17-2066 (L) 17-2069 (XAP)* To Be Argued By: DAVID. E. MCCRAW In the United States Court of Appeals For the Second Circuit O THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE, Plaintiffs-Appellees-Cross-Appellants, – v. – UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellant-Cross-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK *17-2069 was disposed on November 9, 2017 BRIEF FOR PLAINTIFFS-APPELLEESCROSS-APPELLANTS DAVID EDWARD MCCRAW THE NEW YORK TIMES COMPANY 620 Eighth Avenue New York, New York 10018 (212) 556-4031 Attorney for Plaintiffs-Appellees-Cross-Appellants APPELLATE INNOVATIONS (914) 948-2240 11603 CORPORATE DISCLOSURE STATEMENT The New York Times Company has no parent company. One publicly held corporation, Grupo Financiero Inbursa, S.A.B. de C.V., owns more than 10 percent of its stock through affiliated entities. i TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ......................................................... i TABLE OF CONTENTS .......................................................................................... ii TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ...............................................................................1 JURISDICTIONAL STATEMENT ..........................................................................3 COUNTER-STATEMENT OF THE ISSUE PRESENTED .....................................4 STATEMENT OF FACTS ........................................................................................4 A. The CIA Interrogation Investigation ................................................................4 B. The FOIA Request and First Motions for Summary Judgment .......................8 C. The Five Memoranda at Issue ........................................................................10 D. The Second Summary Judgment Motions......................................................11 SUMMARY OF ARGUMENT ...............................................................................15 ARGUMENT ...........................................................................................................16 I. IN DOING A DE NOVO REVIEW, THE COURT RESOLVES ALL DOUBTS IN FAVOR OF THE PLAINTIFF ...................................................16 II. THE GOVERNMENT HAS FAILED TO JUSTIFY WITHHOLDING THE FIVE MEMORANDA UNDER EXEMPTION 5 .............................................16 A. Express Adoption Sets Aside the Protection of Exemption 5 ........................18 B. The Five Memoranda Have Been Expressly Adopted or Incorporated by Reference ........................................................................................................22 C. DOJ Misconstrues the Legal Requirements for Express Adoption ...............32 D. Express Adoption Applies to Attorney Work-Product ...................................38 CONCLUSION ........................................................................................................49 ii TABLE OF AUTHORITIES Cases A. Michael’s Piano, Inc. v. FTC, 18 F.3d 138 (2d Cir. 1994) .................................38 Arthur Andersen & Co. v. IRS, 679 F.2d 254 (D.C. Cir. 1982)...............................17 Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184 (2d Cir. 2012)................................................................................. passim Bronx Defenders v. Dep’t of Homeland Security, No. 04 Civ. 8576 (HB), 2005 U.S. Dist. LEXIS 33364 (S.D.N.Y. Dec. 19, 2005) ....................................... 33, 34 Brotherhood of Locomotive Eng’rs v. Surface Transp. Bd., No. 96cv1153 (PLF), 1997 U.S. Dist LEXIS 11808 (D.D.C. July 31, 1997) .........................................47 Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) .......17 Common Cause v. IRS, 646 F.2d 656 (D.C. Cir. 1981) ...........................................36 Dep’t of Justice v. Reporters Comm. for the Freedom of the Press, 489 U.S. 749 (1989) ......................................................................................................................3 Dep’t of State v. Ray, 502 U.S. 164 (1991) .............................................................16 Federal Open Market Committee v. Merrill, 443 U.S. 340 (1979) .........................43 Halpern v. FBI, 181 F.3d 279 (2d. Cir. 1999) .........................................................16 N.Y. Times Co. v. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) ..................... 18, 19 Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157 (2004) ........................3 Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 350 (2d Cir. 2005) .... passim Nat’l Day Laborer Org. Network v. Immigration & Customs Enforcement, 827 F. Supp. 2d 242 (S.D.N.Y. 2011) ................................................................. 33, 34, 35 Nat’l Labor Relations Board v. Sears Roebuck & Co., 421 U.S. 132 (1975) . passim iii Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967 (7th Cir. 1977) 18, 21, 37, 46, 47 Norton v. Sam’s Club, 145 F.3d 114 (2d Cir. 1998) ................................................14 Rockwell Int’l Corp. v. U.S. Dep’t of Justice, 235 F.3d 598 (D.C. Cir. 2001) 39, 40, 41, 42 Taxation With Representation Fund v. IRS, 646 F.2d 666 (D.C. Cir. 1981)...........17 Thomas v. Roach, 165 F.3d 137 (2d Cir. 1999) .......................................................14 Tigue v. Dep’t of Justice, 312 F.3d 70 (2d Cir. 2002) ...................................... 