Louise Trauma Center LLC v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LOUISE TRAUMA CENTER LLC, :
:
Plaintiff, : Civil Action No.: 20-3517 (RC)
:
v. : Re Document Nos.: 28, 31
:
U.S. DEPARTMENT OF JUSTICE, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT; DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT
This matter arises out of a series of FOIA requests Plaintiff Louise Trauma Center LLC
(the “Center”) made to the Department of Justice (“DOJ”) in 2019 and 2020. See generally
Compl., ECF No. 1. After the Center filed a six-count Complaint to enforce its requests in
December 2020, see Compl., DOJ processed them and the parties began negotiations, see Joint
Status Reports, ECF Nos. 10, 11, 12, 13, 15. Unable to reach agreement as to Counts 2 and 4,
the parties filed cross motions for summary judgment in the summer of 2021. See Pl.’s 1d Mot.
Summ. J., ECF No. 14; Def.’s 1d Cross-Mot. Summ. J., ECF No. 17. The Court denied
Plaintiff’s motion and granted DOJ’s cross-motion only as to Count 4, leaving Count 2
unresolved. See Louise Trauma Ctr. v. Dep’t of Justice (“Louise Trauma I”), No. 20-cv-3517,
2022 WL 278771, at *3–4, 10 (D.D.C. Jan. 30, 2022). Thereafter, DOJ conducted multiple
reviews of the withheld material and made additional productions, while continuing to withhold
certain material. See Def.’s Statement of Material Facts in Supp. Renewed Mot. Summ. J.
(“Def.’s 2d SMF”) at 3–5, ECF No. 28-1; Pl.’s Resp. Def.’s 2d SMF at 3–5, ECF No. 30-1. The
parties’ renewed cross-motions on the still-withheld material are ripe for review. 1 See Def.’s
Renewed Mot. Summ. J. (“Def.’s 2d MSJ”), ECF No. 28; Pl.’s Opp’n to Def.’s 2d MSJ and
Cross-Mot. for Summ. J. (“Pl.’s Opp’n and Cross-MSJ”), ECF No. 31. For the reasons set forth
below, the Court grants in part and denies in part DOJ’s motion, denies the Center’s cross-
motion, and instructs DOJ to provide certain records to the Court for in camera review.
I. BACKGROUND
While the Court presumes familiarity with the factual and procedural background laid out
in Louise Trauma I, 2022 WL 278771, at *1–2, it briefly reiterates the most relevant facts before
summarizing the parties’ more recent efforts to resolve this matter. The FOIA request reflected
in Count 2 of the Complaint sought “all records . . . concerning Office of Immigration Litigation
training materials for lawyers in the appellate section.” See Ex. 2 to Compl., ECF No. 1-2;
Compl. ¶ 14. The responding division of DOJ, the Office of Immigration Litigation-Appellate
Section (“OIL-App”), “located 4,364 responsive pages, of which the Civil Division released 172
pages in full, released 24 pages with redactions, and withheld 4,168 pages and 12 videos in full
pursuant to FOIA Exemptions 5 and 6.” Louise Trauma I, 2022 WL 278771, at *3.
In its first Motion for Summary Judgment, the Center did not contest that Exemption 6
was appropriately applied, so the Court focused on DOJ’s justifications for invoking Exemption
5, see id. at *3 n.1., which protects documents that would be privileged in ordinary civil
litigation, see Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.D.C. 2008). 2 DOJ submitted a Vaughn
1
While the Court considers Plaintiff’s cross-reply, it notes that it was untimely, filed
nearly a week after the seven-day deadline imposed under Local Civil Rule 7(d). See Pl.’s
Reply, ECF No. 34.
2
Specifically, Exemption 5 shields from disclosure “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).
2
Index justifying its withholdings under Exemption 5 on grounds that the withheld material was
subject to the attorney work product privilege, the deliberative process privilege, and/or the
attorney-client privilege, but the Court found that the “information provided [was] insufficient to
allow the Court to make a de novo determination about the appropriateness of the withholdings.”
Louise Trauma I, 2022 WL 278771, at *4. Accordingly, the Court denied both parties’ motions
as to Count 2 and extended DOJ “another opportunity to meet its burden.” Id.Subsequently, DOJ conducted multiple reviews of the withheld material, see Def.’s 2d
SMF at 3–5; Pl.’s Resp. Def.’s 2d SMF at 3–5, ECF No. 30-1, and “determined that 1,922 pages
should be released in full, 12 videos and 443 pages should be released in part, and 1,404 pages
should be withheld in full.” Decl. Elizabeth A. Wood (“Wood Decl.”) ¶ 7, ECF No. 28-2. 3 As
to the withheld material, DOJ continues to assert Exemption 5 through the attorney work product
privilege, the deliberative process privilege, and/or the attorney-client privilege, as well as
Exemption 6. Id. ¶ 12–13.
