First Amendment Coal. v. DOJ, No. 12-1013, 2014 WL 1411333 (N.D. Cal. Apr. 11, 2014) (Wilken, J.)

First Amendment Coal. v. DOJ, No. 12-1013, 2014 WL 1411333 (N.D. Cal. Apr. 11, 2014) (Wilken, J.)

Re: Request for legal memorandum prepared by OLC concerning legality of lethal targeting of Anwar al–Awlaki

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The court holds that "[d]efendant's interpretation of the request as seeking one or more OLC memoranda regarding the targeted killing of al–Awlaki is reasonable."  The court rejects plaintiff's argument that "[d]efendant adopted an improperly narrow interpretation of its FOIA request when Defendant construed the request as asking for a single document."  The court finds that "[a]lthough Defendant is required to interpret FOIA requests liberally, the plain language of Plaintiff's request conflicts with its characterization of what it seeks."
   
• Discretionary Disclosure and Waiver, Waiver:  Addressing the question of waiver, the court holds "that the classified information in the DOD memorandum is exempt from disclosure under Exemption One."  The court explains that "[w]hile some of these speeches and interviews discuss the general topic of drones and targeted killings and some even mention legal analyses regarding the propriety of such killings, none of the speeches or interviews reaches the level of specificity required for a waiver."  The court finds that "it appears that the document requested includes more detail than that contained in the speeches and interviews cited by Plaintiff."

• Exemption 1, Glomar Response:  The court "finds that Defendant's partial Glomar response was justified under Exemption One."  The court agrees with defendant's argument that "disclosing whether or not OLC provided a legal opinion to a specific agency itself discloses which agencies considered targeting al–Awlaki, were involved in the decision to do so, or carried out the operation."

• Exemption 3:  The court finds that Exemption 3 was properly applied to the DoD memorandum.  The court notes that "[t]he relevant portion of the [National Security Act] provides, 'The Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.'"  The court finds that "[i]t is well settled that this provision is an exempting statute within the meaning of Exemption Three."  The court also notes that "[t]he CIA Act exempts from disclosure the 'functions' of its personnel."  The court finds that "[t]he CIA Act has also been recognized as an exemption statute for purposes of Exemption Three."

The court also finds that "to the extent that the Glomar response pertains to the CIA, . . . it is also justified by the CIA Act under Exemption Three."  However, the court finds that "[i]t is not clear how disclosure of which agencies received advice from the OLC regarding the targeted killing of al–Awlaki could improperly disclose intelligence sources and method[s] protected by the NSA."  But "as discussed above, the Court finds that the Glomar response is justified in full by Exemption One," and therefore, "the Court need not decide whether it is also justified by the NSA under Exemption Three."

• Exemption 5, Deliberative Process Privilege:  The court "finds that the requested memorandum is protected by the deliberative process privilege."  The court rejects plaintiff's argument "that the government has actually adopted the reasoning in the DOD memorandum and therefore cannot withhold it pursuant to the deliberative process privilege."  The court finds that "the speeches, press conferences and interviews cited by Plaintiff do not refer to specific OLC advice."  The court further holds that "[s]tating that the President has provided Congress with OLC advice 'related to the subject of' the White Paper is far from an express adoption of the analysis in the DOD memorandum."  Nor did plaintiff provide "other public statements regarding OLC memoranda prepared for the DOD or any other agency."

• Exemption 5, Attorney-Client Privilege:  The court "finds that the requested memorandum is protected by the attorney-client privilege."  The court notes that "[p]laintiff does not dispute that the attorney-client privilege applies to the DOD memorandum," but "[i]nstead, . . . reiterates its argument that the government has waived the privilege because it has adopted the memorandum as policy," and also argues "that the government waived the privilege when it disclosed the memorandum to Congress."  The court addresses both arguments, first holding that "the standard of adoption for purposes of waiving the attorney-client privilege is the same as for the deliberative process privilege," and, "[a]s discussed [in the context of the deliberative process privilege], the government has not adopted the DOD memorandum as policy."  Second, the court holds that "'to the extent that Congress has reserved to itself in section 552(c) the right to receive information not available to the general public, and actually does receive such information pursuant to that section (whether in the form of documents or otherwise), no waiver occurs of the privileges and exemptions which are available to the executive branch under the FOIA with respect to the public at large.'"  The court notes that to hold otherwise "would be 'at odds with public policy which encourages broad congressional access to governmental information.'"

• Litigation Considerations, In Camera Inspection:  The court finds that "in camera review of the memorandum is not required" because "the Court finds that any OLC memoranda are protected from disclosure by Exemption Five."