Am. Civil Liberties Union v. Nat'l Sec. Agency

17‐3399‐cv
Am. Civil Liberties Union v. Nat’l Sec. Agency
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2018
No. 17‐3399‐cv
AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION,
Plaintiffs‐Appellants,
v.
NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY,
UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES
DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF STATE,
Defendants‐Appellees.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: DECEMBER 4, 2018
DECIDED: MAY 30, 2019
Before: CABRANES, LIVINGSTON, Circuit Judges, and SCHOFIELD, District
Judge.*
Plaintiffs‐Appellants, the American Civil Liberties Union and
the American Civil Liberties Union Foundation (jointly, “the ACLU”),
requested documents concerning the legal authority for certain
national security programs from Defendants‐Appellees, several
federal agencies (jointly, “the Government”). After exhausting
administrative remedies, the ACLU filed suit under the Freedom of
Information Act (“FOIA”), requesting that the District Court compel
disclosure. To defend the decision to withhold several documents, the
Government invoked specific statutory exemptions, including FOIA
Exemption 5, which protects from disclosure attorney‐client and
deliberative communications. The District Court (Kimba M. Wood,
Judge) granted summary judgment in the Government’s favor, holding
that the agencies properly withheld the documents under FOIA. On
appeal, the ACLU argues that Exemption 5 does not apply because the
Government adopted or incorporated the disputed documents when
it “relied on” the legal advice contained therein. We conclude that
under Exemption 5, an agency (1) “adopts” a previously privileged
document where the agency’s statements or behavior indicate that the
agency treats the document as binding authority, and (2)
“incorporates” a previously privileged document “by reference”
Judge Lorna G. Schofield, of the United States District Court for the
*
Southern District of New York, sitting by designation.
2
where a formal agency opinion or decision explicitly relies on that
document and its reasoning. We find no such adoption or
incorporation to have occurred in this case. Accordingly, we affirm the
judgment of the District Court.
_______
ASHLEY GORSKI (Patrick Toomey, American
Civil Liberties Union Foundation, New York,
NY; Hannah Bloch‐Wehba, David Schulz,
Sebastian Brady, Diana Lee, Paulina Perlin,
Media Freedom and Information Access
Clinic, Abrams Institute, Yale Law School,
New Haven, CT, on the brief), American Civil
Liberties Union Foundation, New York, NY,
for Plaintiffs‐Appellants.
JEAN‐DAVID BARNEA (David S. Jones and
Benjamin H. Torrance, Assistant United
States Attorneys, on the brief), Assistant
United States Attorney, for Geoffrey S.
Berman, United States Attorney for the
Southern District of New York, New York,
NY, for Defendants‐Appellees.
________
3
JOSÉ A. CABRANES, Circuit Judge:
The American people have the right to know the laws and
policies that bind our government and its agencies. At the same time,
government officials must be able to receive confidential legal advice
and deliberate frankly. Sometimes, these principles appear
contradictory. We can, however, accommodate both by carefully
defining the boundary between law, on the one hand, and advice, on
the other. Put simply, law binds. Accordingly, when inquiring whether
a document constitutes an agency’s “effective law and policy” or
whether it merely contains legal or policy advice, courts should inquire
whether officials regarded the document as binding. This inquiry
allows courts to distinguish between advice, which may be kept secret,
and a government’s effective law and policy, to which a strong
presumption of public access attaches.
Plaintiffs‐Appellants, the American Civil Liberties Union and
the American Civil Liberties Union Foundation (jointly, “the ACLU”),
requested documents concerning the legal authority for certain
national security programs from Defendants‐Appellees, several
federal agencies (jointly, “the Government”). After exhausting
administrative remedies, the ACLU filed suit under the Freedom of
Information Act (“FOIA”), requesting that the District Court compel
disclosure. To defend the withholdings, the Government invoked
specific statutory exemptions, including FOIA Exemption 5, which
protects from disclosure attorney‐client and deliberative
communications. The District Court (Kimba M. Wood, Judge) granted
summary judgment in the Government’s favor, holding that the
4
agencies properly withheld the documents under FOIA. On appeal,
the ACLU argues that Exemption 5 does not apply because the
Government adopted or incorporated the disputed documents when
it “relied on” the legal advice contained therein. We conclude that
under Exemption 5, an agency (1) “adopts” a previously privileged
document where the agency’s statements or behavior indicate that the
agency treats the document as binding authority, and (2)
“incorporates” a previously privileged document “by reference”
where a formal agency opinion or decision explicitly relies on that
document and its reasoning. We find no such adoption or
incorporation to have occurred in this case. Accordingly, we affirm the
judgment of the District Court.
I. BACKGROUND
A. Executive Order 12,333 and the ACLU’s FOIA Request
On December 4, 1981, President Reagan issued Executive Order
12,333 (“EO 12,333”), entitled “United States Intelligence Activities.”1
The order sought to regulate the “effective conduct of United States
intelligence activities” and “protect[ ] . . . constitutional rights.”2
Amended numerous times over the last four decades, EO 12,333 has
long served as a “principal Executive Branch authority for foreign
intelligence activities.”3 Today, it remains “one of the primary
1 Exec. Order No. 12,333, 46 Fed. Reg. 59,941 (Dec. 4, 1981).
2 Id.
3President’s Review Grp. on Intelligence and Commc’ns Techs., Liberty
and Security in a Changing World: Report and Recommendations of the Presidentʹs
5
authorities that allow agencies of the intelligence community . . . to
gather foreign intelligence.”4
In the wake of the terrorist attacks of September 11, 2001 and the
subsequent expansion of intelligence operations, EO 12,333 became
the subject of renewed public attention. On May 13, 2013, the ACLU
submitted requests to several federal agencies “seeking the release of
records that describe the government’s understanding of its
surveillance authority under [EO] 12,333” and “the rules that regulate
the government’s acquisition, retention, use, and dissemination of the
communications of Americans swept up in that surveillance.”5 In
requesting the documents, the ACLU invoked FOIA, a federal statute
enacted in 1966 that facilitates the public release of most government
records.6
The agencies resisted disclosing the requested records. On
December 30, 2013, after exhausting administrative remedies, the
Review Grp. on Intelligence and Commcʹns Techs 69 (Dec. 12, 2013),
https://obamawhitehouse.archives.gov/sites/default/files/docs/2013‐12‐
12_rg_final_report.pdf.
Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 09198
4
(KMW)(JCF), 2017 WL 1155910, at *1 (S.D.N.Y. Mar. 27, 2017) (“ACLU I”).
5 Joint Appendix (“J.A.”) 24. The ACLU submitted the requests to the
Central Intelligence Agency, the Defense Intelligence Agency, the Federal Bureau
of Investigation, the National Security Agency, the United States Department of
State, the National Security Division, and the Office of Legal Counsel. See ACLU I,
2017 WL 1155910, at *2.
6See 5 U.S.C. § 552; see also N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132,
136 (1975).
6
ACLU filed suit under FOIA’s cause‐of‐action provision, seeking to
compel the release of the documents.7
During the litigation, the Government voluntarily produced
hundreds of pages of responsive material. Nevertheless, the
Government continued to withhold certain documents, claiming they
were exempt from disclosure under specific statutory exemptions.
In early 2016, the parties cross‐moved for summary judgment
regarding the lawfulness of the Government’s decision to withhold the
documents. On March 27, 2017, the District Court denied the ACLU’s
motion in full, and granted the Government’s motion in part,
approving the Government’s decision to withhold most documents,
but requiring more detailed justifications for several remaining
documents. The District Court then reviewed supplementary briefing
from both sides on renewed cross‐motions for summary judgment
with respect to the remaining documents. On August 17, 2017, the
District Court granted the Government’s renewed motion for
7 Under FOIA, requesting parties may petition a district court “to enjoin
the agency from withholding agency records and to order the production of any
agency records improperly withheld from the complainant.” 5 U.S.C.
§ 552(a)(4)(B). District courts must review an agency’s decision to withhold
records de novo to ensure that the decision complies with FOIA’s substantive
requirements. Id. The agency, meanwhile, bears the burden of “sustain[ing] its
action”—i.e., the decision to withhold. Id.