II. LEGAL STANDARD
Congress enacted FOIA to permit citizens to discover “what their government is up to.”
U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)
(quoting EPA v. Mink, 410 U.S. 73, 105 (1973) (Douglas, J., dissenting)). After an agency
“[conducts] a search reasonably calculated to uncover all relevant documents,” Weisberg v. U.S.
Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983), FOIA requires the agency to disclose
responsive records revealed by the search, unless material in the records falls within one of
3
DOJ also determined that “80 pages are not responsive to the FOIA request, 50 pages
are duplicates, 142 pages were referred to the Justice Management Division, and 127 pages were
referred to the Professional Responsibility Advisory Office.” Wood Decl. ¶ 7. The Center does
not challenge these determinations.
3
FOIA's nine statutory exemptions, 5 U.S.C. § 552(b). See also Jud. Watch, Inc. v. U.S. Dep't of
Def., 847 F.3d 735, 738 (D.C. Cir. 2017) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
136 (1975)). “The agency bears the burden of establishing that a claimed exemption applies,”
Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 746 F.3d 1082, 1088 (D.C. Cir. 2014)
(citing Dep’t of Just. v. Reps. Comm. For Freedom of the Press, 489 U.S. 749, 755 (1989)), and
exemptions are “given a narrow compass,” U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 151
(1989).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Pinson v. Dep't of Justice, 236 F. Supp. 3d 338, 352 (D.D.C. 2017) (quoting Defs. of Wildlife v.
U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). Courts review agency withholdings
de novo. See 5 U.S.C. § 552(a)(4)(B). In general, summary judgment is appropriate when “the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “material” fact is one capable of
affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute is “genuine” if there is enough evidence for a reasonable factfinder
to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380 (2007). In a FOIA
case, summary judgment is appropriate “if no material facts are genuinely in dispute and the
agency demonstrates ‘that its search for responsive records was adequate, that any exemptions
claimed actually apply, and that any reasonably segregable non-exempt parts of records have
been disclosed after redaction of exempt information.’” Prop. of the People, Inc. v. Off. of
Mgmt. and Budget, 330 F. Supp. 3d 373, 380 (D.D.C. 2018) (quoting Competitive Enter. Inst. v.
EPA, 232 F. Supp. 3d 172, 181 (D.D.C. 2017)).
4
The reviewing court may grant summary judgment based on the record and agency
declarations if “the agency’s supporting declarations and exhibits describe the requested
documents and ‘the justifications for nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the claimed exemption, and are not
controverted by either contrary evidence in the record nor by evidence of agency bad faith.’”
Pronin v. Fed. Bureau of Prisons, No. 17-cv-1807, 2019 WL 1003598, at *3 (D.D.C. Mar. 1,
2019) (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal citation
omitted)). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it
appears ‘logical’ or ‘plausible.’” Scudder v. Cent. Intel. Agency, 254 F. Supp. 3d 135, 140
(D.D.C. 2017) (quoting Jud. Watch, Inc. v. U.S. Dep’t. of Def., 715 F.3d 937, 941 (D.C. Cir.
2013)).
III. ANALYSIS
The Center again does not contest the propriety of DOJ’s limited withholdings pursuant
to Exemption 6, see Pl.’s Opp’n and Cross-MSJ at 21, so the parties’ cross-motions focus on the
broader set of withholdings pursuant to Exemption 5. Exemption 5 of FOIA protects “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). The Supreme Court
and the D.C. Circuit have construed Exemption 5 to exempt documents “normally privileged in
the civil discovery context,” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see also
Martin v. Off. of Special Couns., 819 F.2d 1181, 118 (D.C. Cir. 1987), including under the work
product privilege, the deliberative process privilege, and the attorney-client privilege, see Brown
v. Dep't of State, 317 F. Supp. 3d 370, 376 (D.D.C. 2018) (quoting Loving v. Dep't of Def., 550
F.3d 32, 37 (D.C. Cir. 2008)).
5
Here, DOJ asserts the work product privilege over the vast majority of the withheld
material. It asserts the attorney-client privilege concurrently over a PowerPoint presentation
titled, “Professional Responsibility Advisory Office Training Powerpoint” and independently
over four other sets of withholdings. See Vaughn Index at 8, 17, 33, 50–51, ECF No. 29-1. It
also asserts the deliberative process privilege over a significant number of records, but states that
this is “secondary to the concurrently-applied Attorney Work-Product Doctrine and the
Attorney-Client Communication Privilege, which cover the same records.” Def.’s Opp’n and
Reply at 1, ECF No. 32. Accordingly, with one exception identified below, 4 the Court only
considers the deliberative process privilege in connection with a single withholding for which
DOJ failed to adequately justify other concurrently asserted privileges.
