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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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THE NEW YORK TIMES COMPANY and
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:
CHARLIE SAVAGE,
Plaintiffs, :
:
-v:
:
:
THE UNITED STATES DEPARTMENT OF
JUSTICE,
:
Defendant. :
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14-CV-3777 (JPO)
OPINION AND ORDER

J. PAUL OETKEN, District Judge:
Plaintiffs Charlie Savage and the New York Times Company (collectively “the Times”)
bring this action against Defendant the United States Department of Justice (“DOJ”) under the
Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). The Times seeks information related to
DOJ’s investigation into the destruction of videotapes of CIA interrogations and into the deaths
of detainees in CIA custody. The parties have cross-moved for summary judgment on the
question of whether the requested documents are exempt from disclosure under FOIA Exemption
Five, 5 U.S.C. § 552(b)(5) (“Exemption Five”). For the reasons that follow, DOJ’s motion is
granted in part and the Times’s motion is granted in part.
I.

Introduction
In January 2008, then-Attorney General Michael Mukasey opened a criminal

investigation into the destruction by CIA personnel of videotapes of detainee interrogations. He
appointed John Durham, then an Assistant United States Attorney (“AUSA”) in Connecticut, to
lead the investigation. Durham promptly assembled a team of AUSAs and FBI agents to help
him interview potential witnesses, gather evidence, and determine whether criminal charges were
warranted.

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After two years of investigating, Durham produced a 1,037-page report describing his
results (the “Tape Destruction Report”). He recommended that criminal charges not be brought
in connection with the destroyed interrogation tapes. DOJ announced Durham’s
recommendation in a brief press release in November 2010. (Declaration of Douglas Hibbard,
Ex. E-1.) Durham then continued to investigate whether any potential witnesses had lied to him,
to his team, or to a grand jury during the course of his investigation into the tapes. In 2012,
Durham sent a memo to the Deputy Attorney General with his recommendations (the
“Obstruction Memo”). Those recommendations were never made public.
In addition to investigating the destroyed tapes, Durham also conducted a separate
investigation into whether anyone had violated federal law in connection with CIA interrogations
“overseas.” (Declaration of Douglas Hibbard, Ex. F (“June 2011 AG Statement.”)) Durham
began that investigation in April 2009 at the direction of Attorney General Eric Holder. (Id.)
The investigation led to two “interim reports,” two “supplemental reports,” and a “final
recommendation report.” (Def.’s Mot. Summ. J. (“DOJ Memo”), at 4.) The Final
Recommendation Report (dated May 26, 2011) “discussed the strengths and weaknesses of the
facts and evidence uncovered in the course of the preliminary reviews, the potential applicability
of various criminal statutes against that evidence, and ultimately why no full criminal
investigations should be pursued with the exception of [two matters].” (Declaration of John
Durham (“Durham Decl.”) ¶ 14.) The Supplemental Reports (dated December 14, 2010, and
May 26, 2011) “provided additional detail to support [Durham’s] recommendation that full
criminal investigations be opened to further examine the circumstances surrounding the deaths of
two individuals who were in United States custody overseas at the time they died.” (Durham
Decl. ¶ 15.)

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On June 30, 2011, Attorney General Holder issued a statement announcing a full criminal
investigation into the two deaths, as recommended by Durham:
On Aug. 24, 2009, based on information the Department received pertaining to alleged
CIA mistreatment of detainees, I announced that I had expanded Mr. Durham’s mandate
to conduct a preliminary review into whether federal laws were violated in connection
with the interrogation of specific detainees at overseas locations. I made clear at that
time that the Department would not prosecute anyone who acted in good faith and within
the scope of the legal guidance given by the Office of Legal Counsel regarding the
interrogation of detainees. Accordingly, Mr. Durham’s review examined primarily
whether any unauthorized interrogation techniques were used by CIA interrogators, and if
so, whether such techniques could constitute violations of the torture statute or any other
applicable statute.
In carrying out his mandate, Mr. Durham examined any possible CIA involvement with
the interrogation of 101 detainees who were in United States custody subsequent to the
terrorist attacks of September 11, 2001, a number of whom were determined by Mr.
Durham to have never been in CIA custody. He identified the matters to include within
his review by examining various sources including the Office of Professional
Responsibility’s report regarding the Office of Legal Counsel memoranda related to
enhanced interrogation techniques, the 2004 CIA Inspector General’s report on enhanced
interrogations, additional matters investigated by the CIA Office of Inspector General,
the February 2007 International Committee of the Red Cross Report on the Treatment of
Fourteen ‘High Value Detainees’ in CIA Custody, and public source information.
Mr. Durham and his team reviewed a tremendous volume of information pertaining to the
detainees. That review included both information and matters that had never previously
been examined by the Department. Mr. Durham has advised me of the results of his
investigation, and I have accepted his recommendation to conduct a full criminal
investigation regarding the death in custody of two individuals . . . .
(June 2011 AG Statement.) The statement concluded: “[T]he Department needed to thoroughly
examine the detainee treatment issue. I am confident that Mr. Durham’s thorough review has
satisfied that need.” (Id.)
DOJ then opened an investigation into the deaths, again led by Durham’s team. (DOJ
Memo, at 4.) Each time the team interviewed someone, an FBI agent prepared an FD-302 form.
An FD-302 is a standardized document for memorializing a witness interview. Durham edited
the forms for the interviews that he attended. In 2012, Durham sent two memoranda to the