7
summary judgment and denied the ACLU’s cross‐motion.8 Judgment
was entered on August 22, 2017.
B. The Contested Documents
On appeal, the ACLU contests the District Court’s rulings with
respect to seven documents. 9
OLC 10. The first document, “OLC 10,” is a 108‐page
memorandum, dated May 6, 2004, from the Assistant Attorney
General for the Office of Legal Counsel (“OLC”), Jack L. Goldsmith,
III, to Attorney General Alberto Gonzales. The general functions of the
OLC include “assisting the Attorney General in the performance of his
functions as legal adviser to the President” in part by “advising as to
the [ ] form and legality” of Executive orders and actions.10 The OLC
memorandum, titled “Re: Review of the Legality of the STELLAR
WIND Program,” examines a “highly classified and strictly
8 See Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 9198 (KMW)
(JCF), 2017 WL 6387731, at *1 (S.D.N.Y. Aug. 17, 2017) (“ACLU II”).
9 Initially, the ACLU also challenged the decision to withhold an eighth
document, “OLC 8.” While this appeal was pending, however, the Government
reprocessed and released most of that document. Accordingly, the ACLU is “no
longer seeking disclosure of that memorandum.” Reply Br. Appellants 3 n.1.
10 28 C.F.R. § 0.25; see also Citizens for Responsibility & Ethics in Washington
v. U.S. Dep’t of Justice, 846 F.3d 1235, 1238 (D.C. Cir. 2017) (discussing the role of
OLC generally); Morrison v. Olson, 487 U.S. 654, 700 (1988) (Scalia, J., dissenting)
(explaining that the role of Assistant Attorney General for OLC is “a post that has
traditionally had responsibility for providing legal advice to the President (subject
to approval of the Attorney General)”). Justice Scalia, like Chief Justice Rehnquist
before him, served in this role.
8
compartmented program of electronic surveillance” authorized by
President George W. Bush in response to the attacks of September 11,
2001.11 The memorandum reviews the program’s history and analyzes
its legality under EO 12,333, applicable statutes, and the United States
Constitution.12
The District Court concluded that OLC 10 is exempt from
disclosure under FOIA Exemption 5 because the document is both an
attorney‐client communication and a deliberative, pre‐decisional
government memorandum.
Intelligence Program Documents. The remaining six documents13
each contains legal advice from Department of Justice attorneys
concerning “[National Security Agency (“NSA”)] programs or other
intelligence activities.”14
According to a sworn declaration from a senior NSA official,
five of these six documents (NSD 12, 13, 14, and 33, and NSA 11)
concern “particular intelligence sources, and related methods used to
11 J.A. 276‐77.
12 See id. at 276‐351.
13 The documents are identified individually as NSA 11 and NSD 12, 13,
14, 33, and 49. Collectively, we refer to them as “the intelligence program
documents.”
14 ACLU I, 2017 WL 1155910, at *14 (NSA 11); id. at *12 (NSD 12, 13, 14, 33,
and 49).
9
collect and process foreign communications.”15 The disclosure of these
documents “would [therefore] demonstrate the capabilities and
limitations” of the United States’ signals intelligence systems.16
Similarly, disclosure of the sixth document (NSD 49) would “tend[ ] to
identify the targets of intelligence‐gathering efforts, reveal the specific
collection techniques and methods employed, and contain details
concerning the locations and timing of that collection.”17
The District Court held that FOIA exempts these six intelligence
program documents from disclosure because they contain classified
and sensitive national security information.18
C. The Government’s Public Statements
It is undisputed that the contested documents have never been
released in unredacted form. The Government has, however,
discussed similar subject matter in several public statements. A central
issue on appeal is whether these public statements—delivered over a
period of 13 years—undermine the Government’s claims of attorney‐
client and deliberative process privilege with respect to OLC 10.
15J.A. 154 ¶ 38 (Declaration of David J. Sherman, Associate Director for
Policy and Records).
16 Id. at 154 ¶ 39.
17Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13 Civ. 9198 (KMW)
(JCF), Dkt. No. 60 at 15 ¶ 16 (Declaration of Antoinette B. Shiner, Information
Review Officer for the Litigation Information Review Office, CIA).
18 ACLU II, 2017 WL 6387731, at *6.
10
First, in a December 19, 2005 White House press briefing,
Attorney General Gonzales discussed the “legal underpinnings” of the
Stellar Wind program.19 In that briefing, Gonzales explained that the
program was authorized by Congress’s 2001 Authorization for the Use
of Military Force (“AUMF”), and was in any event a legal exercise of
the President’s inherent constitutional authority as Commander‐in‐
Chief. Gonzales did not mention OLC opinions in his prepared
remarks, and when asked about the possibility of releasing an OLC
opinion, responded, “Iʹm not confirming the existence of opinions or
the non‐existence of opinions. I’ve offered up today our legal analysis
of the authorities of this President.”20
Second, on January 19, 2006, the Department of Justice
transmitted to Congress a “White Paper” entitled “Legal Authorities
Supporting the Activities of the National Security Agency Described
by the President.”21 According to an accompanying letter, the
document was “prepared by the Department of Justice to provide a
detailed analysis of the legal basis” for certain NSA activities initiated
19 Office of the Press Sec’y, Press Briefing by Attorney General Alberto
Gonzales and General Michael Hayden, Principal Deputy Director for National
Intelligence, WHITE HOUSE, (Dec. 19, 2005), https://georgewbush‐
whitehouse.archives.gov/news/releases/2005/12/20051219‐1.html (“2005 Press
Briefing”).
20 Id.
21 Legal Authorities Supporting the Activities of the National Security Agency
Described by the President, DEP’T OF JUST. (Jan. 19, 2006),
https://www.justice.gov/sites/default/files/olc/opinions/attachments/2015/05/29/op
‐olc‐v030‐p0001.pdf (“White Paper”).
11
in the aftermath of the September 11, 2001 attacks.22 The White Paper
briefly describes NSA surveillance activities and discusses their
legality in light of the ongoing threat from Al‐Qaeda and pursuant to
statutory authorities and the United States Constitution. The paper
contains “[m]uch of the legal reasoning” first articulated in OLC 10.23
Third, on February 6, 2006, Attorney General Gonzales stated,
during a hearing before the Senate Judiciary Committee, that he
“agreed with the [Office of Legal Counsel’s] legal analysis” concerning
the Stellar Wind program.24
Fourth, on July 10, 2009, the Inspectors General of five agencies
completed and submitted a classified 747‐page comprehensive report
concerning the Stellar Wind program (“the Joint IG Report”) to several
committees of Congress.25 At the same time, the Inspectors General
22 Id. at 1.
23 Offices of Inspectors General, Report on the President’s Surveillance
Program, Vol. 1 at 49 (July 10, 2009), https://oig.justice.gov/reports/2015/PSP‐09‐18‐
15‐full.pdf (“Joint IG Report”).
24 Wartime Executive Power and the National Security Agency’s Surveillance
Authority: Hearings Before the S. Comm. on the Judiciary, 109th Cong. 55 (2006),
available at 2006 WL 270364 (“2006 Hearing”).
25 The report was prepared by the Inspectors General of the Department of
Justice, Department of Defense, Office of the Director of National Intelligence,
CIA, and NSA. It was delivered to the Senate Select Committee on Intelligence,
the Senate Committee on the Judiciary, the House Permanent Select Committee
on Intelligence, and the House Committee on the Judiciary. See Joint IG Report
note 23, ante, at iii.
12
also publicly released a shorter, unclassified version of the report;26 the
Government did not declassify and release a redacted version of the
full report until April 2015.27 The full report discusses the drafting of
OLC 10 under the heading “A New Legal Basis for the Program Is
Adopted.”28
Fifth, in February 2016, the Government made public a
previously classified letter (“OLC 9”) from Deputy Assistant Attorney
General John C. Yoo to Judge Colleen Kollar‐Kotelly, then Presiding
Judge of the Foreign Intelligence Surveillance Court. 29 The letter,
dated May 17, 2002, “discusses the President’s power to deploy
expanded electronic surveillance techniques” and “outlines the legal
justifications for such surveillance.”30
Finally, while this appeal was pending, the Government
reprocessed and released a less‐redacted version of an additional
26 See Offices of Inspectors General, Unclassified Report on the President’s
Surveillance Program (July 10, 2009), available at
https://oig.justice.gov/special/s0907.pdf.
