New York Times Company v. U.S. Department of Justice ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE NEW YORK TIMES COMPANY, et
al.,
Plaintiffs,
Case No. 17-cv-00087 (CRC)
v.
U.S. DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
New York Times national security reporter Charlie Savage filed a Freedom of Information
Act request with the Office of Legal Counsel of the U.S. Department of Justice seeking
disclosure of a classified 1984 memorandum to the Attorney General from the then-Assistant
Attorney General for OLC, Theodore Olson. The memorandum purportedly discusses the
constitutionality of certain electronic surveillance activities contemplated by the National
Security Agency. After the Department withheld the requested memo and an associated cover
letter based on several FOIA exemptions, the Times and Savage filed suit. Both sides now move
for summary judgment on a single question: are the Olson memo and its cover letter subject to
the attorney-client privilege and therefore protected from disclosure by FOIA Exemption 5?
The Court finds that Exemption 5 applies and will grant summary judgment in favor of the
Department of Justice.
I. Factual Background
In October 2016, New York Times reporter Charlie Savage submitted a request under the
Freedom of Information Act (“FOIA”) to the Office of Legal Counsel (“OLC”) seeking a
specific document: “Memorandum for the Attorney General from Theodore B. Olson, Assistant
Attorney General, Office of Legal Counsel, Re: Constitutionality of Certain National Security
Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence
Surveillance Act of 1978, (May 24, 1984).” Def.’s Mem. Supp. Mot. Summ. J. (“Def.’s MSJ”)
2. Shortly thereafter, Savage amended his FOIA request to explicitly encompass both the
document and its associated “cover letter” (collectively, the “Olson Memo”). Id.
After OLC did not timely respond to his request, Savage and The New York Times
Company (collectively “the Times”) brought suit in January 2017. Following the complaint,
OLC informed the Times that it had identified two responsive documents, but that both
documents were being withheld in full pursuant to Exemption 5 of FOIA and in part pursuant to
Exemptions 1 and 3 of FOIA. Def.’s MSJ 3. On May 3, 2017, the Court issued a minute order
bifurcating briefing on summary judgment. The parties subsequently filed cross-motions for
summary judgment on the sole issue of whether Exemption 5 supported withholding the Olson
Memo.
II. Legal Background
A party is entitled to summary judgment when the record shows that there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the Court views the
evidence in the light most favorable to the nonmoving party and draws all reasonable inferences
in its favor. Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C. Cir. 2011). FOIA cases are
typically and appropriately resolved on summary judgment. See, e.g., Brayton v. Office of U.S.
Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).
When an agency withholds documents under one of the exemptions to FOIA, “[t]he
burden is on the agency” to show that the documents “have not been improperly withheld.” U.S.
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Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). In addition, exemptions to FOIA
are to be narrowly construed. See, e.g., AquAlliance v. U.S. Bureau of Reclamation, 856 F.3d
101, 103 (D.C. Cir. 2017).
At issue here is FOIA Exemption 5, which permits the withholding of “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). Exemption 5 essentially excludes
from disclosure any materials that would be privileged from discovery in civil litigation,
including, as relevant here, those protected by the attorney-client privilege. Tax Analysts v. IRS,
294 F.3d 71, 76 (D.C. Cir. 2002).
The attorney-client privilege protects the disclosure of confidential communications
between attorneys and their clients. See, e.g., Coastal States Gas Corp. v. Dep’t of Energy, 617
F.2d 854, 862 (D.C. Cir. 1980). The privilege thus “encourage[s] full and frank communication
between attorneys and their clients and thereby promote[s] broader public interests in the
observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383,
389 (1981). However, the privilege does not protect all communications between an attorney
and her client. Rather, it applies only to “[c]onfidential disclosures by a client to an attorney
made in order to obtain legal assistance.” Fisher v. United States, 425 U.S. 391, 403 (1976).
The privilege encompasses both a client’s communications to his attorney and the attorney’s
“communication [to her client] based on confidential information provided by the client.”
