Privilege Protects OLC Legal Memo Authorizing FBI’s Phone Records Collection

In another privilege-related victory for the Obama Administration, the Court of Appeals for the D.C. Circuit ruled that the deliberative process privilege protects from disclosure an Office of Legal Counsel memorandum authorizing the FBI’s collection of calling records froOLCm telephone companies without a subpoena.  Electronic Frontier Foundation v. Dep’t of Justice, No. 1:11-cv-00939 (D.C. Cir. Jan. 3, 2014).  You may access the opinion here.

Background

The FBI may use “national security letters” to subpoena telephone records that it certifies are connected to an authorized national security investigation.  See 12 U.S.C. § 3414(a)(5)(A).  In 2007, the Office of Inspector General (OIG) issued an investigative report  finding that the FBI used so-called “exigent letters” to obtain phone records without certifying that the requested records were part of an authorized investigation.

During a second OIG investigation, the FBI’s General Counsel sought legal advice about the FBI’s use of exigent letters to obtain phone records without a subpoena.  The OIG’s January 2010 investigative report stated that the OLC’s legal memorandum provided authority for the FBI’s collection of records from telephone-service providers “without legal process or qualifying emergency” and notwithstanding the Electronic Communication Privacy Act.

Electronic Frontier Foundation, a self-described organization providing the “first line of defense” when “freedoms in the networked world come under attack,” sought the OLC Legal Memo through a FOIA request, and filed suit when the Justice Department refused to produce it.  The DOJ asserted, in part, that the deliberative process privilege protected the OLC memo from disclosure.

Deliberative Process Privilege

The deliberative process privilege protects from discovery (and FOIA requests) documents reflecting opinions, recommendations, and deliberations that are part of the governmental agency decision-making process. The privilege protects only documents that are both deliberative—reflecting the back-and-forth of the deliberation process—and predecisional.

Agency legal opinions generally fall within two categories.  One is the “working law,” which includes legal opinions supplying the basis for an agency policy or decision actually adopted. The deliberative process privilege does not apply to working law documents, and courts require agencies to disclose these documents, including binding agency opinions and interpretations that the agency actually applies.

The second category includes agency legal opinions that concern the advisability of an agency policy but stop short of stating or determining that policy. The deliberative process privilege protects these legal memoranda from disclosure because they are part of the give-and-take of the consultative process that the privilege was designed to protect.

Ruling

The court ruled that the OLC legal memo did not fall within the “working law” category because the OLC did not have authority to establish FBI policy.  A legal advisor’s final legal opinion is not equivalent to the agency’s final decision and, here, the OLC’s legal memo simply provided legal advice that the FBI considered but ultimately did not adopt.  Accordingly, the deliberative process privilege protected the OLC legal memo from a FOIA disclosure.

String of Victories

The Electronic Frontier decision represents another victory for the Justice Department in protecting OLC legal opinions from disclosure.  As detailed in this PoP Post, a court ruled on January 7, 2013 that the privilege precluded the New York Times’ attempt to obtain an OLC legal memo allegedly supporting President Obama’s January 2012 recess appointment of Richard Cordray as CFPB Director.   And as described in this PoP Post, in a January 2, 2013 decision, a court ruled that the Justice Department may withhold an OLC legal memo prepared for Attorney General Eric Holder that allegedly provided legal support for a U.S. program targeting terrorists, including U.S. citizens, for assassination.

Court Imposes Strict Privilege-Log Standards for Deliberative Process Privilege

As discussed in an earlier post, courts are increasingly finding privilege waiver when a party either fails to submit a privilege log or submits an insufficient one.  And a Delaware court has now elevated the privilege-log requirements when a governmental agency asserts the deliberative process privilege.  State Dep’t of Transp. v. Figg Bridge Engineers, Inc., 2013 WL 5365384 (Del. Super. Ct. Aug. 13, 2013). You may access the opinion here.

In Figg, the Delaware DepartmentSlide1 of Transportation asserted the deliberative process privilege in an effort to preclude production of a retained investigator’s analysis of a bridge-embankment failure.  In a ruling profiled in an earlier post, the court refused to recognize the deliberative process privilege.  But the court nevertheless scolded the government agency for its insufficient privilege log.

The Figg court stated that privilege logs must include sufficiently detailed descriptions “so that someone can actually assess whether it makes sense to challenge the document.”  For the deliberative process privilege, it must include—

  1.  The date of each communication;
  2. The parties to the communication, including both names and positions;
  3. The attorneys involved; and
  4. The subject matter of each communique sufficient to show why the privilege is warranted, as well as whether it pertains to the decision or decisions in question, including the facts to bring each document within the narrow reach of the privilege.