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Attorney General recommending that no charges be brought in connection with the deaths in
CIA custody (the “Declination Memoranda”).
On August 30, 2012, DOJ issued a press release announcing that it would not be filing
criminal charges in connection with the two deaths. (Declaration of Douglas Hibbard, Ex. G
(“August 2012 AG Statement.”)) This press release included a three-paragraph section entitled
“Background on Investigation” and a five-paragraph statement by Attorney General Holder. The
Background section included the following:
On Aug. 24, 2009, based on information the Department received pertaining to alleged
CIA mistreatment of detainees, Attorney General Holder announced that he had
expanded Mr. Durham’s mandate to conduct a preliminary review into whether federal
laws were violated in connection with the interrogation of specific detainees at overseas
locations. Attorney General Holder made clear at that time, that the Department would
not prosecute anyone who acted in good faith and within the scope of the legal guidance
given by the Office of Legal Counsel regarding the interrogation of detainees . . . .
In June of last year, the Attorney General announced that Mr. Durham recommended
opening full criminal investigations regarding the death of two individuals while in
United States custody at overseas locations, and closing the remaining matters. The
Attorney General accepted that recommendation. Today, the Attorney General
announced that those two investigations conducted over the past year have now been
closed.
(Id.) Attorney General Holder’s statement included the following:
AUSA John Durham has now completed his investigations, and the Department has
decided not to initiate criminal charges in these matters. In reaching this determination,
Mr. Durham considered all potentially applicable substantive criminal statutes as well as
the statutes of limitations and jurisdictional provisions that govern prosecutions under
those statutes. Mr. Durham and his team reviewed a tremendous volume of information
pertaining to the detainees. That review included both information and matters that were
not examined during the Department’s prior reviews. Based on the fully developed
factual record concerning the two deaths, the Department has declined prosecution
because the admissible evidence would not be sufficient to obtain and sustain a
conviction beyond a reasonable doubt.
During the course of his preliminary review and subsequent investigations, Mr. Durham
examined any possible CIA involvement with the interrogation and detention of 101
detainees who were alleged to have been in United States custody subsequent to the
terrorist attacks of September 11, 2001. He determined that a number of the detainees
were never in U.S. custody. Mr. Durham identified the matters to include within his
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review by examining various sources including the Office of Professional
Responsibility’s report regarding the Office of Legal Counsel memoranda related to
enhanced interrogation techniques, the 2004 CIA Inspector General’s report on enhanced
interrogations, additional matters investigated by the CIA Office of Inspector General,
the February 2007 International Committee of the Red Cross Report on the Treatment of
Fourteen ‘High Value Detainees’ in CIA Custody, and public source information.
Mr. Durham and his team of agents and prosecutors have worked tirelessly to conduct
extraordinarily thorough and complete preliminary reviews and investigations. I am
grateful to his team and to him for their commitment to ensuring that the preliminary
review and the subsequent investigations fully examines a broad universe of allegations
from multiple sources. I continue to believe that our Nation will be better for it.
(Id.) The Attorney General concluded: “I asked Mr. Durham to conduct this review based on . . .
information and matters presented to me that I believed warranted a thorough examination of the
detainee treatment issue. I am confident that Mr. Durham’s thorough reviews and determination
that the filing of criminal charges would not be appropriate have satisfied that need.” (Id.)
The present lawsuit arises from FOIA requests related to Durham’s investigations. On
April 11, 2013, the Times submitted two FOIA requests to DOJ. The first asked for “any reports
to the attorney general or deputy attorney general describing or presenting findings” from the
Durham investigations. (Declaration of David E. McCraw, Ex. N.) The second asked for “all
FBI FD-302 reports summarizing interviews conducted as part of [Durham’s investigations].”
(Id. at Ex. P.) To date, DOJ has neither acted on nor denied these requests. The Times filed this
suit on March 28, 2014.
II.

Discussion
The parties dispute both the proper legal standard governing Exemption Five cases and

the application of that standard to the documents at issue here. But they do not dispute the facts.
The Court will first determine the proper legal standard regarding the disputed issues and will
then apply that standard to the five sets of documents in this case.

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A.