27IC on the Record Database: Results, OFF. OF THE DIRECTOR OF NAT’L
INTELLIGENCE, https://www.intelligence.gov/ic‐on‐the‐record‐database/advanced‐
search?keyword=&date=9&sdate=03%2F31%2F2015&edate=05%2F01%2F2015&t
opic=&catid=#results (indicating April 25, 2015 as the date of publication); see also
Charlie Savage, Government Releases Once‐Secret Report on Post‐9/11 Surveillance, N.
Y. TIMES (April 24, 2015) available at
https://www.nytimes.com/interactive/2015/04/25/us/25stellarwind‐ig‐report.html.
28 See Joint IG Report, note 23, ante, at 37‐39.
29 J.A. 253‐54, 257.
30 See id. at 393.
13
document, “OLC 8.” This document, a November 2, 2001
memorandum written by Deputy Assistant Attorney General Yoo,
explains, inter alia, “legal issues pertaining to surveillance under E.O
12333.”31
II. DISCUSSION
We review a district court’s grant of summary judgment in
FOIA litigation de novo.32
In conducting our review, we first clarify the scope of FOIA and
its exemptions, as well as the concepts of “working law,” “adoption”
and “incorporation.” Applying these principles, we affirm the
conclusion of the District Court that OLC 10 is exempt from disclosure
under FOIA Exemption 5. We similarly affirm its conclusion that the
six intelligence program documents are exempt from disclosure under
FOIA Exemptions 1 and 3. Finally, we reject the ACLU’s request that
we “order the re‐processing of the documents,” that is, compel the
agencies to once again review the contested documents to ensure that
only privileged and undisclosed, classified information is redacted.33
31 Id. at 259.
32See, e.g., New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 112 (2d
Cir. 2014) (“N.Y. Times I”); see also Halpern v. F.B.I., 181 F.3d 279, 287 (2d Cir. 1999)
(declining to “depart from a pure de novo standard”).
33 Br. Appellants 47.
14
A. FOIA and its Exemptions
Passed in 1966, FOIA was intended to “permit access to official
information long shielded unnecessarily from public view.”34 FOIA
thus establishes a default rule in favor of Government disclosure,
providing that an “agency, upon any request for records which
(i) reasonably describes such records and (ii) is made in accordance
with published rules . . . shall make the records promptly available to
any person.”35 As the Supreme Court has explained, “virtually every
document generated by an agency is available to the public in one form
or another, unless it falls within one of the [FOIA]’s nine
exemptions.”36 In accordance with FOIAʹs purposes, the statutory
exemptions are “narrowly construed.”37
Our case concerns three of these exemptions: Exemption 1
exempts records that have been properly classified “in the interest of
national defense or foreign policy.”38 Exemption 3 exempts records
that a statute other than FOIA prohibits from disclosure.39 Finally,
34 Envtl. Prot. Agency v. Mink, 410 U.S. 73, 80 (1973).
35 5 U.S.C. § 552(a)(3)(A).
36 Sears, 421 U.S. at 136.
37F.B.I. v. Abramson, 456 U.S. 615, 630 (1982); see also Natʹl Council of La Raza
v. Depʹt of Justice, 411 F.3d 350, 356 (2d Cir. 2005).
38 5 U.S.C. § 552(b)(1)(A).
39 Id. § 552(b)(3).
15
Exemption 5 exempts records that would be privileged in litigation.40
The District Court upheld the redaction of OLC 10 under Exemption
5, and the decision to withhold the intelligence program documents
under Exemptions 1 and 3. We review each holding in turn.
B. OLC 10 and FOIA Exemption 5
Exemption 5 exempts from FOIA’s disclosure requirements
“inter‐agency or intra‐agency memorandums [sic] or letters that
would not be available by law to a party other than an agency in
litigation with the agency.”41 This exemption “incorporate[s] into the
FOIA all the normal civil discovery privileges,”42 including
“traditional common law privileges against disclosure” such as “the
attorney‐client and deliberative process privileges.”43 Here, the
District Court upheld the redaction of OLC 10 pursuant to both
privileges.44 We agree.
1. The Attorney‐Client Privilege
As we have explained in prior decisions, “[t]he attorney‐client
privilege protects confidential communications between client and
counsel made for the purpose of obtaining or providing legal
40 Id. § 552(b)(5).
41 Id.
42 Hopkins v. U.S. Dep’t of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991).
43 N.Y. Times I, 756 F.3d at 104.
44 ACLU I, 2017 WL 1155910, at *10.
16
assistance.”45 The privilege functions to “encourage attorneys and
their clients to communicate fully and frankly and thereby to promote
broader public interests in the observance of law and administration
of justice.”46
In the context of legal advice to government officials, “the
privilege furthers a culture in which consultation with government
lawyers is accepted as a normal, desirable, and even indispensable
part of conducting public business. Abrogating the privilege
undermines that culture and thereby impairs the public interest.”47
The public interest in ensuring that government officials receive sound
legal advice is at its apex when the programs about which advice is
sought are secret and unlikely to be subject to litigation. In such cases,
the frank exchange between government officials and their attorneys
serves as a crucial—and maybe the only—safeguard in ensuring the
legality of government action.
The scope of the privilege follows directly from these purposes.
The privilege protects “communications (1) between a client and his
or her attorney (2) that are intended to be, and in fact were, kept
45 In re Cnty. of Erie, 473 F.3d 413, 418 (2d Cir. 2007).
46 Id. (internal quotation marks omitted); see also Upjohn Co. v. United
States, 449 U.S. 383, 389 (1981) (explaining that one purpose of the privilege is “to
encourage clients to make full disclosure to their attorneys” (internal quotation
marks omitted)).
47 In re Grand Jury Investigation, 399 F.3d 527, 534 (2d Cir. 2005).
17
confidential (3) for the purpose of obtaining or providing legal
advice.”48
OLC 10 meets these requirements easily. First, as reflected in the
index the Government provided to the ACLU, OLC 10 was prepared
by an OLC attorney (Assistant Attorney General Goldsmith) for an
Executive Branch client (the Attorney General, and eventually, the
President).49 The document is thus a communication between an
attorney and a client.
Second, the memorandum was written with the understanding
that “OLC legal advice is generally kept confidential,”50 it was
“communicated in confidence,”51 and “none of [its redacted portions]
have been previously publicly disclosed.”52 The redacted sections of
OLC 10 were thus intended to be, and actually were, kept confidential.
And third, by its own description, OLC 10 is one in a series of
memoranda which “advised” the Attorney General that certain
presidential actions “would satisfy relevant constitutional
standards.”53 Moreover, as we have previously explained, OLC
48 United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011); see also Brennan
Ctr. for Justice v. U.S. Depʹt of Justice, 697 F.3d 184, 207 (2d Cir. 2012).
49 J.A. 259, 276‐77; see also note 10, ante (citing Morrison, 487 U.S. at 700).
50 Id. at 244 ¶ 3 (Declaration of Paul P. Colborn, Special Counsel, OLC).
51 Id. at 250 ¶ 19.
52 Id. at 256 ¶ 34.
53 Id. at 284.
18
memoranda “provide, in their specific contexts, legal advice as to what
a department or agency is permitted to do.”54 The communication thus
provided legal assistance.55
The ACLU does not seriously challenge this analysis. Instead, it
argues that while OLC 10 was initially protected by the attorney‐client
privilege, the Government subsequently waived the privilege through
“official acknowledgments” and “public reliance.”56
The ACLU’s assertion of a doctrine of waiver by “official
acknowledgment” reflects a basic misunderstanding of the attorney‐
client privilege. This privilege protects confidential communications
between an attorney and a client. The “official acknowledgment”
doctrine, however, precludes the Government from withholding
54New York Times Co. v. U.S. Depʹt of Justice, 806 F.3d 682, 687 (2d Cir. 2015)
(“N.Y. Times II”) (internal quotation marks and emphasis omitted).