A. Attorney Work Product Privilege
The attorney work product privilege “shields materials ‘prepared in anticipation of
litigation or for trial by or for [a] party or by or for that ... party's representative.’” Tax Analysts
v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997) (quoting Fed. R. Civ. P. 26(b)(3)). “The work
product privilege enables . . . lawyer[s] to develop [their] mental impressions and legal theories
without fear of having [their] adversaries rummage through them at leisure.” Delaney, Migdail
& Young, Chartered v. IRS, 826 F.2d 124, 126 (D.C. Cir. 1987) (citing Hickman v. Taylor, 329
U.S. 495, 510–11 (1947)). Work product is protected if “disclosure . . . risks revealing DOJ's
litigation strategies and legal theories regardless of whether it was prepared with a specific claim
in mind.” Nat’l Ass’n of Crim. Def. Laws. v. Dep’t of Just. Exec. Off. for U.S. Att’ys, 844 F.3d
4Contrary to Defendant’s statement that it only asserted the work product privilege over
withholdings also covered by another privilege, in fact it seemingly inadvertently asserted the
deliberative process privilege alone over redactions applied to a single page. See Vaughn Index
at 32. This page is discussed infra Section III.C.
6
246, 254 (D.C. Cir. 2016). That is, while “‘neutral’ accounts of government policy” that merely
“pertain to the subject of litigation in the abstract” may not be privileged, any materials that
“impart[] litigation strategy to government lawyers” by “addres[ing] how attorneys on one side
of an adversarial dispute . . . should conduct litigation” are privileged work product. Id. at 254–
56. This includes materials that “describe[] how to respond to the other side's arguments, which
cases to cite, and what material to turn over and when to do so,” or explain “the types of claims
defense counsel have raised,” “tactics they could employ in litigation,” and “arguments
prosecutors can make to respond.” Id. 255 (internal citation omitted).
The Center’s motion cites to no case law beyond Louise Trauma I to identify the contours
of the work product privilege or illuminate how it should apply to the records under review here,
which almost entirely consist of OIL-App training presentations for new attorneys. See Pl.’s
Opp’n and Cross-MSJ at 9–20; Def.’s Opp’n and Reply at 2 (“Plaintiff fails to cite any caselaw
in support of its arguments regarding the application of the Attorney Work-Product Doctrine and
the Attorney-Client Communication Privilege . . . .”). 5 Instead, the Center makes two related
semantic arguments as to why “many” of the justifications for invoking the privilege contained
in DOJ’s Vaughn Index are insufficient. See Pl.’s Opp’n and Cross-MSJ at 9-12. First, the
Center argues that “[m]aterials that state the instructor’s ‘viewpoint’ are not protected” because
“[a]ll instructors have ‘viewpoints.” Id. at 11. It argues that because DOJ lawyers “do not try to
‘win’ cases” and instead “try to achieve justice,” “[if] justice is done, they ‘win’,” so their
“viewpoints should be disclosed.” Id. Setting aside the Center’s misconception of the
5
The Center’s motion appears to seek summary judgment only as to some of the records
over which DOJ asserted the work product privilege. See Pl.’s Opp’n and Cross-MSJ at 9
(section heading reading, “Some of the Materials Are Not Protected by the Attorney Work
Product Doctrine”). Nonetheless, for purposes of evaluating DOJ’s motion, the Court reviews
each claim to exemption de novo. See 5 U.S.C. § 552(a)(4)(B).
7
adversarial nature of the U.S. court system, see Greenlaw v. United States, 554 U.S. 237, 243
(2008) (“In our adversary system, in both civil and criminal cases . . . we rely on the parties to
frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties
present.”), and the central function of the work product privilege to “protect ‘the integrity of the
adversary trial process itself,’” see Nat’l Ass’n, 844 F.3d at 251 (citation omitted), a rule that
government attorneys’ viewpoints are not protected work product would swallow the privilege
whole. It is the basic purpose of the privilege to protect attorneys’ “mental impressions” in
relation to foreseeable litigation. See Hickman v. Taylor, 329 U.S. 495, 510 (1947) (“Not even
the most liberal of discovery theories can justify unwarranted inquiries into the files and the
mental impression of an attorney.”).
Second, the Center argues by extension that “[m]aterials that state an instructor’s
“analysis,’ ‘view,’ or ‘thoughts,’ are not protected” because “[t]here is no real difference
between viewpoints, views, analysis, or thoughts.” Pl.’s Opp’n and Cross-MSJ at 12. Whatever
the merits of the Center’s thesaural comparisons, as explained above, attorneys’ “mental
impressions, conclusions, opinions, or theories” are the core of what is protected by the work
product privilege. United States v. Deloitte, 610 F.3d 129, 138 (D.C. Cir. 2010) (quoting United
States v. Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998)). Far from stripping otherwise deserving
records of work product protection, the appearance of the Center’s selected words in the Vaughn
Index generally bolsters DOJ’s claim to the privilege.