Legal Standards

Summary judgment shall be granted when “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). Both
parties move for summary judgment and neither party disputes the facts, so the question is which
party prevails as a matter of law with respect to each set of documents.
“Upon request, FOIA mandates disclosure of records held by a federal agency . . .
unless the documents fall within enumerated exemptions.” Dep’t of Interior v. Klamath Water
Users Protective Ass’n, 532 U.S. 1, 8 (2001). “[D]isclosure, not secrecy, is the dominant
objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976). The exemptions,
then, are given a “narrow compass.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151
(1989). DOJ argues that the responsive documents are exempt from disclosure under Exemption
Five, which protects “inter-agency or intra-agency memorandums or letters which 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). This exemption incorporates “all the normal civil discovery privileges,” Hopkins v.
U.S. Dep’t of Hous. And Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991), with the addition of the
deliberative process privilege, which is unique to the government, see STEPHEN G. BREYER, ET
AL., ADMINISTRATIVE LAW AND REGULATORY POLICY 685 (6th

ed. 2006).

DOJ contends that all the documents sought here are attorney work product and that the
memoranda are protected by the deliberative process exception. The Times argues (1) that the
FD-302 reports are not work product and (2) that, although some of the responsive documents
are work product, they have been expressly adopted by DOJ and are, therefore, subject to
disclosure under FOIA. Because the parties do not dispute the scope of the deliberative process
privilege, the Court briefly outlines that privilege first.

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1.

Deliberative Process

The deliberative process privilege “rests on the obvious realization that officials will not
communicate candidly among themselves if each remark is a potential item of discovery and
front page news.” Klamath Water, 532 U.S. at 8–9 (2001). The privilege protects documents
that are “both predecisional and deliberative.” Grand Central P’ship, Inc. v. Cuomo, 166 F.3d
473, 482 (2d Cir. 1999) (internal quotation marks omitted). To be “predecisional,”
unsurprisingly, a document must “precede[] . . . the ‘decision’ to which it relates.” Id. To be
“deliberative,” it must be “actually . . . related to the process by which policies are formulated.”
Id. Legal advice is covered no less than any other kind of advice. Brinton v. Dep’t of State, 636
F.2d 600, 604 (D.C. Cir. 1980). The parties agree that the memoranda are covered by the
deliberative process privilege and that the FD-302s are not.
2.

Work Product
a.

The Doctrine

The work product doctrine protects from discovery materials made by a lawyer or her
agent in anticipation of litigation. See generally CHARLES ALAN WRIGHT, ET AL., FEDERAL
PRACTICE & PROCEDURE §§ 2022–2024 (3d ed. 2014). Although discovery softens the
traditional adversary process, it was “hardly intended to enable a learned profession to perform
its functions either without wits or on wits borrowed from the adversary.” Hickman v. Taylor,
329 U.S. 495, 516 (1947) (Jackson, J., concurring). Thus, the core work product doctrine
protects “mental impressions, conclusions, opinions, or legal theories of an attorney” made in
anticipation of litigation. Fed. R. Civ. P. 26(b)(3).
Second Circuit law recognizes two kinds of work product: fact and opinion. In re Grand
Jury Subpoena Dated July 5, 2005, 510 F. 3d 180, 183 (2d Cir. 2007). Opinion work product—

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which, as its name suggests, constitutes counsel’s opinions regarding the litigation—is entitled to
greater protection than factual work product. Id.
Facts gathered by a party are to be evaluated on a “case by case” basis in the workproduct inquiry, with an eye to the “policy considerations” underlying the privilege. In re Grand
Jury Subpoena Dated Oct. 22, 2001, 282 F.3d 156, 160–61 (2d Cir. 2002). Those policy
considerations include protecting the ability of attorneys thoroughly to investigate and analyze
their cases without “scrimp[ing] on candor and completeness.” United States v. Adlman, 134
F.3d 1194, 1200 (2d Cir. 1998). The basic goal of the doctrine is to promote access to legal
services by allowing attorneys to function as advocates with a measure of privacy.
b.