55 That the Attorney General might have transmitted OLC 10 to the White
House does not change our analysis. As the OLC declarant explained, “[t]he
principal function of OLC is to assist the Attorney General in her role as legal
adviser to the President of the United States and to departments and agencies of
the Executive Branch.” J.A. 244 ¶ 2; see also 28 C.F.R. § 0.25 (OLC advises as to the
“form and legality” of proposed Executive orders, proclamations and regulations
“prior to their transmission to the President.”). Accordingly, if OLC 10 was
transmitted to the White House, then this transmission is also a communication
between an attorney (the Attorney General) and a client (the White House);
intended to be and kept confidential; and offered for the purpose of advising the
President of the law governing a proposed action. Id. at 277, 284.
56 Br. Appellants 34‐35.
19
information on the basis that it is classified after the Government has
disclosed substantially the same information.57
But such informational disclosures have no effect on whether a
communication is protected by the attorney‐client privilege.58 The
attorney‐client privilege “protects communications rather than
information.”59 We have therefore explained that the attorney‐client
privilege is not “lost by the mere fact that the information
communicated [between attorney and client] is otherwise available to
the public.”60 The concept of “official acknowledgment” is thus
irrelevant to the Exemption 5 inquiry and cannot provide an
independent basis for overcoming Exemption 5.61
See N.Y. Times I, 756 F.3d at 119‐20. The principle underlying the “official
57
acknowledgment” doctrine is intuitive: once information is no longer secret, it
cannot be protected simply “because it is secret.”
58Upjohn, 449 U.S. at 395 (explaining that the attorney‐client privilege
“protects disclosure of communications; it does not protect disclosure of the
underlying facts”).
In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032,
59
1037 (2d Cir. 1984).
60 United States v. Cunningham, 672 F.2d 1064, 1073 n.8 (2d Cir. 1982); see
also In re Grand Jury Subpoenas Dated Oct. 22, 1991, and Nov. 1, 1991, 959 F.2d 1158,
1165 (2d Cir. 1992) (discussing generally the difference between information‐
based and communication‐based privileges).
This concept is instead suitable for the Exemptions 1 and 3 inquiries,
61
where the Government seeks to withhold documents on the ground that they
contain classified information. See, e.g., N. Y. Times I, 756 F.3d at 113, 120 (outlining
the “three‐part test for ‘official disclosure,’ relevant to Exemption 1”).
20
By contrast, there is precedent for the ACLU’s argument that the
Government’s “public reliance” on a document erodes its otherwise
privileged status. While we have not used the precise phrase “public
reliance,” we have indeed held that “the attorney‐client privilege may
not be invoked to protect a document adopted as, or incorporated by
reference into, an agency’s policy.”62
This rule—that an incorporated or adopted document is no
longer protected by privilege—mirrors the general “fairness doctrine”
that governs the implicit waiver of privilege during litigation.63 As we
have previously explained, “courts have found waiver by implication
when a client testifies concerning portions of the attorney‐client
communication . . . and when a client asserts reliance on an attorneyʹs
advice as an element of a claim or defense.”64 And so we have
consistently rejected parties’ attempts to withhold attorney‐client
communications from a litigation adversary while relying on the same
material to advance a claim in court.65 To put it simply, in court, a party
62 La Raza, 411 F.3d at 360.
63 See In re von Bulow, 828 F.2d 94, 101 (2d Cir. 1987); see also Brennan Ctr.,
697 F.3d at 208 (“A party’s reliance on an otherwise privileged communication to
assert a claim or defense is similar to the type of express adoption or
incorporation by reference that vitiates Exemption 5 protection”).
64Cnty. of Erie, 546 F.3d at 228 (quoting Sedco Int’l S.A. v. Cory, 683 F.2d
1201, 1206 (8th Cir.1982)) (internal brackets and ellipses omitted).
65John Doe Co. v. United States, 350 F.3d 299, 303 (2d Cir. 2003); see also
George A. Davidson & William H. Voth, Waiver of the Attorney‐Client Privilege, 64
OR. L. REV. 637, 646‐53 (1986).
21
may not wield a privileged communication as both a “shield and a
sword.”66
A similar principle applies when the Government “adopts” or
“incorporates” a previously privileged document as its effective law
and policy.67 Just as a litigating party may not offer a privileged
communication to invoke the law while maintaining the privilege, so
too the Government may not expressly adopt a privileged
communication as its effective law or policy while maintaining the
privilege. As we explain below, however, in this case the Government
has neither expressly “adopted” OLC 10, nor “incorporated [it] by
reference.”68
2. The Deliberative Process Privilege
In addition to the attorney‐client privilege, OLC 10 also meets
the requirements of the “deliberative process privilege.”
Like the attorney‐client privilege, the deliberative process
privilege ensures “frank discussion” and protects agencies from being
“forced to operate in a fishbowl.”69 But whereas the attorney‐client
privilege promotes legal compliance in particular, the deliberative
66 In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000).
See Brennan Ctr., 697 F.3d at 195 (holding that Exemption 5 does not
67
apply “when the contents have been adopted, formally or informally, as the
agency position on an issue”).
68 See Section II.3.b at 37‐40, post.
69 Mink, 410 U.S. at 87 (internal quotation marks omitted).
22
process privilege promotes reasoned policy‐making in general. As the
Supreme Court has explained, “the frank discussion of legal or policy
matters in writing might be inhibited if the discussion were made
public,” and “the decisions and policies formulated would be the
poorer as a result.”70 Accordingly, a document may be withheld
pursuant to this privilege if it is: “(1) predecisional, i.e., prepared in
order to assist an agency decisionmaker in arriving at his decision, and
(2) deliberative, i.e., actually . . . related to the process by which policies
are formulated.”71
We think it clear that OLC 10 meets these criteria as well. As we
have previously recognized, “OLC does not purport, and in fact lacks
authority, to make policy decisions. OLC’s legal advice and analysis
informs the decisionmaking of Executive Branch officials on matters
of policy, but OLC’s legal advice is not itself dispositive as to any
policy adopted.”72 Moreover, the unredacted portions of OLC 10 make
clear that OLC’s role in the Stellar Wind authorization process was
exclusively predecisional and deliberative. The document responds to
70 Sears, 421 U.S. at 150‐51 (internal quotation marks omitted). Although
Sears discusses an “executive privilege” rather than a “deliberative process
privilege,” we have held that “[t]he deliberative process privilege . . . is
encompassed within the executive privilege.” Grand Cent. Pʹship, Inc. v. Cuomo,
166 F.3d 473, 481 (2d Cir. 1999) (internal quotation marks omitted).
71 La Raza, 411 F.3d at 356 (internal quotation marks omitted).
72 Brennan Ctr., 697 F.3d at 203 (citing an OLC declaration); see also N.Y.
Times II, 806 F.3d at 687 (“OLC documents are not working law. At most, they
provide, in their specific contexts, legal advice as to what a department or agency
is permitted to do.” (internal quotation marks omitted)).
23
the Attorney General’s request that OLC undertake a “thorough
reexamination” of the legality of presidential directives concerning
Stellar Wind.73 As OLC 10 explains, the Attorney General would
consult OLC advice (such as OLC 10) in choosing whether to approve
the program “as to form and legality.”74 OLC 10 thus preceded and
directly related to the Attorney General’s approval decision.75
3. The Limits of Exemption 5
As we have previously explained, “[j]ust because a document
satisfies [the above] requirements, however, does not mean that the
deliberative process [or attorney‐client] privilege bars its disclosure.”76
The ACLU therefore relies on three doctrines (which it calls
“exceptions”) to argue that the Government must release additional
portions of OLC 10.77 The ACLU claims (1) that OLC 10 contains
“working law,”78 (2) that OLC 10 was “adopted,” or (3) that OLC 10
73 J.A. 277.
74 Id. at 284.
75Indeed, the Attorney General’s approval of the Stellar Wind program “as
to form and legality” was itself merely a predecisional and deliberative step
before the actual policy decision was made by the President—i.e., the decision to
reauthorize Stellar Wind. Id.
76 La Raza, 411 F.3d at 356.
77 Properly understood, these doctrines are not “exceptions” to Exemption
5 at all. Rather, they are tell‐tale indicators that, notwithstanding its appearance, a
document simply is not protected by the deliberative process and attorney‐client
privileges.