Still, it is DOJ, not the Center, that must justify its assertions of the work product
privilege. The Court finds that DOJ has carried its burden through its proffered justifications in
the Vaughn Index as to all such assertions except the narrow group identified below. The vast
majority of these records are training materials discussing arguments or strategies that DOJ
8
attorneys should adopt or consider in particular situations that may arise in the course of
litigating matters under their purview. See, e.g., Vaughn Index at 12 (one page redacted in
presentation titled, “Government Role Element in Persecution” because it discusses “litigation
strategy and arguments to use during briefing of cases for litigation related to persecution”); id.
at 15 (one page withheld from presentation titled, “National Security and Human Rights
Removal Grounds and Bars to Relief and Protection” because it discusses “viewpoints on issues
that can bar relief and protection in a litigation and how to argue those points”); id. at 41 (six
pages redacted and one page withheld from presentation titled, “Asylum & Withholding of
Removal: Exploring the Legal Elements & Credibility and Corroboration” because they discuss
the “attorney’s viewpoints on how to construct severity of harm arguments and the issues that
might present themselves with these arguments.”). These fall squarely within the category of
privileged documents that “address[] how attorneys on one side of an adversarial dispute . . .
should conduct litigation.” Nat’l Ass’n, 844 F.3d at 255.
A small number of records arguably contain “neutral” legal analysis that is disconnected
from “litigation strategy.” Id. at 256. However, even if material has a “seeming air of neutrality
if considered in strict isolation,” where disclosure would “tend to reveal the lawyer’s thoughts
about which authorities are important and for which purposes,” it “squarely implicates the work-
product privilege.” Id. The latter description captures most of the material withheld here that
arguably contains neutral legal analysis. As a representative example, one entry in the Vaughn
Index explains that a 29-page withholding contains discussion of “how specific courts and judges
view” certain legal arguments. See Vaughn Index at 3–4 (entry at bottom of page three titled,
“WIF Pages 24–52”). But this discussion is of a piece with the “attorney’s analysis and
viewpoints on advanced topics and issues related to PSGs [particular social groups] and how to
9
handle those topics and issues when they are presented in future litigations” and “which
arguments are the strongest and what to avoid.” Id. Similarly, another entry explains that a 17-
page withholding of a section of a presentation on “Circuit Splits” concerning the “Convention
Against Torture” discusses “how various circuit courts handle different arguments,” but only in
the context of evaluating “which arguments are the strongest for the government in litigating
CAT cases.” Id. at 7 (entry in second row titled, “WIF Pages 41–57”). Apart from the four
exceptions detailed below, the Court finds that DOJ’s explanations adequately demonstrate that
the withheld material would reveal DOJ’s litigation strategy and therefore is protected work
product. See Nat’l Ass’n, 844 F.3d at 256.
In addition, the Court is satisfied that DOJ reasonably segregated privileged material
from non-exempt material, particularly given that “factual material is itself privileged when it
appears within documents that are attorney work product.” Jud. Watch v. Dep’t of Just., 432
F.3d 366, 371 (D.C. Cir. 2005); see Wood Decl. ¶ 10 (explaining that DOJ released training
session agenda documents and two published court opinions, but determined that the “other
training materials contain[] attorney/instructor professional interpretation of statutes and court
opinions, and perceived weaknesses or strengths in present and future legal arguments and
analysis and could not be reasonably segregated”); Def.’s 2d MSJ at 10 (“[T]he very purpose of
these further proceedings is for [DOJ] to make a re-review of the responsive documents and
carefully cull through the training material in order to segregate and produce material that
contained purely [non-exempt material].”). 6 As a representative example, one entry in the
Vaughn Index shows seven separate explanations, each adequate to establish work product
protection, for redactions and withholdings applied to discrete page ranges in an 84-page
6
The Center does not argue that DOJ failed to reasonably segregate non-exempt material.
10
presentation. See Vaughn Index at 12–13 (entry starting in last row of page 12 for presentation
titled, “Hot Topics in Criminal Immigration Litigation”). Finally, the Court is also satisfied that
DOJ, through the declarations of Elizabeth A. Wood, the Acting Director of the Freedom of
Information Act and Privacy Office of the Civil Division of DOJ, has demonstrated that it
“reasonably foresees that disclosure would harm an interest protected” by Exemption 5.
5 U.S.C. § 552(a)(8)(A)(i)(I); see Wood Suppl. Decl. ¶ 5, ECF No. 33-2 (explaining, in a
supplemental declaration devoted almost exclusively to showing reasonably foreseeable harm,
that disclosure of protected work product would “inhibit government attorneys from creating
records necessary for the performance of their duties . . . for fear that their mental impressions
and other work product may be disclosed to the public at large” and would “give opposing
counsel insight into the suggested tactics and arguments that would allow opposing counsel to
anticipate and prepare counterarguments in advance”). 7
However, the Court identifies four minor exceptions to its general finding that DOJ has
adequately justified its withholdings pursuant to the work product privilege. 8 First, DOJ
redacted five points from a slide titled, “And Yet More” from a presentation titled, “Federal
7
Contrary to the Center’s argument that Ms. Wood “does not claim to have any personal
knowledge” sufficient to assert foreseeable harm on behalf of DOJ, see Pl.’s Reply at 8, Ms.