16, 36 United States v. Greer, 285 F.3d 158 (2d Cir. 2000)...............................................14 United States v. Zichettello, 208 F.3d 72 (2d Cir. 2000) .........................................14 Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009) ..............................................................16 Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768 (D.C. Cir. 1988) ............18 Wood v. FBI, 432 F.3d 78 (2d Cir. 2005) ........................................................ passim Statutes 5 U.S.C. § 552 .................................................................................................. passim 5 U.S.C. § 701 ............................................................................................................3 28 U.S.C. § 1291 ........................................................................................................4 28 U.S.C. § 1331 ........................................................................................................3 50 U.S.C. § 3024 ......................................................................................................13 50 U.S.C. § 3507 ......................................................................................................13 iv Rules Fed. R. Civ. P. 26 .....................................................................................................44 Fed. R. Crim. P. 6.....................................................................................................13 Other Authorities Eric Schmitt, 4 Navy Commandos Are Charged in Abuse, N.Y. Times (Sept. 4, 2004) .....................................................................................................................13 Jane Mayer, A Deadly Interrogation, The New Yorker (Nov. 14, 2004) .................7 Peter Baker, CIA Chiefs Ask Obama to Abandon Abuse Inquiry, N.Y. Times, (Sept. 19, 2009) ...............................................................................................................31 Reed Albergotti and Vanessa O’Connell, Why Did Federal Prosecutors Drop Their Lance Armstrong Case?, Wall St. J. (Jan. 27, 2013) ..................................36 Report of the Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, S. Rep. No. 113-288 (Dec. 9, 2014) ...........................................................................................6 Scott Shane, No Charges Filed in Two Deaths Involving CIA, N.Y. Times (Aug. 31, 2012) ...............................................................................................................31 Scott Shane, Report Portrays a Broken CIA Devoted to a Failed Approach, N.Y. Times (Dec. 9, 2014) ..............................................................................................6 The Reporter’s Committee for Freedom of the Press, Interview with Former Attorney General Holder (Oct. 14, 2015) ...................................................... 12, 35 Washington Ideas Forum 2014, Interview: Eric Holder, Attorney General, U.S. Justice Dept. (Oct. 29, 2014) ................................................................................31 v PRELIMINARY STATEMENT In 2014, on the same December day that the Department of Justice was filing a district court brief in this case, the Senate Intelligence Committee was releasing the executive summary of its extraordinary investigation into the Central Intelligence Agency’s detention and interrogation program. What the committee found was deeply troubling—widespread evidence of the use of torture against detainees between 2001 and 2009, the death and serious injury of multiple detainees while in detention, the near-categorical ineffectiveness of those harsh interrogation techniques, the misleading and untruthful statements made by Central Intelligence Agency officials to Executive and Legislative Branch leaders, and, critically, the lack of any sort of legal or professional accountability for those responsible for these actions. Such unprecedented scrutiny of this dark chapter of American history reinforced the fundamental importance of permitting the public to be part of the now-global debate over the legality and propriety of the U.S. antiterrorism campaign in the years following September 11. At the core of this case is a single question: On what basis did the Department of Justice (“DOJ”) conclude that no one should be prosecuted for the torture and abuse of detainees, including the deaths of two men, one in Afghanistan and a second in Iraq? The five memoranda at issue are the only documents we know of that answer that question. In the simplest of terms, disclosure of the 1 memoranda will do precisely what the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., is intended to do: provide citizens with the information needed to assess critical decisions made by their Government and keep officials accountable for their decision-making. The district court carefully balanced the competing interests at stake here, and, by ordering judicious redaction of certain information, came to a judgment that would permit both protection of the