doctrine, the Consultant Corollary, and the Expansion of
Exemption 5
The appellees argue that the Central Authority of Austria and the unnamed country need
not be agencies because the so-called common-interest doctrine envelops them into Exemption
5.4 This doctrine, which has been used to broaden the reach of Exemption 5 in a trilogy of
Fourth Circuit cases, “permits parties whose legal interests coincide to share privileged materials
with one another in order to more effectively prosecute or defend their claims.” Am. Mgmt.
Servs., LLC v. Dep’t of the Army, 703 F.3d 724, 732 (4th Cir. 2013) (quoting Hunton
& Williams, 590 F.3d at 277–78); Hanson v. USAID, 372 F.3d 286, 292 (4th Cir. 2004). The
reasoning goes that “[b]ecause the common interest doctrine requires the agency to determine
that the public interest and the litigation partner’s interest have converged, communications
between the agency and its partner can be understood as ‘intra-agency’ for purposes of
Exemption 5.” Hunton & Williams, 590 F.3d at 280.
Relatedly, some circuits have recognized a “consultant corollary” to Exemption 5, which
“extends to communications between Government agencies and outside consultants hired by
them” so long as there is “the expectation that communications will remain confidential” and
there is “some indicia of a consultant relationship between the outsider and the agency.” See
4
The appellees also argue that Lucaj waived argument on the common-interest doctrine. We hold that he
did not. First, “waiver” is likely not the word that appellees intend, as Lucaj has made no indication that he
voluntarily abandoned the common-interest issue. Rather, the appellees likely mean to argue that Lucaj forfeited the
common-interest doctrine. Although the terms waiver and forfeiture are often used interchangeably, “[t]he two are
really not the same.” Freytag v. Commissioner, 501 U.S. 868, 894 n.2 (1991) (Scalia, J., concurring), cited in
United States v. Olano, 507 U.S. 725, 733 (1993). “Whereas forfeiture is the failure to make the timely assertion of
a right, waiver is the intentional relinquishment or abandonment of a known right.” Olano, 507 U.S. at 733 (internal
quotation marks omitted). Thus, “[s]ome rights may be forfeited by means short of waiver, but others may not.
A right that cannot be waived cannot be forfeited by other means (at least in the same proceeding), but the converse
is not true.” Freytag, 501 U.S. at 894 n.2, cited in Olano, 507 U.S. at 733; cf. United States v. Soto, 780 F.3d 689,
701 (6th Cir. 2015) (distinguishing waiver and forfeiture under Federal Rule of Criminal Procedure 12).
With this distinction in mind, we observe that Lucaj has not forfeited the common-interest issue either. The
appellees first raised the issue in their reply brief. Lucaj’s next opportunity to address the matter occurred at the
hearing on the summary-judgment motion. To suggest that Lucaj forfeited an argument that he addressed as soon as
he could cuts against principles of forfeiture and, frankly, fairness. Litigants preserve arguments made for the first
time at a hearing if they “state the issue with sufficient clarity to give the court and opposing parties notice that it is
asserting the issue” and “provide some minimal level of argumentation in support of it.” United States v.
Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir. 2009). The common-interest doctrine was dispositive for the
district court, and the appellees raised it first, so there is no question that everyone had notice. Moreover, Lucaj has
provided sufficient argumentation to convince us that the common-interest doctrine does not apply here. Therefore,
he has not forfeited or waived the issue.
No. 16-1381 Lucaj v. FBI et al. Page 9
Nat’l Inst. of Military Justice v. DOD, 512 F.3d 677, 682, 685–86 (D.C. Cir. 2008); see also
Gov’t Land Bank v. GSA, 671 F.2d 663, 665 (1st Cir. 1982) (observing that “[b]oth parties agree
that a property appraisal, performed under contract by an independent professional, is an ‘intra-
agency’ document for purposes of the exemption”); Hoover v. U.S. Dep’t of the Interior, 611
F.2d 1132, 1138 (5th Cir. 1980) (holding that an appraisal report that an agency purchased from
an independent nongovernment appraiser “is an intra-agency memorandum within the meaning
of Exemption 5” because agencies “may have a special need for the opinions and
recommendations of temporary consultants” (internal quotation marks omitted)). These cases
reason, similarly to the common-interest doctrine cases, “that federal agencies occasionally will
encounter problems outside their ken, and it clearly is preferable that they enlist the help of
outside experts skilled at unravelling their knotty complexities.” Nat’l Inst. of Military Justice,
512 F.3d at 682–83 (internal quotation marks omitted).
We appreciate the concern of our sister circuits and the appellees that agencies have a
strong interest in confidential and frank communication with outsiders, including foreign
governments. But when the Department of the Interior made the same argument in Klamath, the
Supreme Court rejected it:
[T]he Department’s argument skips a necessary step, for it ignores the first
condition of Exemption 5, that the communication be “intra-agency or inter-
agency.” The Department seems to be saying that “intra-agency” is a purely
conclusory term, just a label to be placed on any document the Government would
find it valuable to keep confidential.
There is, however, no textual justification for draining the first condition
of independent vitality.
Klamath, 532 U.S. at 12. Congress also presaged the appellees’ concern “that it would be
impossible to have any frank discussion of legal and policy matters in writing if all such writings
were to be subjected to public scrutiny.” S. Rep. No. 89-813, at 9 (1965); see H.R. Rep. No. 89-
1497, at 10 (1966). But in the end, Congress chose to limit the exemption’s reach to “inter-
agency or intra-agency memorandums or letters,” 5 U.S.C. § 552(b)(5), not to “memorandums or
letters among agencies, independent contractors, and entities that share a common interest with
agencies.” In view of our responsibility to “narrowly construe[]” FOIA’s exemptions, see Schell,
No. 16-1381 Lucaj v. FBI et al. Page 10
843 F.2d at 937 (quoting Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)), our response
today echoes that of the Supreme Court and Congress: however important it may be for the OIA
to have frank communications with the Central Authority of Austria and an unnamed foreign
government, however common the interest between the OIA and its international partners, the
Central Authority of Austria and an unnamed foreign government are not, so far as Congress has
defined the term, agencies. Therefore, the RFAs from the OIA to these countries are not “inter-
agency or intra-agency memorandums or letters” within the scope of Exemption 5.
III. CONCLUSION
This case and the policy questions it raises are not over. It may be that Exemption 3
shields the RFA to the Central Authority of Austria, as the FBI argued in its briefing below, see
R. 24 (Reply Br. in Support of Def.’s Mot. Summ. J. at 1, 3, 6–7) (Page ID #494, 496, 499–500),
or that Exemptions 6 and 7 shield both RFAs, as the DOJ has claimed, R. 17-5 (Brodfuehrer
Decl. ¶¶ 8, 26–28) (Page ID #285, 293–95). More broadly, Congress may decide in due course
that letters and memorandums from agencies to foreign governments are shaded from FOIA’s
light. See Nat’l Inst. of Military Justice, 512 F.3d at 695–96 (Tatel, J. dissenting). However, our
role today is limited: to construe the meaning of Exemption 5. To that end, and that end alone,
we REVERSE the judgment of the district court and REMAND for further proceedings
consistent with this opinion.