Schlefer v. United States, 702 F.2d 233, 245 (D.C. Cir. 1983). The attorney-client privilege fully
applies to communications between government attorneys and the government officials and
agencies to which they render legal service. See, e.g., Tax Analysts v. IRS, 117 F.3d 607, 618
(D.C. Cir. 1997).
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III. Analysis
The Department claims that the Olson Memo is protected under the attorney-client
privilege and thus is subject to withholding under Exemption 5. The Times retorts that the
memo is not privileged because (1) it contains no confidential client information and (2) it has
not been kept confidential. Additionally, the Times contends that even if the Olson Memo falls
under the attorney-client privilege, it is not protected by Exemption 5 because it has become the
“working law” of the Department.
A. Attorney-Client Privilege
The Court agrees with the Department of Justice that the Olson Memo and its cover letter
are exempted from disclosure under Exemption 5 because both fall within the scope of the
attorney-client privilege. The Olson Memo is a classified memorandum purportedly containing
legal advice to the Attorney General regarding intelligence activities contemplated by the
National Security Agency (“NSA”). Def’s MSJ Ex. 1 (“First Colborn Decl.”) ¶ 12. According
to a declaration submitted by OLC Special Counsel Paul Colborn, it details legal advice given to
the Attorney General based on confidential information provided by the NSA and was intended
for and later transmitted to the NSA. Id. ¶ 16; Def.’s Opp’n Pls.’ Cross-Mot. Partial Summ. J.
Ex. A (“Second Colborn Decl.”) ¶¶ 2–3. This is a quintessential example of the sort of
document that falls within the attorney-client privilege: advice from an attorney (the head of
OLC) to his client (the Attorney General and, subsequently, the NSA) concerning the legal
aspects of the client’s contemplated actions and based on confidential information from the client
concerning those contemplated actions. See, e.g., In re Sealed Case, 737 F.2d 94, 101 (D.C. Cir.
1984) (holding that attorney-client privilege applied to conversation where the attorney
“rendered legal advice [to the Company], based, at least in part, on Company confidential
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information previously disclosed to him”). It thus lands squarely in the heartland of Exemption
5.
The Times advances two to the contrary. First, it contends that the Olson Memo does not
contain confidential client information because the Attorney General, not the NSA, is OLC’s
client for purposes of the memo. As a result, the argument goes, OLC’s legal advice to the
Attorney General was based on information provided by a third party (the NSA) rather than a
client (the Attorney General), and it thus falls outside the scope of the attorney-client privilege.
See, e.g., Tax Analysts, 117 F.3d at 619 (“To the extent that the legal conclusions in [the
document] are based upon information obtained from [third parties] . . . the attorney-client
privilege does not apply.”).
While the Times’ legal proposition may be correct in certain circumstances, its factual
premise—that the NSA was a third party rather than a client—is flawed. The Times makes
much of the fact that the first declaration submitted by OLC Special Counsel Colborn to justify
the withholding “opted for the ambiguous formulation ‘eventual transmission’” to an unspecified
executive branch agency rather than clearly stating that the legal advice was provided to the NSA
as OLC’s client. Pls.’ Mem. Opp’n Def.s MSJ & Supp. Pls.’ Cross-Mot. Summ. J. (“Pls.’ MSJ”)
11. But Colborn’s second declaration—submitted with the Justice Department’s reply—clarifies
that the executive branch agency he referred to in his first declaration was the NSA and that the
advice provided in the Olson Memo was ultimately transmitted to the NSA, as evidenced by a
letter from then-Attorney General William French Smith to then-Director of the NSA Lt. Gen.
Lincoln D. Faurer, which summarized the conclusions of the Olson Memo alongside a copy of
the memo. Second Colborn Decl. ¶¶ 2–3.
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The Times’ argument also somewhat mischaracterizes OLC’s position in the Department
of Justice. See Pls.’ MSJ at 11. OLC’s role is to “render[] informal opinions and legal advice to
the various agencies of the Government,” to “assist[] the Attorney General in the performance of
his functions as legal adviser to the President” and to “render[] opinions to the Attorney General
and to the heads of the various organizational units of the Department on questions of law arising
in the administration of the Department.” 28 C.F.R. § 0.25(a), (c); see also First Colborn Decl.