governmental interests at stake and meaningful disclosure of critical materials to the public. On this appeal, DOJ once again argues for complete secrecy. It relies on FOIA’s Exemption 5, which shields deliberative material from disclosure, including documents covered by the attorney work-product privilege. In doing so, DOJ fails to acknowledge that by publicly relying on the five memoranda to justify its prosecutorial decisions, the government surrendered its right to Exemption 5 protection for these documents. DOJ could have chosen to say nothing about the rationale for its decision. Instead, in its public statements it held up the findings in the memoranda to justify its decision not to prosecute. At that point, under FOIA’s well-settled doctrine of express adoption or incorporation by reference, DOJ could no longer deny the public the right to see the memoranda that DOJ said explained its decision. 2 An action brought under FOIA is not determined on the basis of public interest, but the public interest remains at the steadfast core of the statute. “FOIA is often explained as a means for citizens to know ‘what their Government is up to’ . . . This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy.” Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 171-72 (2004) (quoting Dep’t of Justice v. Reporters Comm. for the Freedom of the Press, 489 U.S. 749, 773 (1989)). That is especially so in respect to the doctrine of express adoption or incorporation by reference, which prohibits the Government from keeping secret the rationale that an agency publicly relies upon in proclaiming the wisdom of its own decision. Whatever else the citizens in a democracy deserve, they are not required to stand by in darkness while their Government plays hide and seek with them. The judgment of the district court should be affirmed. JURISDICTIONAL STATEMENT The District Court had jurisdiction over this FOIA action brought by The New York Times Company and Charlie Savage (jointly, “The Times”) pursuant to 5 U.S.C. § 552(a)(4)(B), 28 U.S.C. § 1331, and 5 U.S.C. §§ 701-706. The district court entered final judgment on April 28, 2017. (Joint Appendix (“JA”) 357-58.) DOJ timely filed a Notice of Appeal on June 26, 2017. (JA 359.) This Court has jurisdiction pursuant to 28 U.S.C. § 1291. The Times cross-appealed on July 5, 3 2017 (JA 360), but subsequently withdrew that cross-appeal. The N.Y. Times Co. v. U.S. Dep’t of Justice, No. 17-2066 (2d Cir. Nov. 9, 2017) (order stipulating withdrawal of appeal pursuant to Federal Rule of Appellate Procedure 42). COUNTER-STATEMENT OF THE ISSUE PRESENTED Whether, as a result of DOJ’s public statements, DOJ is required under the express adoption doctrine to release in redacted form five memoranda that explain DOJ’s decision not prosecute any governmental employee or agent for torturing or abusing detainees. STATEMENT OF FACTS A. The CIA Interrogation Investigation In November 2005, the Central Intelligence Agency (“CIA”) destroyed 92 videotapes documenting some of the most controversial and severe interrogation techniques that the CIA had used on terrorism suspects in the aftermath of the September 11, 2001 attacks. (JA 46-48, 281-82.) In January 2008, Attorney General Michael Mukasey opened a criminal investigation into the destruction of those videotapes and appointed John Durham to lead the investigation (the “CIA Tapes Investigation”). (JA 281-82.) On August 24, 2009, Attorney General Eric Holder directed Mr. Durham to broaden his inquiry and conduct a preliminary investigation into whether the interrogations overseas violated federal law (the “CIA Interrogation 4 Investigation”). (JA 282.) It is that second-phase investigation that is at issue in this appeal. Mr. Durham worked with a team of lawyers and special agents from the Federal Bureau of Investigation (“FBI”) and examined whether a full criminal investigation should be commenced with respect to the treatment of each of the 101 detainees alleged to have been in U.S. custody following the September 11, 2001 attacks. (JA 63, 282.) When announcing the CIA Interrogation Investigation, Attorney General Holder publicly alluded to the importance of the investigation: “As Attorney General, my duty is to examine the facts and to follow the law. In this case, given all of the information currently available, it is clear to me that this review is the only responsible course of action for me to take.” (JA 65-66.) In 2011, Mr. Durham recommended closing the preliminary investigations into the abuse of 99 individuals, but recommended elevating the cases of two detainees into full investigations. (JA 63, 282-83.) Attorney General Holder accepted the recommendation. (JA 283.) In a public statement, Mr. Holder discussed the scope of Mr. Durham’s investigation, his key findings, and the sources that Mr. Durham relied upon. (JA 68-69.) Among other things, he said Mr. Durham had conducted the review with the understanding that no agents were to be held criminally liability for following legal guidance given to them and acting in good faith. (JA 68.) 