Wood in fact explains that she “oversee[s] the unit responsible for responding to FOIA requests
made to the Civil Division” and submits her declaration “based on [her] own knowledge and
those working under [her] supervision and control.” Wood Decl. ¶¶ 2–3; see Ecological Rts.
Found. v. U.S. Env’t Prot. Agency, 541 F. Supp. 3d 34, 48 (D.D.C. 2021) (“[A]n agency
employee, whose duties involve the processing of FOIA requests, may provide sworn
declarations concerning an agency’s search for and production of records responsive to a FOIA
request.”); Barnard v. Dep’t of Homeland Sec., 531 F. Supp. 2d 131, 138 (D.D.C. 2008)
(explaining that declarants must have “personal knowledge of the procedures used in handling a
FOIA request” and the “documents in question” but “are not required to participate in the search
for records” (formatting omitted)).
8
The work product privilege was the only privilege asserted as to the withholdings
discussed in this paragraph.
11
Power Over Immigration” on grounds that they contain “analysis of the developments in
immigration law and the attorney’s thoughts on those developments.” Vaughn Index at 11 (entry
in third row titled, “RIP Page 13”). Second, DOJ redacted a bullet point in a slide concerning
“Metering” in a presentation titled, “New Asylum Regulations & Policies that Impact OIL’s
Litigation” on grounds that it “addresses how the policy/practice is showing up in briefings in
these litigations.” Vaughn Index at 24 (entry in first row titled, “RIP Page 5”). Third, DOJ
redacted a page concerning “Certification in OIL Cases” in a PowerPoint combining
presentations titled, “Hot Topics in Criminal Immigration Litigation” and “Serious Nonpolitical
Crime Bar and Interpol Red Notices” on grounds that the redacted material discusses “two points
on what OIL can and cannot do in state certification cases.” Id. at 24 (entry in second row titled,
“RIP Page 61”). Fourth, DOJ redacted a page of another presentation concerning “Statutory
Construction Approach” in a presentation titled, “Actual and Imputed Political Opinion-
Overview” on grounds that it contains the “presenter’s viewpoints on how to approach the
question and where to start.” Id. at 32–33 (entry in first row of page 33 titled, “RIP Page 13”).
While these proffered justifications provide some basis to infer that the material consists of
protected work product, more is needed to permit de novo determination of where these
withholdings fall on the spectrum from “neutral, objective analysis” to “more pointed documents
that recommend how to proceed” in conducting or preparing for litigation. Am. Immigr. Council
v. U.S. Dep’t of Homeland Sec., 905 F. Supp. 2d 206, 221–22 (D.D.C. 2012) (internal quotations
omitted).
Accordingly, DOJ is instructed to either release this withheld material to the Center or
else provide it to the Court for in camera review. Outside of these four exceptions, and one
12
further withholding separately analyzed below, 9 the Court finds that DOJ has sufficiently
justified all of its withholdings pursuant to the work product privilege under Exemption 5.
B. Attorney-Client Privilege
“The attorney-client privilege protects confidential communications from clients to their
attorneys made for the purpose of securing legal advice or services.” Tax Analyst v. IRS, 117
F.3d 607, 618 (D.C. Cir. 1997) (citing In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984)).
While the privilege, “at its core, protects communications from a client to an attorney,” Zander v.
Dep’t of Just., 885 F. Supp. 2d 1, 16 (D.D.C. 2012) (citing Fisher v. United States, 425 U.S. 391,
403 (1976)), it also protects communications from an attorney to a client “if the communications
‘rest on confidential information obtained from the client,’” Tax Analyst, 117 F.3d at 618(quoting In re Sealed Case, 737 F.2d at 98–99); see also Schlefer v. U.S., 702 F.2d 233, 245
(D.C. Cir. 1983) (“The attorney-client privilege in federal courts protects communications from
attorney to client to avoid the risk of inadvertent, indirect disclosure of the client’s
confidences.”). “In the governmental context, the ‘client’ may be the agency and the attorney
may be an agency lawyer.” Tax Analyst, 117 F.3d at 618. “A court may infer confidentiality
when the communications suggest that ‘the Government is dealing with its attorneys as would
any private party seeking advice to protect personal interests.’” Heartland All. for Hum. Needs
& Hum. Rts. v. U.S. Immigr. & Customs Enf’t, 406 F. Supp. 3d 90, 122–23 (D.D.C. 2019)
(quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980)).
