Project on Gov’t Oversight v. DOJ, No. 20-1415, 2024 WL 4253164 (D.D.C. Sept. 20, 2024) (Berman Jackson, J.)

Project on Gov’t Oversight v. DOJ, No. 20-1415, 2024 WL 4253164 (D.D.C. Sept. 20, 2024) (Berman Jackson, J.)

Re:  Request for list of all OLC opinions from January 1, 1998 to present

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

• Exemption 5, Attorney-Client Privilege:      Although the court notes that “[h]ere, the agency invoked the attorney-client privilege, the deliberative process privilege, the attorney work-product privilege, and the presidential communications privilege,” the court addresses only the attorney-client privilege.  The court relates that “DOJ’s declarant explains that ‘[t]he principal function of OLC is to assist the Attorney General in his role as legal adviser to the President of the United States and to departments of agencies of the Executive Branch.’”  “The OLC ‘provides advice and prepares opinions addressing a wide range of legal questions involving the operations of the Executive Branch,’ and its legal advice and analysis ‘inform[s] the decisionmaking of executive branch officials.’”  The court finds that “[t]he documents involved here are lists of OLC opinions, and defendant has invoked the attorney-client privilege with respect to a small percentage of the opinions on the list, redacting ‘only the name of the recipient and the title or brief description of the relevant entries.’”  “The redactions amount to less than 4% of the 589 entries, in lists covering a period of twenty-one years.”  “According to the agency’s declarant, the opinions discussed in the entries ‘were authored by OLC attorneys and provided to OLC’s clients throughout the Executive Branch’ who sought confidential legal advice.”  “The titles that have been redacted are ‘more than just general subjects,’ but rather, they ‘identify the legal questions presented, often with specific reference to particular statutory provisions and subparts,’ and some of the descriptions ‘disclose the potential decisions under consideration by the client agency.’”  “Disclosure of the information contained in the redacted titles would therefore reveal a ‘particular client’s confidential request for legal advice on a particular matter at a particular time’ when paired with the identity of the client and the already-disclosed dates.”  “Given that the titles of certain documents on the lists, in conjunction with dates and client names, would reveal the subject matter of requests for advice, the Court finds that the redacted portions of the list fall within the scope of the attorney-client privilege.”  “The OLC ‘has been the most significant centralized source of legal advice within the Executive Branch.’”  “Even though plaintiff has not requested the OLC opinions themselves, the sworn declaration makes clear that disclosure of the few redacted titles, recipients, and dates together would reveal ‘a particular client’s confidential request for legal advice on a particular matter at a particular time,’ which fits squarely within the attorney-client privilege.”      “Because protecting the confidentiality of OLC’s legal advice ‘ensure[s] that the President, his advisers, and other Executive Branch officials continue to request and rely on frank legal advice from OLC and other government attorneys on sensitive matters,’ . . . the attorney-client privilege applies just as it would to any other attorney-client relationship and justifies the withholding of the information at issue.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court finds that “[t]he Department’s declarant avers that she ‘personally reviewed line-by-line the redacted information at issue to determine whether any further withheld portion or portions could be released without divulging information protected by one or more of the applicable FOIA exemptions and determined that the redacted portions do not contain reasonably segregable, nonexempt information.’”  “The declaration further states that the redacted material has not been publicly adopted, incorporated by reference by any policymaker, disclosed publicly, or otherwise referred to in the public for any waiver of the privileges to apply.”  “Plaintiff does not address segregability in any of its memoranda, but mentions it once in response to defendant's statement of material facts: it denies defendant’s statement that ‘[t]he redacted information does not contain reasonably segregable, nonexempt information,’ stating that this is ‘a legal issue in dispute.’”