¶ 2 (“The principal function of the OLC is to assist the Attorney General in his role as legal
adviser . . . OLC provides advice and prepares opinions addressing a wide range of legal
questions involving the operations of the Executive Branch.”). In turn, the Attorney General’s
duties include “[f]urnish[ing] advice and opinions, formal and informal, on legal matters to the
President and the Cabinet and to the heads of the executive departments and agencies of the
Government.” 28 C.F.R. § 0.5(c). While some OLC opinions are publicly released, its advice to
the Attorney General or executive agencies is usually kept confidential. See First Colborn Decl.
¶ 3.
In other words, OLC helps the Attorney General provide legal advice to his client
agencies, much as one attorney in a law firm might help her colleague in the firm provide advice
to the firm’s client. Yet no one would contend that the firm’s client has somehow ceased being a
client and has instead become a third party if the attorney writes her colleague a memo with
advice regarding the firm client’s proposed actions. So too here. The agency is the client who
sought and ultimately received OLC’s legal advice regarding its proposed activities. And that
protection for the agency’s confidential communications to its attorney is not lost simply because
one attorney (the Attorney General) consults another (the Assistant Attorney General for OLC).
See Mead Data Center, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 361 n.24 (D.C. Cir. 1977)
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(“[T]he [attorney-client] privilege is not lost because an attorney consults other attorneys about
the subject matter of the communication.”).
The NSA’s client status clearly distinguishes this case from those the Times relies on,
which involve information received from a true third party and incorporated into the legal
advice. See, e.g., Tax Analysts, 117 F.3d at 619 (memorandum from IRS attorney to IRS
officials contained information from taxpayers); Schlefer, 702 F.2d at 245 (communication from
agency counsel to agency official contained information from outsider seeking an advisory ruling
from the agency). Here, by contrast, the NSA is a client of the Department of Justice—which
encompasses the Attorney General and OLC. See Second Colborn Decl. ¶¶ 2–3 (Olson Memo
was based on information provided by the NSA as part of its solicitation of legal advice intended
to be conveyed to the NSA). As such, advice provided by OLC to the Attorney General fits
squarely within the attorney-client privilege.
Furthermore, adopting the Times’ position would undermine the purposes of the attorney-
client privilege. The privilege serves to “to encourage full and frank communication between
attorneys and their clients and thereby promote broader public interests in the observance of law
and administration of justice.” Upjohn, 449 U.S. at 389. Without a guarantee of confidentiality,
executive branch agencies, like all legal clients, would hesitate to share private details about
planned agency actions with the Attorney General when seeking legal advice. See First Colborn
Decl. ¶¶ 3–4. And without such confidentiality, executive branch agencies might choose to
forgo seeking legal advice altogether and thereby risk public disclosure of private, confidential
details about their activities. This would undermine the public interests that buttress the
attorney-client privilege, since executive agencies seeking out legal advice concerning their
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planned activities helps ensure their actions conform to the law and the Constitution. See id. For
these reasons, too, the Olson Memo falls within the scope of the privilege.
Next, the Times argues that any attorney-client privilege has been extinguished because
the Olson Memo has not been kept confidential. The Times is correct that the privilege can be
waived if the underlying confidential information or advice is shared. See, e.g., Mead Data, 566
F.2d at 253 (“If the information has been or is later shared with third parties, the privilege does
not apply.”). However, the Times points to no evidence establishing that the Olson Memo has
been circulated to third parties or even widely circulated within the Justice Department. In fact,
the record of this case suggests the opposite. For one, the Olson Memo is classified. See First
Colborn Decl. ¶ 18. Classified materials must be kept confidential and can only be accessed by
individuals with the requisite security clearance, who have signed a nondisclosure agreement,
and who have a need to know the information. See Exec. Order No. 13,526, 75 Fed. Reg. 707,
720 (Dec. 29, 2009). Given its classified status, it seems unlikely the Olson Memo has been
widely or indiscriminately circulated. Cf. Coastal States, 617 F.2d at 863–64 (holding attorney-
client privilege had been waived where the Department was unable “to establish that some
attempt had been made to limit disclosure of the documents” within the agency).