Substantially Verbatim Witness Statements

As an initial matter, the Times argues that the FD-302 reports are “substantially verbatim
recital[s] of [] oral statement[s]” by witnesses and that, therefore, those documents are not work
product. (Pl.’s Opp. to Summ. J. (“Times Memo”), at 4.) DOJ argues that verbatim witness
accounts can be work product and that, at least where they are prepared by counsel in
anticipation of litigation, they are always work product. The first legal dispute between the
parties, then, is whether substantially verbatim witness statements are (1) never work product,
(2) always work product, or (3) sometimes work product and sometimes not.
The Times first argues, quoting McDaniel v. Freightliner Corp., No. 99-CV-4292 (RMB)
(FM), 2000 WL 303293, at *7 (S.D.N.Y. 2000) (Maas, M.J.), that “parties to a civil suit in
federal court may . . . obtain from their adversaries as of right any statement which would
constitute Jencks Act material in a criminal case.” Id. The Jencks Act requires disclosure of
“substantially verbatim” transcriptions of witness statements to criminal defendants. Id.
Therefore, the Times argues, DOJ must turn over any substantially verbatim statements in its
possession. But the Times has taken the McDaniel quote out of context. The civil rules allow a
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party (or non-party) to discover his own substantially verbatim statements. McDaniel, 2000 WL
303293, *8 (“A corporate party is also entitled to discover its prior statements.”). McDaniel is
inapposite.
Nonetheless, the Times offers some support for its contention that pure witness
statements cannot be work product. (Times Memo, at 5 (citing Young v. California, No. 05-CV2375 (JLS)(CAB), 2007 WL 2900539, at *1 (S.D. Cal. Oct. 1, 2007); Saunders v. United States,
316 F.2d 346, 350 (D.C. Cir. 1963) (Reed, J.)). In Young, the court held that the responses to
questionnaires sent by counsel to potential witnesses could not be work product because “[t]he
documents at issue are the verbatim statements of witnesses. They are the factual observations
of percipient witnesses, not the thoughts or impressions of counsel.” Young, 2007 WL 2900539,
at *1. In Saunders, the court held that, under the Jencks Act—which exempts work product from
its disclosure requirements—“it is possible to produce ‘statements’ taken down by an attorney,
and still preserve the sanctity of the attorney’s work product.” Saunders, 316 F.2d at 349–50.
The court went on to explain:
If a government attorney has recorded only his own thoughts in his interview
notes, the notes would seem both to come within the work product immunity and
to fall without the statutory definition of a ‘statement.’ But if the attorney has
made only a substantially verbatim record of his interview, then, quite the
contrary, his notes constitute a ‘statement’ and include no protected material
flowing from the attorney’s mental processes.
Id. at 350.
DOJ contends instead that Upjohn Co. v. United States, 449 U.S. 383, 400 (1981), holds
that witness interviews “are entitled to work product protection.” (DOJ Memo, at 9.) But
Upjohn held only that witness interviews are entitled to work product protection “because [they]
tend[] to reveal the attorney’s mental processes.” Id. at 399. Similarly, relying on Director,
Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304 (D.C. Cir. 1997), DOJ
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argues that interview notes that “merely record verbatim the contents of an interview” are work
product. (DOJ Memo, at 9.) But that case held only that the notes are protected if they reveal
the attorney’s mental impressions. In Vinson & Elkins,
Appellees argue[d], and the district court agreed, that a lawyer’s interview notes
are always opinion work product, undiscoverable without ‘extraordinary
justification.’ But this proposition goes too far. We recently observed that under
certain circumstances purely factual material embedded in attorney notes may not
deserve the super-protection afforded to a lawyer’s mental impressions.
Vinson & Elkins, 124 F.3d at 1307–08.
Still, DOJ contends that wherever the label “work product” is used in civil discovery, the
material is protected from FOIA disclosure. Thus, Vinson & Elkins, according to DOJ, supports
its case because there the court held that even interview notes constitute “fact work product,”
which is entitled to a lesser degree of protection, but is protected nonetheless. Id. at 1307. But
Vinson & Elkins arose in a context in which “[t]he parties [did] not dispute that the interview
notes are attorney work product.” Id. Here, in contrast, the parties very much dispute that
question. The D.C. Circuit in Vinson & Elkins held that what makes interview notes protected—
and the axis on which the strength of that protection is to be measured—is their capacity to
reveal an attorney’s mental processes.
The proper rule, then, is that witness statements are sometimes but not always work
product. They are work product when they reveal an attorney’s strategic impressions and mental
processes. This revelation could occur through the attorney’s mere selection of whom to
interview, even where the content of the interview may not be work product itself. Cf. Sporck v.
Peil, 759 F.2d 312, 315 (3d Cir. 1985) (holding that third-party documents can be work product
where “identification of . . . documents as a group will reveal defense counsel’s selection
process, and thus his mental impressions”). Accordingly, the question addressed below is
whether any of the FD-302s can be disclosed without revealing Durham’s mental processes.
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3.

Express Adoption

A document that would ordinarily be protected under Exemption Five loses its protection
if “the agency has chosen ‘expressly to adopt [it] or incorporate [it] by reference.’” Nat’l
Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 355 (2d Cir. 2005) (quoting NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 161 (1975)). The express adoption doctrine stems from the
simple principle that “adopt[ing] a legal position while shielding from public view the analysis
that yielded that position is offensive to FOIA.” Id. at 360 (quoting Nat’l Council of La Raza v.
Dep’t of Justice, 339 F. Supp. 2d 572, 587 (S.D.N.Y. 2004)). The parties dispute whether the
express adoption doctrine applies to the work-product doctrine. They also dispute the precise
requirements for “adoption” of a document in this context.
a.