78 Br. Appellants 18‐23.
24
was “incorporated by reference” as agency policy.79 Although each of
these terms emerges from our caselaw, ACLU’s arguments reveal that
our prior decisions have not yet adequately defined these concepts and
the relationship between them. We therefore accept the parties’
invitation to clarify the contours of Exemption 5 and the doctrines that
define its limits.
a. Effective Law and Policy
The Supreme Court first provided clear guidance regarding the
limits of FOIA Exemption 5 in 1975 in N.L.R.B v. Sears, Roebuck & Co.80
Drawing a clear distinction between deliberative material and
documents that embody law and policy, the Supreme Court explained:
Exemption 5, properly construed, calls for disclosure of
all opinions and interpretations which embody the
agency’s effective law and policy, and the withholding of
all papers which reflect the agency’s group thinking in the
process of working out its policy and determining what
its law shall be.81
The logic of this dichotomy is straightforward. The deliberative
process privilege protects “communications received by the
decisionmaker on the subject of the decision prior to the time the
79 Id. at 23‐25.
80 421 U.S. 132 (1975).
81 Id. at 153 (internal quotation marks omitted).
25
decision is made” to ensure that the subsequent decision will be fully
informed.82 By contrast, there is little need to preserve the
confidentiality of discussions that take place after a decision has been
made and rendered as the agency’s “effective law and policy.”83
Although the conceptual distinction between pre‐decisional
advice and post‐decisional explanation is clear, these materials might
look quite similar in practice. For instance, a letter advising an agency’s
leader on how to interpret a statute could look identical to a letter
informing an agency subordinate about how the agency interprets a
statute.
In light of the potential for conflation, the doctrines of “working
law,” “express adoption,” and “incorporation by reference” assist
courts in applying this conceptual distinction.84 As we now explain,
“working law” describes a category of post‐decisional material, and
“express adoption” and “incorporation by reference” describe two
methods by which pre‐decisional material can become post‐decisional.
82 Id. at 151‐53.
83 See id.
84 See Brennan Ctr., 697 F.3d at 201 (“The question of whether a document
constitutes working law, or has been expressly adopted or incorporated by
reference, then, are two paths to determining whether a withheld document
constitutes what FOIA affirmatively requires to be disclosed.” (internal quotation
marks omitted)).
26
i. Working Law
As might be expected from the phrase itself, a document
embodies an agency’s “working law” when the document binds
agency officials or members of the public. In other words, working law
announces what an agency’s law is, not what the law might be. Because
such a document has operative effect—i.e., binding rather than
persuasive power—it is inherently post‐decisional.
In reaching this conclusion, we find instructive certain cases of
the Court of Appeals for the District of Columbia Circuit (the “D.C.
Circuit”), to which we have referred as “a specialist” in differentiating
privileged material from working law.85 The D.C. Circuit has
repeatedly employed a functional test to determine whether a
document constitutes “working law,” inquiring whether the agency
treats the document as binding.
For instance, in Coastal States Gas Corp. v. Department of Energy,
the case from which the working law doctrine emerged, the D.C.
Circuit held that when an agency circulated and consulted certain
documents as a source of binding authority, these documents were a
post‐decisional “functioning body of secret law.”86 In that case, the
plaintiffs sought disclosure of agency “memoranda from regional
counsel to auditors . . . issued in response to requests for
interpretations of regulations within the context of particular facts
85 Id. at 200.
86 617 F.2d 854, 866 (D.C. Cir. 1980) (internal quotation marks omitted).
27
encountered while conducting an audit of a firm.”87 Evidence revealed
that agency auditors did not simply regard the contested memoranda
as persuasive or advisory, but that the memoranda “were retained and
referred to as precedent.”88 In particular, the D.C. Circuit determined
that auditors could not “freely disregard[]” these memoranda, but
would request they be “rescinded, amended, or referred to a higher
authority.”89 Bound by the directions contained therein, agency
auditors then “actually applied” these directions in their “dealings
with the public.”90 These features led the D.C. Circuit to conclude that
the memoranda were not simply pre‐decisional legal advice, but the
product of the decision‐making process. The agency had, through the
circulation of these documents, “promulgated a body of secret law.”91
Similarly, in Tax Analysts v. Internal Revenue Service, the D.C.
Circuit found that legal memoranda issued by the IRS’s Office of Chief
Counsel to officials in the field constituted “working law” even though
the memoranda were “nominally non‐binding.”92 Despite their
nominally advisory status, the memoranda had been distributed to
ensure “the promotion of uniformity throughout the country on
87 Id. at 858.
88 Id. at 869.
89 Id.
90 Id.
91 Id.
92 117 F.3d 607, 617 (D.C. Cir. 1997).
28
significant questions of tax law.”93 Because these memoranda
functioned as precedent rather than mere guidance, the D.C. Circuit
concluded that they constituted “working law” rather than pre‐
decisional advice.94
As we have previously noted, “[o]ur Court has relatively little
case law examining the ‘working law’ principle.”95 Those few
precedents we do have, however, are entirely consistent with the
principle that emerges from the D.C. Circuit cases—namely, that
working law must be binding.96
To decide the instant case, we need not reach a comprehensive
definition of “working law.” But we do identify a few guiding
principles to district courts faced with the task of determining whether
a document is functionally binding and hence, “working law.” Such
principles include: whether agency officials feel free to disregard the
document’s instructions;97 whether an agency superior distributes the
93 Id. (internal quotation marks omitted).
94 Id. at 619.
95 Brennan Ctr., 697 F.3d at 201.
96 See id. at 198 (equating “working law” with “final opinions” or reports
that have “operative effect”); N.Y. Times II, 806 F.3d at 687 (explaining that OLC
opinions are not “working law” subject to disclosure because “[a]t most, they
provide, in their specific contexts, legal advice as to what a department or agency
is permitted to do” (internal quotation marks omitted)).
97 See Coastal States, 617 F.2d at 869.
29
document to subordinates (rather than vice versa); 98 whether agency
superiors direct their subordinates to follow the document’s
instructions;99 whether the document is applied in the agency’s
dealings with the public;100 and whether failure to follow a document’s
instructions provides cause for professional sanction. These factors all
provide indications as to whether a document has become binding on
agency officials and therefore represents an agency’s “effective law
and policy.”101
ii. Express Adoption
Occasionally, documents drafted as pre‐decisional material will
ultimately be recycled and reissued as an agency’s “working law.” The
doctrine of “express adoption” describes a process by which courts can
discern whether a document first drafted as legal or policy advice has
become an agency’s “effective law and policy.”
For instance, an agency’s director might receive a memorandum
from counsel advising him or her how to conduct a program in
accordance with law. The director might then distribute that
document to subordinates with instructions to obey the advice
rendered therein. After such distribution, the document is no longer
privileged. The reason is straightforward: while the initial
98 See Jordan v. U.S. Depʹt of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978).
99 Id.
100 Coastal States, 617 F.2d at 866.
101 Sears, 421 U.S. at 153.
30
communication was deliberative and pre‐decisional, the subsequent
communication was a promulgation of “working law,” and therefore
post‐decisional and no longer privileged.
Because the adoption process is usually internal and hidden
from public view, our Court’s “express adoption” cases have generally
looked for external evidence that such adoption has occurred. In New
York Times Co. v. Department of Justice (“New York Times I”), for instance,
we held that certain Government disclosures fatally undermined the
Government’s claims that an (initially classified and advisory) OLC
memorandum was privileged.102 We noted that senior government
officials engaged in “an extensive public relations campaign to
convince the public” of the lawfulness of a government program,103
and we observed that Attorney General Eric Holder invoked the
disputed OLC memorandum as authority for the purposes of that
campaign.104 We also highlighted the Senate testimony of then‐
Assistant to the President for Homeland Security and
Counterterrorism (and incoming Director of the CIA) John O. Brennan
that “Office of Legal Counsel advice establishes the legal boundaries
102 See N.Y. Times I, 756 F.3d at 116.
103 Id. at 114.
104Id. at 116; see also Oversight of the U.S. Department of Justice Before the
Senate Committee on the Judiciary, 113th Cong. (Mar. 6, 2013), available at
https://fas.org/irp/congress/2013_hr/doj.pdf (explaining that the relevant legal
standard would be “more clear if it is read in conjunction with the underlying
OLC advice”).