As evidence that the Olson Memo has not been kept confidential, the Times points to
another purportedly classified memo to the Attorney General—a 2007 memo from then-
Assistant Attorney for the National Security Division Kenneth Wainstein (the “Wainstein
Memo”)—and to the declaration of OLC Special Counsel Colborn filed with the Department’s
motion for summary judgment, both of which reference the Olson Memo. But both documents
simply indicate that some attorneys within the Department of Justice—indeed, within OLC—had
access to the Olson Memo, not that the memo has been widely disseminated within the
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Department to attorneys not representing the NSA, let alone beyond the Department, in such a
manner as to waive privilege. Cf. FTC v. GlaxoSmithKline, 294 F.3d 141, 147 (D.C. Cir. 2002)
(holding that, for an institutional client, there is no waiver of privilege where the documents are
shared within the organization with those who “needed to provide input to the legal department
and/or receive the legal advice and strategies formulated by counsel” (citation omitted)).
Moreover, the authors of both documents had reasons related to providing legal advice to
the NSA to access the Olson Memo. Colborn needed to know about the Olson Memo and its
contents in order to support the Justice Department’s assertion of the attorney-client privilege on
behalf of the NSA in this case. Similarly, the Wainstein Memo refers to the Olson Memo in the
context of providing additional legal advice to the NSA. See Pls.’ MSJ Ex. 1 (“Wainstein
Memo”), at 1 (“The Secretary of Defense seeks your approval of proposed Department of
Defense Supplemental Procedures Governing Communications Metadata Analysis.”). 1 Neither
of these documents evince the sort of sharing of confidential information with unaffiliated third
parties that destroys the attorney-client privilege.
Other evidence in the record further undercuts the Times’ argument. For instance, the
Times filed transcript excerpts from the confirmation hearing of former Attorney General Loretta
Lynch in which Senator Dianne Feinstein refers to the Olson Memo and requests that a copy be
made available to the members of the Senate Intelligence and Judiciary Committees. Pls.’ MSJ
Ex. 2 (“Lynch Testimony”), at 2–3. The fact that members of the relevant Senate Committees
did not have copies of the memo in 2015 cuts against the conclusion that the Olson Memo has
been disseminated to third parties. Additionally, Colborn attested that, to his knowledge, the
1
The Government has neither confirmed nor denied the authenticity of the copy of the
Wainstein Memo offered by the Times. Def.’s Opp’n Pls.’ Cross-Mot. Partial Summ. J. 10 n.3.
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Olson Memo has “not been previously disclosed publicly” and he is “not aware of any public
statements that could constitute waiver of the privilege applicable to the document.” First
Colborn Decl. ¶ 22. Consequently, the record does not indicate that the attorney-client privilege
for the Olson Memo has been waived and thus it is still within the scope of Exemption 5.
B. Working Law
Alternatively, the Times maintains that even if the Olson Memo is covered by the
attorney-client privilege, it is not covered by Exemption 5 because it has become “working law.”
Pl.’s MSJ 17. The D.C. Circuit has held, in the context of the deliberative process privilege
within Exemption 5, that FOIA does not shield documents that discuss a policy that is “adopted,
formally or informally, as the agency position on an issue or is used by the agency in its dealings
with the public.” Coastal States, 617 F.2d at 866. This “working law” exception ensures that
agencies cannot develop “a body of ‘secret law,’” that the agency relies upon “to discharge . . .
its regulatory duties and [to] deal with the public.’” Schlefer, 702 F.2d at 244 (quoting Coastal
States, 617 F.2d at 867). 2
Yet the D.C. Circuit has narrowly limited the circumstances under which OLC memos
can become an agency’s working law. See generally Elec. Frontier Found. v. U.S. Dep’t of
Justice, 739 F.3d 1 (D.C. Cir. 2014). In Electronic Frontier Foundation, the Circuit rejected the
contention that an OLC memo to the FBI had become the FBI’s “working law” and thus was not
encompassed by Exemption 5. Id. at 3. It reasoned that because OLC could not “speak with
2
The Court is aware of no case that has ever applied the “working law” exception to
abrogate the attorney-client privilege rather than the deliberative process privilege; the D.C.