9
This is a 127-page presentation titled, “Professional Responsibility Advisory Office
Training PowerPoint” that DOJ withheld in full based on the attorney-client privilege, the
deliberative process privilege, and the work product privilege. See Vaughn Index at 50–51. The
Court analyzes this presentation infra Section III.B.1.
13
DOJ asserts the attorney-client privilege over five sets of withholdings in the Vaughn
Index. Its justifications for these assertions all suffer from the same infirmity. The first assertion
pertains to redactions applied to two pages in a presentation titled, “Crimmigration,” and the
second pertains to two pages withheld in full from the same presentation. See Vaughn Index at
8. Regarding the redactions, DOJ explains that they were applied to a “final point in slide
discussing probability of success in including specific statute arguments in criminal immigration
cases.” Id. (first entry in the last row titled, “RIP Page 8, 32”). This is insufficient. First, the
Vaughn Index refers to redactions only to a singular “final point” in a presentation slide, but
simultaneously indicates that the redactions were applied to two pages of records without
explaining the apparent inconsistency. Id. Second, the explanation does not indicate that the
communication from the presenter, who is in the role of the attorney, “rests on confidential
information obtained from the client.” Tax Analyst, 117 F.3d at 618. The same problem applies
to the two pages withheld in full, which DOJ explains contain “guidance on how to argue
specific elements and the perceived differences in those elements, and the possible documents
needed to support the arguments.” Vaughn Index at 8 (second entry in last row titled, “WIF Page
9, 33”). More is required to show that the withheld material was based on confidential
information provided by the client. See In re Sealed Case, 737 F.2d at 99 (“[T]he claimant must
demonstrate with reasonable certainty that the lawyer’s communication rested in significant and
inseparable part on the client’s confidential disclosure.” (citations omitted)); compare Bloche v.
Dep’t of Def., 279 F. Supp. 3d 68, 86 (D.D.C. 2017) (“Since these slides [from a PowerPoint
presentation titled, “Review of Detainee Abuse Reports”] are a communication from an attorney
to his client, they are privileged only insofar as they rest on confidential information obtained
from the client. Defendant, in its declaration, offers no explanation as to what confidential client
14
communication underlies these slides.”) with New York Times Co. v. U.S. Dep’t of Just., 282 F.
Supp. 3d 234, 238 (D.D.C. 2017) (“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.”).
It is tempting to infer that DOJ unintentionally asserted the attorney-client privilege as to
these entries when in fact it meant to assert the work product privilege, given that its
explanations more naturally fit within the latter doctrine. But DOJ failed to correct this possible
error even in response to the Center’s direct challenge to the two withheld pages. See Pl.’s Reply
at 13, ECF No. 34 (arguing that the attorney client privilege does not apply to the two withheld
pages because the explanation “does not identify client” or “claim that a client ‘confidentially
communicated facts.’”). Accordingly, DOJ is instructed to either produce the withheld material
to the Center or else provide the presentation to the Court for in camera review, together with
supplemental explanation of the privilege asserted in a further revised Vaughn Index.
The third assertion of the attorney-client privilege pertains to redactions applied to 16
pages in a presentation titled, “Professional Responsibility in Immigration Litigation.” See
Vaughn Index at 17. And the fourth assertion pertains to redactions applied to 12 pages in a
presentation titled, “Professional Responsibility Issues – OIL Litigation Part II.” See id. at 33.
DOJ justifies both sets of redactions on grounds that “the redacted material provides legal advice
to DOJ attorneys in complying with their professional responsibility obligations.” Id. at 17, 33.
Here, too, DOJ has failed to provide any indication that the communication “rests on confidential
information obtained from the clients.” Tax Analyst, 117 F.3d at 618. DOJ claims that “[a]dvice
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from a mentor or a training attorney about how to comply with legal duties is exactly the sort of
communication ‘for the purpose of obtaining or providing legal advice’ protected by the
attorney-client privilege.” See Def.’s Opp’n and Reply at 7 (citing In re Kellogg Brown & Root,
Inc., 756 F.3d 754, 757 (D.C. Cir. 2014)). DOJ cites In re Kellogg for this proposition, but that
case involved a much different situation in which a corporation asserted the privilege over
documents created pursuant to an internal investigation that the corporation claimed was
“conducted for the purpose of obtaining legal advice.” In re Kellogg, 756 F.3d at 756. But the
records at issue here were not created for the purpose of obtaining legal advice, but rather for the
purpose of providing it. In this situation, where the attorneys’ communication to the client is at
issue, that communication must be “based, in part at least, upon a confidential communication to
the lawyer from the client.” In re Sealed Case, 737 F.2d at 99 (cleaned up). This makes sense,
as the purpose of the privilege is not broadly to promote public understanding of the law, but
more narrowly “to encourage clients to make full disclosure to their attorneys.” Fisher v. United
States, 425 U.S. 391, 403 (1976) (citations omitted); see also Schlefer, 702 F.2d at 245 (“The
attorney-client privilege in federal courts protects communications from attorney to client to
avoid the risk of inadvertent, indirect disclosure of the client's confidences.”). 10 Here, because
10
DOJ also cites Nat’l Sec. Couns. v. CIA, 206 F. Supp. 3d 241, 286 (D.D.C 2016), in
which the court found that portions of CIA training materials were exempt from disclosure under
FOIA based on the attorney-client privilege. However, the training materials were prepared to
assist “CIA employees responsible for processing FOIA requests for agency records,” not
government lawyers. Id. As such, the attorney-client communications at issue were not between
the presenter and the trainees, but rather consisted of legal advice from CIA attorneys,
presumably generated at a different time and for a separate purpose, that happened to be “directly
quoted and/or summarized” the training materials. Id. It makes sense, then, that the Court only
directly considered whether the communications at issue were maintained confidentially after
they were originally made. Id. (explaining that “while the agency’s description of the genesis of
these documents . . . is somewhat vague,” the plaintiff “provides no basis upon which to
conclude that these materials were shared with agency employees who were not responsible for
carrying out the record processing tasks described therein”). By contrast, here, DOJ asserts the
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DOJ failed to make the necessary showing that the redacted material in the two presentations
identified above was based on confidential information provided by the client—in this situation,
the agency lawyers—DOJ must either produce the withheld material to the Center or else
provide the presentations to the Court for in camera review, together with supplemental
explanation of whether the redacted material was based on confidential information obtained
from the client in a further revised Vaughn Index.