The court stated that, in essence, the privilege log must contain information to show that each document is “both pre-decisional and deliberative.”  In other words, the government agency’s privilege log must include enough information to allow the court to determine how each document fits into the deliberative process.  Boilerplate language and conclusory statements do not meet these strict requirements.

The Department of Transportation included dates and descriptions of the putatively privileged documents, with the descriptions including “analysis of,” “analysis of embankment failure report,” “discussion of,” “notes and handouts,” “draft of,” and “notes of.”  The court found these descriptions inadequate because they did not provide sufficient detail or explanation to identify the deliberative material.  And the court emphasized that the government agency must provide a sufficient description for each document, suggesting that the agency lacked good faith because it cut and paste some of the privilege-log entries.

Delaware Court Rejects Deliberative Process Privilege

The Delaware Superior Court rejected the state Department of Transportation’s request that it recognize a common-law deliberative process privilege.  This rejection came despite the court previously adopting the closely related chief executive communications privilege.  State Dep’t of Transp. v. Figg Bridge Engineers, Inc., 2013 WL 5365384 (Del. Super. Ct. Aug. 13, 2013).  You may access the opinion here.

Background

Figg Bridge Engineers, Inc. contracted with DelDOT to design a new bridge crossing the Indian River Inlet.  Figg then subcontracted with AMEC, a geotechnical engineering firm, to conduct an assessment and study

Indian River Inlet Bridge

Indian River Inlet Bridge

of the roadway and bridge structure.  Figg, using AMEC’s study data, designed earthen embankments for the roadway approaches.  These embankments later failed causing delays in the bridge-building process.

DelDOT retained an engineering firm (OCL) to investigate, and OCL retained Golder Associates, Inc., a geotechnical engineering firm, to assist.  DelDOT later sued Figg and AMEC over AMEC’s alleged errors and omissions, and AMEC subpoenaed documents from non-party Golder.  DelDOT opposed the subpoena, arguing that the deliberative process privilege protected Golder’s investigatory documents from discovery.

Deliberative Process Privilege

Often misleadingly called the “executive privilege,” the deliberative process privilege protects from discovery (and public records requests) documents reflecting opinions, recommendations, and deliberations that are part of the governmental agency decision-making process.  The privilege protects only documents that are both deliberative—reflecting the back-and-forth of the deliberation process—and predecisional.  The privilege is qualified, meaning that a party may overcome the privilege upon a sufficient showing of need.

Ruling

The court looked to Delaware Rule of Evidence 508(b), accessible here, to determine whether a common-law deliberative process privilege should exist.  The court noted that, in Guy v. Judicial Nominating Comm’n, 659 A.2d 777 (Del. 1995), it recognized a common-law evidentiary privilege protecting gubernatorial communications with his staff.  But the court noted

Delaware Superior Court Sussex County Courthouse

Delaware Superior Court Sussex County Courthouse

that no court had similarly recognized the closely related deliberative process privilege.

The court also found persuasive the New Mexico Supreme Court’s opinion in Republican Party of New Mexico v. New Mexico Taxation & Revenue Dep’t, 283 P.3d 853 (N.M. 2012), recognizing a chief executive communications privilege but rejecting a deliberative process privilege.  PoP profiled the New Mexico Supreme Court’s ruling in this post, and this one.

PoP Analysis

Other than concern over the “fundamental unfairness” of permitting executive agencies to avoid producing documents that a private plaintiff would have to produce, the court provided little analysis for its rejection of the deliberative process privilege.  The court simply reasoned that it would not apply the privilege because no Delaware precedent supported it.

But the lack of precedent arguably does not close the door to common-law development.  Delaware Rule of Evidence 501 provides that evidentiary privileges include those adopted by “court decision.”  This language appears as compromise wording combining the Federal Rule of Evidence 501, which permits common law development, and Uniform Rule of Evidence 501, adopted by many states, which does not permit common-law development.  New Mexico, the state upon which the Delaware court relied, follows the URE terminology prohibiting common-law privilege development. See N.M.R.A., Rule 11–501.

Delaware’s “court decisions” language essentially means the common law, which allows evolving concepts rather than static, never-changing law.  Contrary to New Mexico, Delaware courts have authority to recognize a new privilege or modify an existing privilege should the merits warrant. But the Figg court did not discuss this possibility.