5 The identities of the two detainees who became the focal points of Mr. Durham’s investigation—Gul Rahman and Manadel al-Jamadi—are hardly a secret even though the Government has treated them as such throughout this litigation. Mr. Rahman, whose case is described extensively in the U.S. Senate Select Committee on Intelligence’s “Committee Study of the [CIA]’s Detention and Interrogation Program” (the “Senate Torture Report”), died in November 2002 in a secret CIA black site in Afghanistan.1 He was a detainee and torture victim, according to the Senate Torture Report, which was released on December 9, 2014.2 The Senate report disclosed that he had been subjected to sensory overload, periods of total darkness, sleep deprivation, and other physical abuse; he ultimately froze to death.3 Manadel al-Jamadi died on November 4, 2003 at the notorious Abu Ghraib Prison in Iraq.4 His death became known worldwide a year later when photographs from Abu Ghraib showed his corpse as an American soldier, Sabrina Harman, 1 Report of the Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, S. Rep. No. 113-288, at 54-57 (Dec. 9, 2014), available at http://www.intelligence.senate.gov/sites/default/files/documents/CRPT113srpt288.pdf (discussing the Government’s treatment of Mr. Rahman); Scott Shane, Report Portrays a Broken C.I.A. Devoted to a Failed Approach, N.Y. Times (Dec. 9, 2014), https://www.nytimes.com/2014/12/10/world/senate-torture-report-shows-cia-infighting-overinterrogation-program.html?_r=0 (describing Mr. Rahman’s death at a secret CIA site in Afghanistan). 2 See Senate Torture Report, supra note 1, at 54. 3 Id. 4 Jane Mayer, A Deadly Interrogation, The New Yorker (Nov. 14, 2004), https://www.newyorker.com/magazine/2005/11/14/a-deadly-interrogation. 6 crouched nearby, grinning and giving the “thumbs up” sign.5 His death was ruled a homicide by the U.S. military.6 In addition to the three memoranda that led to Mr. Holder’s June 2011 public announcement (JA 68), Mr. Durham went on to prepare two later memoranda recommending that there be no indictments for the two detainee deaths. (JA 282-83.) Based on Mr. Durham’s memoranda, the Attorney General closed the CIA Interrogation Investigation on August 30, 2012, adopting Mr. Durham’s stated reason for not prosecuting: There was insufficient admissible evidence to obtain convictions. (JA 62-63, 283.) In accepting Mr. Durham’s rationale and conclusion, Attorney General Holder again discussed the scope of Mr. Durham’s investigation and the legal issues he had addressed. (JA 62-63, 284.) He cited Mr. Durham’s review of “all potentially applicable substantive criminal statutes as well as the statutes of limitations and jurisdictional provisions that govern prosecutions under those statutes” and the “tremendous volume of information pertaining to the detainees” that Mr. Durham and his team had reviewed. (JA 62-63.) Later DOJ would point to Durham’s work in response to questions raised about DOJ’s decision following the release of the Senate Torture Report and in a 5 6 Id. Id. 7 presentation by DOJ to a U.N. commission looking at the issue of torture. (JA 16769, 171-72.) B. The FOIA Request and First Motions for Summary Judgment On April 11, 2014, The Times submitted a FOIA request (the “Report Request”) to DOJ seeking “any reports to the attorney general or deputy attorney general describing or presenting findings” from Mr. Durham’s investigations.7 (JA 80.) DOJ neither produced the requested documents nor denied the Report Request. (JA 35.) The Times brought this action on May 28, 2014. (JA 3.) Subsequently, DOJ, in providing an index to the withheld materials to the district court, revealed that there were 18 memoranda responsive to The Times’s request. (See JA 137-38.) DOJ asserted that all of the memoranda could be withheld under various exemptions contained in FOIA. (See JA 137-38.) Pursuant to a Stipulation and Order entered on September 24, 2014, the parties agreed to limit their initial cross-motions for summary judgment to the threshold matter of whether the records requested were exempt in their entirety under FOIA Exemption 5 (5 U.S.C. §552(b)(5)), which applies to agency The Times submitted a second FOIA request on April 11, 2014 (the “302 Request”), seeking from DOJ “all FBI FD-302 reports summarizing interviews conducted as part of [Mr. Durham’s investigations].” (JA 85.) In an Opinion and Order dated September 30, 2015, the district court upheld DOJ’s full withholding of all documents responsive to the 302 Request under FOIA Exemption 5. (Special Appendix (“SPA”) 16.) The Times does not challenge the court’s decision on the 302 Request in this appeal. 7 8 deliberative materials. (JA 26-29.) All remaining exemptions were then to be litigated in a second round of summary judgment briefing if The Times prevailed, in full or in part, on the Exemption 5 issue. (See JA 26-29.) Following full briefing and oral argument, the district court ruled that five of Mr. Durham’s memoranda had been “expressly adopted” or “incorporated by reference” by Attorney General Holder and DOJ in public statements and therefore could not be withheld in full under Exemption 5. (SPA 18-20.) A document that would ordinarily be protected under Exemption 5 loses its protection if the agency has chosen expressly to adopt it publicly. (SPA 11.) The court relied on National Council of La Raza v. Department of Justice, 411 F.3d 350, 355 (2d Cir. 2005), which held “adopt[ing] a