31
within which we can operate.”105 Together, these statements revealed
that the OLC memorandum was no longer simply advice to a policy‐
maker, but that the Government afforded the memorandum binding
force within the Executive Branch as its “effective law and policy.”106
Although less explicit, our decision in National Council of La Raza
v. Department of Justice, rests on similar reasoning.107 In that case, we
held that the Department of Justice expressly adopted a 2002 OLC
105 Id. at 111; see also id. at 116. (“[T]he deliberative process privilege [and]
the attorney‐client privilege may not be invoked to protect a document adopted
as, or incorporated by reference into, an agency’s policy. Here, the Government
has done so by publicly asserting that OLC advice ‘establishes the legal
boundaries within which we can operate.’”) (internal quotation marks and
citations omitted). In context, Mr. Brennan’s statement clearly refers specifically to
OLC advice concerning the Government’s targeted killing program. See
Nomination of John O. Brennan to be Director of the Central Intelligence Agency:
Hearing Before the S. Select Comm. on Intelligence, 113 Cong. 44 (Feb. 7, 2013)
(“Brennan Hearing”), https://www.intelligence.senate.gov/hearings/open‐hearing‐
nomination‐john‐o‐brennan‐be‐director‐central‐intelligence‐agency#.
106 To be clear, the Government’s public statements serve as express
evidence that the Government adopted the OLC memorandum as binding on the
CIA. The remarks themselves do not, however, constitute adoption. Indeed, Mr.
Brennan (who was not yet CIA Director when he made these statements), lacked
the authority to adopt the OLC memorandum as binding authority. Adoption
occurs when an agency itself accepts a previously deliberative document as
binding, or actually acts (or refrains from acting) pursuant to the binding
instruction (i.e., as “working law”) of that document. See Elec. Frontier Found. v.
U.S. Depʹt of Justice, 739 F.3d 1, 11 (D.C. Cir. 2014).
107 La Raza, 411 F.3d at 350. Admittedly, our opinion in La Raza is
somewhat imprecise regarding whether “adoption” or “incorporation” provided
the precise basis for our decision, or even whether there is a difference between
the two. As we define and explain the terms, however, La Raza is best understood
as a case of express adoption.
32
memorandum authorizing state governments to make arrests for civil
violations of federal immigration provisions.108 We noted that the
Attorney General and his senior staff repeatedly invoked the OLC
memorandum not just to defend its own policy, but as embodying this
new policy.109 These official statements, we explained,
“demonstrate[d] that [DOJ] regarded the Memorandum as the
exclusive statement of . . . its new policy.”110 Moreover, DOJ’s effective
promulgation of this OLC memorandum, as revealed in its public
statements, carried substantive legal effects for “what a third party—
state and local law enforcement—should and could lawfully do.”111 The
statements therefore amounted to “powerful evidence that [DOJ]
explicitly adopted the OLC Memorandum as part of its policy.”112
Similarly, in Brennan Center for Justice v. Department of Justice, we
found that public statements revealed that the United States Agency
for International Development (“USAID”) had adopted an OLC
memorandum.113 In particular, we pointed to a USAID policy
108 Id. at 357‐58.
109 Id. at 353‐55.
110 Id. at 357.
111 Id. at 359 (internal quotation marks omitted).
112 Id. at 359–60.
113 Brennan Ctr., 697 F.3d at 204‐05. As in La Raza, our opinion in Brennan
Center is unclear about whether “adoption” or “incorporation” provided the
precise basis for our decision. Again, however, as we understand and explain the
terms here, Brennan Center is best understood as a case of express adoption.
33
document explaining that OLC had “determined” that a statutory
funding restriction “only may be applied to foreign non‐governmental
organizations and public international organizations.”114 Later, a
senior USAID official confirmed that OLC’s determination had
effectively dictated USAID’s new approach.115 Taken together, these
USAID statements provided powerful evidence that senior agency
officials related to OLC’s legal advice as binding authority, i.e. as
“working law.” We therefore found that USAID adopted the OLC
memorandum.
iii. Incorporation by Reference
A close cousin to the doctrine of “express adoption” is the
doctrine of “incorporation by reference.” Much like adoption, an
agency incorporates a document by reference when it transforms a
previously advisory document into binding “working law.”116 But
whereas in “express adoption” cases we look for indications that an
agency relates to the document as binding, in cases of “incorporation
114 Id. at 204.
115Id. (citing congressional testimony of Randall Tobias, the U.S. Global
AIDS Coordinator, who explained that he was “simply following the legislation
and the advice to implement that”).
116When a party claims that a previously privileged document has been
“incorporated by refence,” a court’s task is usually to decide whether a reference
to that document itself promulgates the document as binding law. By contrast, in
most “express adoption” cases, the court inquires whether an agency’s remarks
about a previously privileged document provide evidence that the document has
already been promulgated as working law. See note 106, ante.
34
by reference,” we identify the agency’s enactment of that document as
its law or policy through explicit textual reference in a final decision.117
The D.C. Circuit first recognized the doctrine of “incorporation
by reference” in a 1969 case, American Mail Line, Ltd. v. Gulick.118 There,
the court held that by stating “publicly in [a] ruling that its action was
based upon [a specific] memorandum, [and] giving no other reasons
or basis for its action,” the Maritime Subsidy Board of the Department
of Commerce forfeited that memorandum’s “intra‐agency status” and
incorporated it into “a public record” that “must be disclosed.”119
Six years later, in Sears, the Supreme Court endorsed the D.C.
Circuit’s approach, holding that “if an agency chooses expressly to . . .
incorporate by reference an intra‐agency memorandum previously
covered by Exemption 5 in what would otherwise be a final opinion,
that memorandum may be withheld only on the ground that it falls
within the coverage of some exemption other than Exemption 5.”120
Importantly, American Mail Line and Sears limit “incorporation
by reference” to circumstances where the disputed memorandum is
117 See, e.g., Gonzales v. Oregon, 546 U.S. 243, 254 (2006) (describing an
agency interpretive rule as “[i]ncorporating the legal analysis of a memorandum .
. . solicited from [OLC]”); see also Dispensing of Controlled Substances To Assist
Suicide, 66 Fed. Reg. 56,607‐02 (Nov. 9, 2001) (promulgating an interpretive rule
while incorporating a memorandum from the Attorney General).
118 411 F.2d 696 (D.C. Cir. 1969).
119 Id. at 703.
120 421 U.S. at 161.
35
relied on in a “final opinion” or “ruling.” To decide the instant case,
we need not define these terms precisely.121 But we think it clear that
incorporation occurs only when the incorporating “opinion” is itself a
document with functionally binding effect. This limitation is
significant; a decisionmaker’s mere statements expressing his or her
reliance on the reasoning of a separate memorandum do not amount
to “incorporation” of that memorandum. The limitation is also
sensible. Statements such as “we checked it with counsel,” or “we
relied on the assessments of experts” are standard responses in
congressional testimony or public statements. Appropriately, such
statements cannot “incorporate by reference” external memoranda
because such statements do not themselves have binding effect, either
within the agency or on the public.
In sum, a previously privileged document is subject to
disclosure under the doctrine of “incorporation by reference” only
when an agency’s formal opinion or determination of law or policy
expressly references and relies on that document and its reasoning as
the basis for a decision.
b. Application
The above principles dictate the outcome of this case. The ACLU
argues that “reliance on legal analysis as a basis for its operational
121 Among the open issues that we do not decide: whether an incorporating
“final opinion” must (1) be public; (2) adjudicate the rights of individual, private
parties; or (3) have the “force and effect of law,” see Chrysler Corp. v. Brown, 441
U.S. 281, 282 (1979).
36
decisions transforms that analysis into working law.”122 Not so. As we
have explained, a document is only “working law” when it operates
as functionally binding authority on agency decision‐makers. Here,
OLC 10 was drafted as legal advice rather than binding authority and
so was not “working law” when created.123 To be sure, a document
first drafted as legal advice can still be adopted as working law or
incorporated into agency decisions. But mere agreement with a
document’s reasoning and conclusion is insufficient to transform
advice into law. Instead, the document must be treated as binding by
the agency (i.e. “adoption”) or explicitly relied upon in a formal
decision (i.e. “incorporation by reference”).