Application of Express Adoption Doctrine to Work Product

The Second Circuit has not “reach[ed] the question of whether th[e] [express adoption]
doctrine would require the disclosure of otherwise exempt attorney work-product.” 1 Wood v.
F.B.I. et al., 432 F.3d 78, 84 (2d Cir. 2005) (Sotomayor, J.); see also Brennan Ctr. for Justice at
New York Univ. Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184, 192 n.10 (2d Cir. 2012). But
the Second Circuit has held that the doctrine trumps both the deliberative process privilege and
the attorney-client privilege. See La Raza, 411 F.3d at 355, 360; Brennan Center, 697 F.3d at
207. DOJ argues that the logic of the express adoption doctrine breaks down when it is applied

1

In Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967, 974 (7th Cir. 1977), the
Seventh Circuit appears to have applied the express adoption doctrine to the work product
doctrine, although, in that case, the court treated work product as a subset of the attorney-client
privilege. Id. (“With regard to the attorney-client privilege, [the express adoption] doctrine
applies where litigation is contemplated and the document represents attorney work product.
Where litigation is foreclosed as an option and the agency expressly chooses to make use of legal
memoranda in its final decision, this choice eliminates any claim of attorney work product
privilege for the expressly adopted document.”) (footnotes omitted).
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to the work-product doctrine. The Times argues, instead, that La Raza and Brennan Center
“compel[] that the doctrine be extended to work product as well.” (Times Memo, at 8.)
DOJ initially focuses on distinguishing the deliberative process privilege from the workproduct doctrine. The express adoption doctrine is premised, DOJ urges, on the observation that
an adopted document is no longer “predecisional” and, therefore, no longer protected. See Fed.
Open Mkt. Comm. v. Merrill, 443 U.S. 340, 360 n.23 (1979) (citing Sears, 421 U.S. at 160).
Because a document can be a “decision” and still be protected under the work-product doctrine,
some courts have held that that the logic of express adoption does not extend to work-product.
See Iglesias v. CIA, 525 F. Supp. 547, 559 (D.D.C. 1981); Exxon Corp. v. FTC, 476 F. Supp.
713, 726 (D.D.C. 1979) (Oberdorfer, J.).
But the Second Circuit has extended the express adoption doctrine to the attorney-client
privilege. And this brings the doctrine much closer to work product. DOJ’s principal grounds
for distinguishing work product from the attorney-client privilege in this context are (1) that
waiver and adoption are distinct concepts and (2) that opinion work product is “almost never
subject to waiver.” 2 (Def.’s Reply in Support of Summ. J., at 8.) DOJ’s first argument is correct
but inapposite. Although it is true that the exact metes and bounds of waiver doctrine and
express adoption doctrine need not be identical, the two concepts are related, as the Second
Circuit made clear in Brennan Center. See 697 F.3d at 207 (analogizing the express adoption
question to the “waiver” of attorney-client privilege). DOJ’s second argument is also correct to a
point, but also inapposite. Indeed, although opinion work product is difficult to waive, work-

2

Neither the Times nor DOJ appears to distinguish between waiver and forfeiture in this context.
The Court understands the parties to be discussing waiver as the term is traditionally—and
properly—used. “A waived claim or defense is one that a party has knowingly and intelligently
relinquished; a forfeited plea is one that a party has merely failed to preserve.” Foster v. Lee,
No. 13-CV-5857 (JPO), 2015 WL 786990, at *4 n.3 (S.D.N.Y. Feb. 25, 2015) (Oetken, J.)
(quoting Wood v. Milyard, 132 S.Ct. 1826, 1833 n.4 (2012)).
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product protection clearly can be waived—even opinion work product. E.g., John Doe Corp. v.
United States, 350 F.3d 299, 302 (2d Cir. 2003).
The attorney-client privilege and the work-product doctrine are, if not twins, at least very
close siblings. Both privileges exist to protect the public’s ability to access legal services. The
former does so by allowing a client to communicate frankly and openly with his or her counsel;
the latter by permitting the “lawyer [to] work with a certain degree of privacy.” Hickman, 329
U.S. at 510. The Second Circuit has held that “the principal rationale behind the attorney-client
privilege—to promote open communication between attorneys and their clients so that fully
informed legal advice may be given— . . . evaporates . . . once an agency adopts or incorporates
[a] document.” La Raza, 411 F.3d at 360. If publicly adopting a document vitiates the purposes
of the attorney-client privilege, it is hard to see why it ought not to do the same to the work
product doctrine. Similarly, if justifying agency action on the basis of a document shielded by
the attorney-client privilege is offensive to FOIA, it is hard to see why justifying the same action
on the basis of a document shielded by the work-product doctrine is not offensive. The Court
concludes, accordingly, that express adoption doctrine applies to the work-product doctrine.
b.