1. PRAO PowerPoint
The fifth and final assertion of the attorney-client privilege pertains to DOJ’s withholding
in full of a 127-page presentation titled, “Professional Responsibility Advisory Office Training
PowerPoint” used to train “DOJ attorneys on how to recognize and analyze professional
responsibility issues that may arise.” See Vaughn Index at 50–51. The Vaughn Index asserts
three bases for exemption. It first asserts the attorney-client privilege on grounds that “PRAO is
ethics counsel to DOJ attorneys and the redacted material provides legal advice in complying
with the DOJ attorneys’ professional responsibility obligations.” Id. at 51. But again, this
explanation fails to establish that this communication from attorney to client was based on
confidential information obtained from the client. See Tax Analyst, 117 F.3d at 618.
privilege directly over attorney-client communications between the presenter, in the role of
attorney, and the DOJ lawyer trainees, in the role of clients, embodied in the training
presentation itself. See Def.’s Opp’n and Reply at 9 (“Because these training courses contain
legal advice from the experienced attorney to the trainees on how to respond to potential legal
situations and or [sic] arguments, they are protected under the Attorney-Client Communication
Privilege . . . .” (citation omitted)). This puts the question of whether those communications
were based on confidential information obtained from the clients directly in issue. See Bloche v.
Dep’t of Def., 279 F. Supp. 3d 68, 86 (D.D.C. 2017) (“Since these slides [from a PowerPoint
presentation titled, “Review of Detainee Abuse Reports”] are a communication from an attorney
to his client, they are privileged only insofar as they rest on confidential information obtained
from the client.”).
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DOJ also asserts the deliberative process privilege and the work product privilege over
this PowerPoint. Vaughn Index at 50–51. It asserts the deliberative process privilege on grounds
that “the redacted material reflects tentative recommendations on which agency decisionmakers
are free to change their minds.” Id. The deliberative process privilege protects documents that
are both predecisional and deliberative. See Louise Trauma I, 2022 WL 278771, *7. As the
Court explained concerning the “predecisional” prong in Louise Trauma I, “[i]t is not enough to
assert in a conclusory manner that the training material was predecisional,” as the “‘court must
be able to pinpoint an agency decision or policy to which the document contributed’ as well as
‘establish what deliberative process is involved, and the role played by the documents in issue in
the course of that process.’” Id. at *8 (quoting Senate of the Commonwealth of Puerto Rico on
Behalf of Judiciary Comm. v. U.S. Dep’t of Just., 823 F.2d 574, 585–86 (D.C. Cir. 1987)
(cleaned up)). Concerning the “deliberative” prong, the Court explained that the “deliberative
process privilege does not usually extend to training materials because ‘training is not a step in
making a decision; it is a way to disseminate a decision already made.’” Id. (quoting Am.
Immgr. Council, 905 F. Supp. 2d at 218). And regardless, the withheld record itself must
“reflect[] the give-and-take of the consultative process.” Id. (quoting 100Reporters LLC v. U.S.
Dep’t of Just., 284 F. Supp. 3d 115, 153 (D.D.C. 2017)). DOJ’s spare explanation falls far short
of making this showing.