Here, there is no evidence that the Government ever “adopted”
OLC 10 as binding; nor has the ACLU identified a single agency
opinion that incorporates OLC 10 by reference.
The ACLU’s arguments to the contrary are unavailing. The
ACLU first points to a publicly released 2006 “White Paper” that
contains “much of the legal reasoning” in OLC 10.124 As we have
122 Reply Br. Appellants 3‐4.
123See note 72, ante; see also Elec. Frontier Found., 739 F.3d at 9 (holding that
an OLC opinion submitted to the FBI did not constitute “working law” because
“OLC is not authorized to make decisions about the FBIʹs investigative policy, so
the OLC Opinion cannot be an authoritative statement of the agencyʹs policy”); see
also Citizens for Responsibility & Ethics in Washington v. United States Depʹt of Justice,
922 F.3d 480, 486 (D.C. Cir. 2019) (“An OLC opinion in the latter category qualifies
as the ‘working law’ of an agency only if the agency has ‘adopted’ the opinion as
its own.”).
124 Br. Appellants 25 (brackets omitted). See also note 23, ante.
37
explained, however, disclosure of similar information to that contained
in documents protected by the attorney‐client or deliberative process
privileges does not waive the privilege. These privileges protect a
communication, not information.125
Next, the ACLU contends that a series of public statements by
the Government indicates either that OLC 10 is working law, or that
the Government expressly adopted OLC 10, or that it incorporated
OLC 10 by reference.126 In particular, the ACLU draws our attention to
(1) a press briefing during which Attorney General Gonzalez
described OLC 10 as analyzing the “legal underpinnings” of the Stellar
Wind program;127 (2) an internal agency report, which states that OLC
10 provided “a new legal basis” for the program;128 and (3) Attorney
125 See Section II.B.1, ante.
126The Government urges us not to consider certain public statements by
the Government that were available when the parties were before the District
Court, but that the ACLU did not explicitly raise in its briefing below. These
statements include the 2005 White House press briefing by Attorney General
Gonzales, the 2006 Senate testimony (also by Gonzales), and the 2006 DOJ White
Paper. We decline to disregard these materials. The Government is, of course,
correct that we do not ordinarily hear arguments made for the first time on
appeal. See, e.g., Spinelli v. Nat’l Football League, 903 F.3d 185, 198 (2d Cir. 2018).
The ACLU’s reference to these statements does not constitute a new argument,
however, but simply new evidence in support of old arguments, which “appeals
courts may entertain.” Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 221 (2d Cir.
2006) Moreover, the Government’s subsequent public statements are precisely the
sort of materials of which we may take judicial notice. See N.Y. Times I, 756 F.3d at
110 n.8. We therefore consider these statements in evaluating the ACLU’s claims.
127 See 2005 Press Briefing, note 19, ante.
128 See Joint IG Report, note 23, ante, at 37.
38
General Gonzalez’s testimony before the Senate, in which he stated
that he “agreed with [OLC’s] legal analysis.”129
These governmental disclosures illustrate, at most, the
following: that OLC analyzed a legal question, that the Attorney
General reviewed that analysis and agreed with it, and that the
Attorney General then certified the program. None of the
governmental disclosures indicate that the Attorney General (or any
other official) ever distributed the OLC memorandum as binding
precedent, or that officials within NSA or another agency ever
regarded OLC 10 as binding authority.130 Nor do any of these
disclosures represent an official decision or final opinion that explicitly
references and relies on OLC 10; press briefings, congressional
testimony, white papers and inspectors general reports might be
informative, but they rarely, if ever, amount to official decisions or
“final opinions.”
129 See 2006 Hearing, note 24, ante.
130 The section of the IG Report to which the ACLU points (entitled “A
New Legal Basis for the Program is Adopted”) does not constitute evidence that
OLC 10 was “expressly adopted” for several reasons: first, while the ACLU
suggests that the “new legal basis” mentioned here refers to OLC 10, it seems that
this section of the IG Report in fact describes a period prior to the writing of OLC
10. Moreover, it is not even clear that the “new legal basis” discussed here refers
to a specific document at all. On the contrary, it seems more likely that the phrase
“new legal basis” simply refers to a new interpretation of already‐extant
constitutional and statutory law. In other words, there is no reason to assume that
the IG Report used the word “adoption” as we employ it in this opinion; the IG
Report may simply describe a shift in Administration lawyers’ best
understanding of applicable law, not a promulgation of a new “policy.”
39
It follows that OLC 10 was not created as working law, was
never adopted as working law, and was never incorporated by
reference. We therefore hold that OLC 10 is protected by the
deliberative process and attorney‐client privileges, and was properly
withheld under Exemption 5.
C. The Intelligence Program Documents
We also affirm the District Court’s holding that the six
intelligence program documents are exempt from disclosure under
FOIA Exemptions 1 and 3.
Exemption 1 permits agencies to withhold records that have
been “specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy and . . . are in fact properly classified pursuant to such
Executive order.”131 As relevant here, Executive Order 13,526 permits
classification of information if it pertains to “intelligence sources or
methods” or “foreign relations or foreign activities of the United
States,” where “unauthorized disclosure of the information reasonably
could be expected to result in damage to the national security.”132
FOIA Exemption 3 applies to records “specifically exempted
from disclosure by statute.”133 Here, the Government has invoked
131 5 U.S.C. § 552(b)(1)(A).
132 Exec. Order No. 13,526, 75 Fed. Reg. 707, 707 § 1.1(a)(3)‐(4), 709 § 1.4(c)‐
(d) (Dec. 29, 2009).
133 5 U.S.C. § 552(b)(3).
40
several statutes, including the National Security Act, which requires
that the Director of National Intelligence “protect intelligence sources
and methods from unauthorized disclosure.”134 The ACLU does not
dispute that each law qualifies as an exemption statute under
Exemption 3.135
The Government bears the burden of establishing that these
exemptions apply, but it can do so by submitting affidavits showing
that the statute’s application “appears logical or plausible.”136 Such
affidavits must describe “with reasonably specific detail” how the
withheld information “logically falls within the claimed exemption,”
and must not be “controverted by either contrary evidence in the
record nor by evidence of agency bad faith.”137
Here, the Government has met its burden. The requested
intelligence program documents concern highly sensitive surveillance
programs.138 A senior intelligence official has attested that each
134 50 U.S.C. § 3024(i)(1). In addition, the Government invokes statutory
provisions related to the NSA, CIA, and communications intelligence activities
generally. See 50 U.S.C. § 3605 (NSA); 50 U.S.C. § 3507 (CIA); 18 U.S.C. § 798
(setting forth criminal penalties for disclosure of classified information).
135ACLU I, 2017 WL 1155910, at *16; see also CIA v. Sims, 471 U.S. 159, 168
(1985) (holding that an earlier version of the relevant National Security Act
provision “qualifies as a withholding statute under Exemption 3”).
136Wilner v. Natʹl Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (internal
quotation marks omitted).
137 Id. (internal quotation marks omitted).
138 See, e.g., J.A. 178‐82.
41
disputed document concerns “particular intelligence sources, and
related methods used to collect and process foreign communications”;
that the existence of these sources and methods is ”currently and
properly classified”; and that disclosure of any meaningful part of
these documents “would reveal core NSA foreign intelligence
activities.”139
In response to these declarations, the ACLU suggests that the
Government failed to segregate and release non‐exempt legal
analysis.140 The ACLU points out that “the legal memoranda within
the packages are quite lengthy,”141 and that, in light of the “volume
and breadth of public information” about the Stellar Wind program,
“it strains credulity to claim that disclosure of pure legal analysis
related to the program could damage national security today.”142
Our credulity is not so easily strained. As we have previously
observed, “the very fact that legal analysis was given concerning a
planned operation would risk disclosure of the likelihood of that
139Id. at 154 ¶ 38 (Declaration of David J. Sherman, Associate Director for
Policy and Records, NSA). The Government’s classified declaration contains more
detail about these documents’ sensitivity. See id. at 447.
FOIA “requires agencies and courts to differentiate among the contents
140
of a document rather than to treat it as an indivisible ‘record’ for FOIA purposes.”