The Standard for Express Adoption

The next question is what an agency needs to do in order to be found to have expressly
adopted a document. Essentially, the agency must “adopt” the document in an “express”
manner. The question, then, is what precisely constitutes “express” and what is necessary for
“adoption.”
First, whatever “express” means in this context, it does not mean “express” as that term is
ordinarily used. Compare BLACK’S LAW DICTIONARY 661 (9th ed. 2009) (“Clearly and
unmistakably communicated; directly stated.”), with La Raza, 411 F.3d at 358 n.5 (“While the
Department urges us to adopt a bright-line test—whereby a document may be deemed expressly
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adopted or incorporated only in the event that an agency, in essence, uses specific, explicit
language of adoption or incorporation—such a test is inappropriate because courts must examine
all the relevant facts and circumstances in determining whether express adoption or incorporation
by reference has occurred.”), and Bronx Def. v. U.S. Dep’t of Homeland Sec., No. 04-CV-8576
(HB), 2005 WL 3462725, at *6 (S.D.N.Y. Dec. 19, 2005) (rejecting a requirement that “some
sort of magic language where the decision-making agency admits reliance” be used). The
agency need not even have explicitly mentioned any specific document in a public statement, so
long as its conduct, considered as a whole, manifests an express adoption of the documents. New
York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 116 (2d Cir. 2014), opinion amended on
denial of reh’g, 758 F.3d 436 (2d Cir. 2014), supplemented, 762 F.3d 233 (2d Cir. 2014), and
reh’g denied, 762 F.3d 233 (2d Cir. 2014).
Second, to adopt a document, an agency must rely, in a final decision, on both the
document’s conclusion and its reasoning. Merely adopting the conclusion of a document is
insufficient because “the public is vitally concerned with the reasons which . . . suppl[ied] the
basis for an agency policy.” Sears, 421 U.S. at 152; see also Wood, 432 F.3d at 84. This
coheres with the rationale underlying the express adoption doctrine. The government may not
rely on the legitimacy and authority that a document provides while keeping that document
secret.
Any agency faces a political or public relations calculation in deciding whether or
not to reference what might otherwise be a protected document in explaining the
course of action it has decided to take. In many cases, as here, the agency is not
required to explain its reasons publicly. Nonetheless, where it determines there is
an advantage to doing so by referencing a protected document as authoritative, it
cannot then shield the authority upon which it relies from disclosure.
Brennan Center, 697 F.3d at 205.

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The express adoption doctrine originally concerned pre-decisional documents
referenced in formal agency opinions, which were specifically subject to disclosure under
FOIA as the “working law” of the agency. See Sears, 421 U.S. at 153; Renegotiation Bd.
v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 170 (1975) (citing 5 U.S.C.
§ 552(a)(2)(A)). The Second Circuit, in Brennan Center, explicitly recognized that Sears
and Grumman in fact contemplated two distinct routes by which a document can lose its
privilege on the basis of agency action in this context. Documents lose privilege “(1) if
the[y] ha[ve] ‘operative effect’ and [are] therefore akin to ‘final opinions’—the
equivalent of ‘working law’ in Sears’s language; or (2) if the reports’ reasoning and
conclusions ha[ve] been adopted by the [Agency] in issuing its own decision—the
equivalent of ‘express adoption or incorporation by reference’ in Sears.” Brennan
Center, 697 F.3d at 198. In La Raza, the Second Circuit concluded that, where a series of
public statements by the Attorney General and other high-ranking DOJ officials made
clear that DOJ had “adopted [a] Memorandum as part of its policy,” that memorandum
lost its privileged status. La Raza, 411 F.3d at 359-60. The level of formality with which
DOJ adopted the document does not appear to be relevant. Id.; see also Coastal States
Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (“[A document] can
lose [privileged] status if it is adopted, formally or informally, as the agency position on
an issue or is used by the agency in its dealings with the public.”) (emphasis added).
Adoption, then, hinges on the extent to which an agency relies on the document’s
reasoning to justify its actions. See Elec. Frontier Found. v. U.S. Dep’t of Justice, 739
F.3d 1, 11 (D.C. Cir. 2014) (distinguishing Brennan Center, 697 F.3d at 204, and La
Raza, 411 F.3d at 357, on the ground that in those cases “the agency itself publicly
invoked the reasoning of the OLC memorandum to justify its new position.”). This
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consideration is more important than the specificity with which a particular document is
referenced. The touchstone of the express adoption inquiry is whether the agency uses
the reasoning contained in a document, and the authority provided by the document, to
“justify” its actions to the public. This principle guides the analysis of whether
references to a document were sufficiently “express” and whether those references
adopted that document’s “reasoning” rather than merely its conclusion.
B.

The FD-302 Reports

The Times requests copies of all the FD-302 reports generated in connection with
Durham’s investigations. DOJ contends that the reports are work product and that they are
therefore protected from disclosure. The Times responds by arguing that the FD-302s are not
work product. (The Times does not contend that the FD-302 reports were expressly adopted.)
As discussed above, whether the FD-302 reports are work product depends on whether
they reveal Durham’s mental impressions and strategic decisions about the investigation. The
mere selection of whom to interview reveals a great deal about Durham’s strategy. Similarly, the
questions he or his subordinates ask witnesses almost certainly reveal his thinking about the
substance of the case. It is impossible for DOJ to disclose the FD-302s without revealing
protected information about Durham’s case analysis and strategy. See Sporck, 759 F.2d at 315.
As such, the FD-302s are exempt from disclosure under FOIA Exemption Five.
C.

