American Oversight v. U.S. Dep't of Just.
volume_reporter_page_placeholder (2022)
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Rule of Law:
Under the Freedom of Information Act (FOIA) Exemption 5, the government does not waive attorney-work-product protection for interview notes and memoranda simply by conducting the interview with a potential litigation adversary. The act of memorializing an interview involves strategic choices and mental impressions that are not disclosed during the interview itself and remain protected.
Facts:
- Between 2018 and 2019, the Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) investigated potential campaign-finance-law violations and obstruction of justice related to the Donald J. Trump 2016 presidential campaign.
- In the course of the investigation, federal prosecutors and FBI agents conducted interviews with various individuals.
- Some of the individuals interviewed were designated as 'targets' or 'subjects' of the investigation, meaning they were potential defendants or their conduct was within the scope of the inquiry.
- The prosecutors and agents created internal documents to memorialize these interviews, including FBI Form 302s, interview memoranda, and handwritten notes.
- The investigation resulted in a single prosecution, that of Trump Organization attorney Michael Cohen, who pleaded guilty.
- The government never publicly identified any other individuals interviewed as 'targets' or 'subjects'.
Procedural Posture:
- American Oversight filed a Freedom of Information Act (FOIA) request with the Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI).
- After the agencies failed to produce the requested records, American Oversight sued them in the U.S. District Court for the Southern District of New York to compel disclosure.
- The DOJ identified 30 responsive documents, withholding 25 in full and producing 5 in part, asserting various FOIA exemptions, primarily Exemption 5 for attorney work product.
- The parties filed cross-motions for summary judgment regarding 27 of the documents.
- The district court granted summary judgment in favor of the DOJ and FBI, holding that the documents were properly withheld as attorney work product under FOIA Exemption 5.
- American Oversight, as plaintiff-appellant, appealed the district court's judgment to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does the government waive attorney-work-product protection under FOIA Exemption 5 for interview memoranda created after an interview, on the basis that the content of the interview was necessarily disclosed to the interviewee, who was a potential litigation adversary ('target' or 'subject') of the investigation?
Opinions:
Majority - Judge Reena Raggi
No, the government does not waive work-product protection for interview memoranda by virtue of conducting the underlying interview with a potential adversary. A waiver of work-product protection for a document generally occurs when its contents are disclosed after its creation; a waiver cannot logically occur for a document that does not yet exist. The government's act of interviewing a target or subject does not disclose the subsequent thought processes and strategic choices involved in memorializing that interview, such as structure, emphasis, and content selection. These memoranda reflect the attorney's mental impressions, which were never shared with the interviewee. Furthermore, the core information in the memoranda—the interviewee's answers—was disclosed by the interviewee, not the government. Thus, the government took no action inconsistent with maintaining the confidentiality of its yet-to-be-created work product.
Analysis:
This decision significantly reinforces the strength of the attorney-work-product doctrine for government investigators under FOIA. By rejecting the novel argument that protection is waived for documents before they are even created, the court protects the core of the doctrine: an attorney's mental impressions and strategic thinking. The ruling ensures that prosecutors can conduct necessary interviews with subjects and targets of an investigation without forfeiting protection for their internal notes, thereby preserving a crucial zone of privacy for litigation preparation. This precedent makes it more difficult for FOIA requesters to obtain internal law enforcement investigatory records by claiming waiver based on the nature of the investigative process itself.