Abramson, 456 U.S. at 626.
141 Br. Appellants 42.
142 Id. at 39.
42
operation.”143 Similarly, disclosure of even “[m]inor details of
intelligence information may reveal more information than their
apparent insignificance suggests because, much like a piece of [a]
jigsaw puzzle, each detail may aid in piecing together other bits of
information even when the individual piece is not of obvious
importance in itself.”144 We have long recognized that “in some
circumstances legal analysis could be so intertwined with facts entitled
to protection that disclosure of the analysis would disclose such
facts.”145 Moreover, in this case, a senior national security official has
affirmed that the legal analysis contained in these memoranda is
“inextricably intertwined” with material that is both classified and
protected by statute.146
In light of “the relative competencies of the executive and
judiciary,” we generally adopt a “deferential posture in FOIA cases
regarding the uniquely executive purview of national security.”147
143 N.Y. Times I, 756 F.3d at 119.
144 Wilner, 592 F.3d at 73 (internal quotation marks and brackets omitted).
145 N.Y. Times I, 756 F.3d at 119; see also N.Y. Times II, 806 F.3d at 687
(holding that certain OLC documents are entitled to protection because “it would
be difficult to redact any arguably disclosable lines of legal analysis from these
documents without disclosing the contents of [another protected] document”).
146J.A. 450 ¶ 4 (Supplemental Declaration of David J. Sherman, Associate
Director for Policy and Records, NSA).
147 Wilner, 592 F.3d at 76 (internal quotation marks omitted).
43
Accordingly, we again decline to “second‐guess the predictive
judgments made by the government’s intelligence agencies.”148
We therefore hold that the surveillance approval packages were
properly withheld under Exemptions 1 and 3.
D. The Request for “Reprocessing”
Lastly, we briefly address the ACLU’s request that we “order the
re‐processing” of the contested documents in light of several
governmental disclosures that post‐date the agency’s initial FOIA
decision.149
The ACLU identifies three such disclosures: (1) the full Joint IG
Report (released in September 2015), (2) OLC 9 (released in February
2016), and (3) OLC 8 (released while this appeal was pending).
Although these disclosures are subsequent to the Government’s initial
FOIA decision, the ACLU reminds us that it is “legally entitled to file
a new FOIA request at any time,” and so urges us to consider these
documents now in the interests of judicial economy.150
The Government responds that these disclosures cannot be the
basis for such an order because “[a]s a general rule, a FOIA decision is
evaluated as of the time it was made and not at the time of a court’s
148 Id. (internal quotation marks omitted).
149 Br. Appellants 47.
150 Reply Br. Appellants 20.
44
review.”151 Relying on precisely this rule, the District Court declined
to order reprocessing.152
Today, we reaffirm the general rule, and further hold that a
court reviewing a FOIA decision must not order reprocessing simply
to reassure itself that a correct decision remains current. As we have
previously observed, “[t]o require an agency to adjust or modify its
FOIA response based on post‐response occurrences could create an
endless cycle of judicially mandated reprocessing each time some
circumstance changes.”153 This case highlights the importance of our
general practice. Indeed, one of the disclosures the ACLU urges us to
consider—OLC 8—was released between the filing of the ACLUʹs
appellate briefs. Imposing a continuing duty on agencies to update
their responses to FOIA requests as “potentially relevant” documents
(or, as is the case with the Joint IG Report, more sections of a certain
document) are disclosed piecemeal renders agencies vulnerable to
repeated reprocessing requests mid‐litigation. FOIA does not subject
agencies or the courts to such “an endlessly moving target.”154
While we have occasionally departed from our general rule and
considered subsequent developments as part of a FOIA review, we
have done so only in exceptional circumstances. And crucially, we
151 N.Y. Times I, 756 F.3d at 110 n.8.
152 ACLU I, 2017 WL 1155910, at *22.
153 Florez v. C.I.A., 829 F.3d 178, 188 (2d Cir. 2016) (quoting Bonner v. Dep’t
of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991)) (internal quotation marks omitted).
154 Bonner, 928 F.2d at 1153 (internal quotation mark omitted).
45
have never ordered an agency to reprocess records simply to reassure
ourselves that a FOIA decision remains up‐to‐date. In Florez v. Central
Intelligence Agency, for instance, we remanded to the District Court in
light of disclosures that post‐dated the Government’s decision to
withhold particular documents.155 Critically, however, we noted that
the agency had already voluntarily reprocessed the documents.156
Thus, our decision imposed no additional burden on the agency.
Similarly, in New York Times I, although we considered post‐
decision disclosures in our review, we did so only because
reprocessing was unnecessary to decide whether the withheld
documents were subject to disclosure.157 In that case, the CIA had
replied to a FOIA request relating to a CIA targeted killing program
with a “Glomar response”158—neither confirming nor denying the
existence of a document.159 The CIA justified its Glomar response by
stating that “the government has never disclosed . . . whether the CIA
has an operational role in the use of targeted lethal force or is
155 Florez, 829 F.3d at 187‐88.
156 Id. at 188.
157N.Y. Times I, 756 F.3d at 111 n.8 (“The Government’s post‐request
disclosures go to the heart of the contested issue, and, as discussed below, are
inconsistent with some of its prior claims.” (internal quotation marks, citations,
and brackets omitted)).
The term derives from the Hughes Glomar Explorer, a vessel purportedly
158
owned and operated by the CIA, which the Government refused to
acknowledge. See Phillippi v. CIA, 546 F.2d 1009, 1010‐12 (D.C. Cir. 1976).
159 N.Y. Times I, 756 F.3d at 103, 105.
46
authorized to use such force.”160 This statement was directly
contradicted by the post‐request disclosures that discussed the CIA
program explicitly.161 There was thus no question that, at the time of
the appeal, the Governmentʹs “Glomar response” was no longer
sustainable.162
The post‐request disclosures at issue in New York Times I were
therefore not just potentially relevant, but clearly dispositive of the
Government’s secrecy claims. Under such circumstances, declining to
take judicial notice of public statements would serve no purpose.
Ignoring such statements would have needlessly added work for the
courts and simply delayed the inevitable for the agencies.
In sum, our Court has only departed from the general rule—that
an agency’s FOIA decision is evaluated as of the time it was made—
when doing so is in the clear interest of judicial economy and would
not burden the agency with prudential reprocessing. Those are not the
circumstances here. The Government has not already reprocessed the
material in light of the subsequent disclosures, and the subsequent
160 Id. at 122 (brackets omitted).
161Id. (“With CIA identified, the [Government’s] main argument for the
use of Glomar . . . responses evaporates.”).
162See Wilner, 592 F.3d at 70 (“An agency only loses its ability to provide a
Glomar response when the existence or nonexistence of the particular records
covered by the Glomar response has been officially and publicly disclosed.”).
47
disclosures do not on their face plainly undermine the Government’s
claimed privilege.
Accordingly, we decline to order reprocessing in light of the
subsequent disclosures of portions of the Joint IG Report, OLC 9, and
OLC 8.
III. CONCLUSION
To summarize, we hold as follows:
(1) A document reflects an agency’s “working law” when the
agency regards that document as functionally binding
authority. “Adoption” and “incorporation by reference” are
means by which an otherwise privileged document becomes
an agency’s “working law.”
(2) “Express adoption” is a basis for disclosure of a previously
privileged document where an agency’s statements indicate
that it now acts (or refrains from acting) pursuant to the
document’s functionally binding authority.
(3) “Incorporation by reference” is a basis for disclosure of a
previously privileged document where an agency’s formal
opinion or ruling explicitly relies on that document and its
reasoning in reaching a decision.
(4) OLC 10 was properly withheld under FOIA Exemption 5
(privileged communications).
48
(5) The six intelligence program documents at issue were
properly withheld under FOIA Exemptions 1 (classified
information) and 3 (material shielded from disclosure by
other statutes).
(6) Because FOIA decisions must be evaluated as of the time of
the agency decision, courts should not order reprocessing
simply to reassure themselves that a FOIA decision remains
current in light of subsequent disclosures. We therefore
decline to order reprocessing.
For the foregoing reasons, the August 22, 2017 judgment of the
District Court is AFFIRMED.
49