Memoranda

The parties agree that the all the memoranda sought in this case are covered by the work
product doctrine and are therefore within Exemption Five of FOIA. The only question, then, is
whether the express adoption doctrine applies.

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1.

Tape Destruction Report

The public statement announcing the closure of the tape destruction investigation reads,
in full:
In January 2008, Attorney General Michael Mukasey appointed Assistant United
States Attorney John Durham to investigate the destruction by CIA personnel of
videotapes of detainee interrogations. Since that time, a team of prosecutors and
FBI agents led by Mr. Durham has conducted an exhaustive investigation into the
matter. As a result of that investigation, Mr. Durham has concluded that he will
not pursue criminal charges for the destruction of the interrogation videotapes.
(Hibbard Decl. Ex. E-1.)
This statement is insufficient to adopt the reasoning of the Tape Destruction Report.
Indeed, DOJ did not publicly justify its decision not to pursue charges at all, let alone justify that
decision with the contents of an undisclosed memorandum. DOJ’s motion for partial summary
judgment that the Tape Destruction Report is protected by Exemption Five is therefore granted.
2.

The Obstruction Memo

DOJ has yet to publicly announce the results of the obstruction investigation at all, let
alone explain those results with reasoning from a secret document. Therefore, DOJ’s motion for
partial summary judgment that the Obstruction Memo is covered by Exemption Five is granted.
3.

The Recommendation Memoranda

The Attorney General announced the full criminal investigation into deaths in CIA
custody in June 2011. (June 2011 AG Statement.) That announcement went beyond earlier
public statements on the Durham investigation. The June 2011 press release described Durham’s
process, identified his sources, and concluded that Durham’s “thorough review ha[d] satisfied
th[e] need” for a DOJ investigation of detainee treatment. (Id.) The press release explicitly
stated that the Attorney General had “accepted [Durham’s] recommendation to conduct a full
criminal investigation” with respect to the deaths of two individuals in U.S. custody. (Id.) It
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also adopted Durham’s conclusion that “an expanded criminal investigation of the remaining
matters is not warranted.” (Id.) These statements were reiterated in the August 30, 2012 press
release.
The Court concludes that, taken in context, these statements trigger the express adoption
doctrine. The June 2011 press release presented the Durham investigation as DOJ’s authoritative
examination of “the detainee treatment issue.” (Id.) The release relied on Durham’s final
reports—and on his review of federal law—to justify the Attorney General’s decisions (1) to
launch a full criminal investigation with respect to two deaths and (2) to decline to further pursue
any other criminal investigation regarding detainee treatment. The Attorney General did not
have to invoke Durham’s legal analysis “to justify and explain the Department’s policy,” La
Raza, 411 F.3d at 358, nor did he have to frame Durham’s recommendation “as a basis for his
decision,” Montrose Chem. Corp v. Train, 491 F.2d 63, 70 (D.C. Cir. 1974) (“[O]nce adopted as
a rationale for a decision, the memorandum becomes part of the public record.”). But when he
did, he adopted Durham’s reasoning as his own.
In Sears, the Supreme Court wrote that “the public interest in knowing the reasons for a
policy actually adopted by an agency” supports disclosure. Sears, 421 U.S. at 161; see also La
Raza, 411 F.3d at 357. In La Raza, the Second Circuit rejected a “bright-line test” for express
adoption and instead endorsed a contextual approach to Exemption Five analysis. La Raza, 411
F.3d at 357 n.5. Under these precedents, Exemption Five does not apply when an agency refers
to a privileged document, and borrows that document’s legitimacy, to rationalize its public
decisions.
The Attorney General’s June 2011 statement manifested DOJ’s adoption of Durham’s
Final Recommendation Report and Supplemental Reports. Accordingly, DOJ’s motion for
partial summary judgment as to those memoranda is denied and the Times’s motion is granted.
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Because the two Interim Reports contained preliminary conclusions and appear to have been
superseded by the Final Recommendation Report, DOJ’s motion for summary judgment is
granted and the Times’s motion is denied as to the Interim Reports.
4.