Circuit appears to have solely applied the exception to documents falling under the deliberative
process privilege. However, the Court need not resolve the question of whether the exception
applies to documents covered by the attorney-client privilege because neither party contests its
applicability here.
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authority” on the policy of the FBI, “the OLC Opinion could not be the ‘working law’ of the FBI
unless the FBI ‘adopted’ what OLC offered.” Id. at 9–10. Because “the FBI never itself publicly
invoked or relied upon the contents of the OLC Opinion,” the court concluded that the OLC
memo was not the FBI’s working law. Id. at 11.
The same is true here. The Olson Memo, like that in Electronic Frontier Foundation,
“amount[ed] to advice offered by OLC for consideration by” the Attorney General and the NSA.
Id. at 8. As with the FBI, OLC “is not authorized to make decisions about” the NSA’s activities
or the Attorney General’s approval thereof. Id. at 9. And like the FBI, the Attorney General and
NSA were “free to decline to adopt” the reasoning or conclusions of the OLC opinion. Id. at 10.
Therefore, absent additional evidence that the Attorney General or NSA has affirmatively
adopted the Olson Memo as their own policy and reasoning, the Olson Memo does not constitute
working law.
The Times offers two pieces of evidence it contends show adoption, but neither is
sufficient to do so. First, it argues that former Attorney General Lynch acknowledged the Olson
Memo’s adoption by the Department at her confirmation hearing. But in the hearing transcript it
is Senator Feinstein, not Attorney General Lynch, who refers to the Olson Memo as “seminal.”
Lynch Testimony at 3. Lynch—prior to even being confirmed as Attorney General—simply
stated that “[the memos] represent a discussion, an analysis of legal issues” and offered to “find a
way to provide the information that [the committee] need[s].” Id. at 4. Much like in Electronic
Frontier Foundation, Lynch’s testimony concerning the Olson Memo was made “in response to
inquiries” from Congress and she did not “affirmatively rais[e] [the memo] to justify” the
Attorney General’s or NSA’s actions. 739 F.3d at 11. Her testimony therefore does not amount
to an adoption of the positions taken in the memo.
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Second, the Times again points to the 2007 Wainstein Memo. Even setting aside the
authentication issues noted earlier, it too fails to establish adoption, as a decision from the
Southern District of New York recently held. See American Civil Liberties Union v. NSA, No.
13-cv-09198, 2017 WL 1155910, at *11 (S.D.N.Y. Mar. 27, 2017). The Wainstein Memo refers
to the Olson Memo once, in a footnote, where it cites the memo alongside a Sixth Circuit case
for a general principle of law—that the Government’s analysis of intelligence legally within its
possession is likely not a search or seizure and thus does not fall within the Fourth Amendment.
Wainstein Memo at 4 n.4. It then states that it will, as the Olson Memo did, assume the Fourth
Amendment still applies out of an abundance of caution. Id. But neither of these two citations
show that the Attorney General or the NSA has “publicly invoked the reasoning of the OLC
memorandum” to defend any agency policy or action. Elec. Frontier Found., 739 F.3d at 11
(emphases added). To the extent the Wainstein Memo is authentic, it, too, is classified, not
public, and nowhere in it does the Attorney General or NSA defend any action or policy using
the Olson Memo. Rather, there is no evidence that the Attorney General or NSA has ever
publicly invoked the Olson Memo to defend any action or policy. See First Colborn Decl.
¶¶ 21–22. The record is thus insufficient to show that the Attorney General or NSA has adopted
the OLC memo. It is therefore not the Department’s or the NSA’s working law.
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IV. Conclusion
For the foregoing reasons, the Court will grant the Defendant’s Motion for Summary
Judgment and will deny Plaintiffs’ Cross-Motion for Partial Summary Judgment. A separate
order accompanies this Memorandum Opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: October 20, 2017
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