Last, DOJ asserts the work product privilege on grounds that “the redacted material
conveys advice, strategies, and legal authorities on which DOJ attorneys can rely in anticipation
of potential litigation if their conduct is challenged in a case or investigation, or becomes the
subject of a bar authority’s inquiry, investigation, or complaint.” Vaughn Index at 51. But the
Vaughn Index states that material was “redacted” from this presentation pursuant to the work
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product privilege (and deliberative process privilege), which is inconsistent with its separate
indication that all 127 pages of the presentation were withheld in full. See Vaughn Index at 50–
51. This ambiguity precludes a finding that the entire record is “fully protected.” Nat’l Ass’n,
844 F.3d at 256-57 (explaining the expectation, with respect to “voluminous or lengthy work-
product records” that appear to contain “segregable, non-exempt material subject to disclosure,”
that courts will “require the agency to provide a description of which parts of the withheld
documents are nonexempt and either disclose them or offer adequate justification for continuing
to withhold them” (cleaned up)). Accordingly, DOJ is instructed to provide an unredacted
version of this PowerPoint to the Court for in camera review, together with supplemental
justification for its privilege assertions in a further revised Vaughn Index.
C. Deliberative Process Privilege
DOJ states that its assertions of the deliberative process privilege are “subsumed and
overwhelmed by the concurrently-applied Attorney-Work Product Doctrine and the Attorney-
Client Communication Privilege” and therefore that the Court should treat argument concerning
the deliberative process privilege as “superfluous.” Def.’s Opp’n and Reply at 1, 10; see Wood
Suppl. Decl. ¶ 6 (“While the attorney work-product doctrine and attorney-client communication
privilege cover all material withheld or redacted, deliberative process is raised as a supplemental
protection under Exemption 5 . . . .”). However, the Vaughn Index indicates that one page was
redacted solely based on the deliberative process privilege. See Vaughn Index at 32 (entry in
first row titled, “RIP Page 41”). Specifically, in a presentation titled, “Particular Social Group
Claims: Litigating in a Post-A-B and Post-L-E-A-II World,” DOJ redacted a slide titled,
“Internal Direction” on grounds that it contains “internal direction for handling these cases
within OIL.” Id. This falls short of the requisite showing, laid out in detail above, that the
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withheld material is both predecisional and deliberative. See Louise Trauma I, 2022 WL
278771, *7. In light of the apparent confusion with respect to this entry, DOJ is instructed to
release the withheld material to the Center or else provide the presentation containing this record
to the Court for in camera review, together with supplemental explanation of the privilege
asserted in a further revised Vaughn Index.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that DOJ’s Motion for Summary
Judgment, ECF No. 28, is GRANTED IN PART AND DENIED IN PART and the Center’s
Cross-Motion for Summary Judgment, ECF No. 31, is DENIED. It is FURTHER ORDERED
that, within 30 days, DOJ shall provide the following records to the Court for in camera review,
consistent with this Opinion:
• Presentation titled “Federal Power Over Immigration.” See Vaughn Index at 11
(to be reviewed in connection with entry in third row titled, “RIP Page 13”).
• Presentation titled “New Asylum Regulations & Policies that Impact OIL’s
Litigation.” See Vaughn Index at 24 (to be reviewed in connection with entry in
first row titled, “RIP Page 5”).
• Combined presentations titled, “Hot Topics in Criminal Immigration Litigation”
and “Serious Nonpolitical Crime Bar and Interpol Red Notices.” Vaughn Index at
24 (to be reviewed in connection with entry in second row titled, “RIP Page 61”).
• Presentation titled, “Actual and Imputed Political Opinion-Overview.” Vaughn
Index at 32–33 (to be reviewed in connection with entry in first row of page 33
titled, “RIP Page 13”).
• Presentation titled, “Crimmigration.” Vaughn Index at 8 (to be reviewed in
connection with both entries in last row).
• Presentation titled, “Professional Responsibility in Immigration Litigation.”
Vaughn Index at 17 (to be reviewed in connection with first entry in second row
titled, “RIP pages 9, 17, 20, 24, 27, 29, 30, 32, 35, 38, 41, 42, 46, 48, 51, and
55”).
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• Presentation titled “Professional Responsibility Issues – OIL Litigation Part II.”
Vaughn Index at 33 (to be reviewed in connection with first entry in second row
titled, “RIP Pages 5, 11, 18, 26, 28, 31, 32, 36, 42, 45, 49, and 53”).
• Presentation titled, “Professional Responsibility Advisory Office Training
PowerPoint.” Vaughn Index at 50–51 (to be reviewed in connection with entry
starting in last row of page 50 titled, “WIF all 127 Pages”).
• Presentation titled, “Particular Social Group Claims: Litigating in a Post-A-B and
Post-L-E-A-II World.” Vaughn Index at 31–32 (to be reviewed in connection
with second-to-last entry in first row of page 32 titled, “RIP Page 41”).
A further revised Vaughn Index also may be submitted on the docket. But given that the
matters at issue have already been briefed twice, no further briefing is necessary from either
party unless requested by the Court. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: March 28, 2023 RUDOLPH CONTRERAS
United States District Judge
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