The Declination Memoranda

The Attorney General also relied on Durham’s reasoning to justify his decision not to file
criminal charges in connection with deaths in custody. The press release announcing the
decision invoked the authority of Durham’s recommendation. (August 2012 AG Statement.)
Indeed, the release can be read as presenting the decision not to prosecute as fundamentally a
determination made by Durham. The statement reads:
AUSA John Durham has now completed his investigations, and the Department has
decided not to initiate criminal charges in these matters. In reaching this determination,
Mr. Durham considered all potentially applicable substantive criminal statutes as well as
the statutes of limitations and jurisdictional provisions that govern prosecution . . . .
(Id.) At the conclusion of the press release, the Attorney General again frames the determination
as follows:
I asked Mr. Durham to conduct his review based on existing information as well as new
information and matters presented to me that I believed warranted a thorough
examination of the detainee treatment issue. I am confident that Mr. Durham’s thorough
reviews and determination that the filing of criminal charges would not be appropriate
have satisfied that need.
(Id.)
The press release also cast Durham’s “extraordinarily thorough and complete”
investigation as the basis for the decision not to prosecute. Specifically, the Attorney General
said that, “[b]ased on the fully developed factual record concerning the two deaths, the
Department ha[d] declined prosecution because the admissible evidence would not be sufficient
to obtain and sustain a conviction beyond a reasonable doubt.” (Id.) To be sure, this is a fairly
general reason for declining to prosecute. However, there are a number of reasons DOJ could
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have decided not to prosecute anyone in connection with deaths in CIA custody. And DOJ
provided this as the reason for not prosecuting after listing the sources and legal benchmarks for
Durham’s investigation, describing the scope of his investigation, and ultimately adopting
Durham’s recommendations.
The Attorney General was not obliged to represent “Durham’s . . . determination” as the
basis for his decision. Situating the Declination Memoranda in this light rendered it
authoritative, conferring legitimacy on the Attorney’s General’s decision. Sears, La Raza, and
their progeny aim to capture this sort of incorporation by reference. See Sears, 421 U.S. at 152;
La Raza, 411 F.3d at 358, 361 (“[T]he Attorney General . . . made a practice of using the OLC
Memorandum to justify and explain the Department’s policy . . . . We cannot allow the
Department to make public use of the Memorandum when it serves the Department’s ends but
claim . . . privilege when it does not.”).
Because DOJ relied on Durham’s reasoning in explaining its decision not to prosecute,
the Court concludes that the Declination Memoranda were “expressly adopted” and are therefore
subject to disclosure under FOIA. Accordingly, DOJ’s motion for partial summary judgment as
to those memoranda is denied and the Times’s motion is granted.
The Court acknowledges that the application of the express adoption doctrine to
Durham’s memoranda in this case presents challenging questions. The Second Circuit’s decision
in La Raza was, in its own terms, decided “in light of all the facts and circumstances.” La Raza,
411 F.3d at 360. And there are distinctions between this case, on the one hand, and La Raza and
Brennan Center, on the other, that are arguably relevant. For example, memoranda of the Office
of Legal Counsel are authoritative in a way that the memoranda here are not―because OLC’s
advice constitutes binding authority within the executive branch. See United States v. Arizona,
641 F.3d 339, 385 n.16 (9th Cir. 2011) (“Office of Legal Counsel opinions are generally viewed
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as providing binding interpretive guidance for executive agencies and reflecting the legal
position of the executive branch.” (internal quotation marks, citations, and alterations omitted)),
aff’d in part, rev’d in part and remanded on other grounds, 132 S. Ct. 2492 (2012). But there is
no indication in La Raza and Brennan Center that the express adoption doctrine is limited to the
context of OLC opinions, and the Supreme Court’s decision in Sears indicates that it is not so
limited.
The Court has also considered whether the express adoption doctrine should apply to
decisions involving criminal prosecution, given the strong tradition of prosecutorial discretion, or
to decisions that involve specific facts rather than the sort of “policy” decisions addressed in La
Raza and Brennan Center. Again, however, the Second Circuit’s decisions do not appear to
support such a limitation on the doctrine, and such a limitation would seem to be undermined by
Sears (which involved NLRB charging decisions) and the Seventh Circuit’s Niemeier decision
(which involved the decision not to seek an indictment of President Nixon). Finally, the Court is
mindful of the concern that a robust express adoption doctrine could create incentives for public
officials to reveal less about the reasons for decisions, rather than more, arguably in tension with
the goals of FOIA. Nonetheless, for the reasons explained above, the Court concludes that a fair
reading of the Second Circuit’s case law makes the doctrine applicable here.
Of course, it might be the case that portions of the memoranda do not support—or even
explicitly concern—Durham’s reasoning regarding the sufficiency of the evidence or the
applicable federal law. Imagine, for example, that one section of the memorandum outlines why
Durham believes the evidence to be insufficient while another section outlines why Durham
believes prosecution to be inequitable or unwise for other reasons. DOJ should not be required
to disclose those portions of the memorandum that do not support the reasoning on which the
Attorney General publicly relied. Because DOJ has indicated that it will move for summary
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judgment on other FOIA exemptions if it does not prevail here, the Court need not, and does not,
decide whether the memoranda must be disclosed in their entirety. The parties are directed to
address this issue, if it is applicable, in the next round of briefing.
III.

Conclusion
For the foregoing reasons, DOJ’s motion for summary judgment is granted in part and

denied in part; and the Times’s motion for partial summary judgment is granted in part and
denied in part.
The parties are directed to confer and to submit a proposed briefing schedule on any
further motions on or before October 30, 2015.
The Clerk of Court is directed to close the motions at Docket Numbers 9 and 14.

SO ORDERED.
Dated: September 30, 2015
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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