legal position while shielding from public view the analysis that yielded that position is offensive to FOIA.” (SPA 11.) The court pointed to, among other things, the June 2011 press release from DOJ that “described Durham’s processes, identified his sources, and concluded that Durham’s ‘thorough review ha[d] satisfied th[e] need’ for a DOJ investigation of detainee treatment.” (SPA 17.) In that release, Mr. Holder articulated the legal standard being applied in Mr. Durham’s inquiry: that no agents were to be charged criminally when they relied on the legal advice they were given. (JA 62.) The court also relied upon the public statement by Mr. Holder from August 2012, in which Mr. Holder revealed that Mr. Durham had concluded that the admissible evidence 9 could not sustain a conviction. (SPA 19.) The court noted that the statement provided “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.” (SPA 20.) The district court further noted, however, that discrete parts of the memoranda, those sections that “do not support—or even explicitly concern—Durham’s reasoning regarding the sufficiency of the evidence or the applicable federal law,” could still fall under Exemption 5. (SPA 21-22.) C. The Five Memoranda at Issue As a result of the district court’s decision, five memoranda remained at issue for the parties’ second round of summary judgment briefing and remain at issue on this appeal: i. The Preliminary Review Memorandum On May 26, 2011, Mr. Durham issued a report (the “Preliminary Review Memorandum”) to Attorney General Holder recommending that full criminal investigations be opened into the deaths of two individuals who died while in American custody overseas but that the remaining 99 investigations be dropped. (JA 282.) ii. The Two Recommendation Memoranda (and 11 Exhibits) 10 On December 14, 2010, and May 26, 2011, Mr. Durham submitted two reports (the “Recommendation Memoranda”) to support the Preliminary Review Memorandum. (JA 283.) On June 30, 2011, Attorney General Holder adopted in full Mr. Durham’s recommendations to open two criminal investigations and to refrain from further investigating the 99 remaining matters. (JA 283.) The Recommendation Memoranda also contained 11 exhibits that are “a collection of historical, procedural, factual and evidentiary records” (the “Recommendation Memoranda Exhibits”).8 (JA 271.) iii. The Two Declination Memoranda On March 14, 2012, and July 11, 2012, Mr. Durham submitted two reports—one for each killed detainee—detailing his recommendation to close the two criminal investigations (the “Declination Memoranda”). (JA 283.) On August 30, 2012, Attorney General Holder adopted those reports in a public statement and announced that the two criminal investigations were closed. (JA 283.) D. The Second Summary Judgment Motions Prior to the second round of motion practice, two notable events reframed the briefing. First were remarks made by Mr. Holder shortly after he left office. He spoke about the public good that would be served if Mr. Durham’s memoranda were some day made public: 8 One Recommendation Memorandum contains six exhibits and one Recommendation Memorandum contains five exhibits. (JA 278-79.) 11 I’d like to be able to just throw on the table, you know, all the work that was done by John Durham . . . and let people see, you know, how seriously we took the responsibility that we had to figure out whether or not criminal charges could be brought. . . . It was in essence a reinvestigation, it caused a great deal of dissention within the Department but I thought it was the appropriate thing to do. And yeah, if there were a way in which we could just, as I said, put it on the table and let people look at it in the same way if you get a chance to look at the Senate Report, I think that would be a good thing. On the other hand, there is this whole notion of grand jury secrecy, and I mean I understand that, you know, and there is a value in that. But I actually think that, with regard to this particular set of facts, that the need for grand jury secrecy is actually outweighed by the need for the nation to know that its leaders took this seriously, that we looked at conduct that’s inconsistent with who we say we are as a people, . . . and to explain why, as offended as we were, even given the factual findings that we were able to make, we were simply unable to make the cases. People need to know that. 9 Second, after a long delay, the Senate released the Senate Torture Report, the executive summary of its research into the use of torture in interrogations by the CIA.10 The Senate Torture Report discussed in detail the treatment of many of the detainees who were the subject of Mr. Durham’s investigations.11 It also included details about the death of Mr. Rahman.12 Because the Senate Report did not address CIA activities in Iraq, it did not discuss the al-Jamadi case, although The Reporter’s Committee for Freedom of the Press, Interview with Former Attorney General Holder (Oct. 14, 2015), https://www.youtube.com/watch?v=hnZ0SpJiAxE (quoted section beginning at 5:03). 10 See Senate Torture Report, supra note 1. 11 See id. 12 Id. at 54-57. 9 12 that had been addressed in previous government investigations.13 The Senate Torture Report also spoke to the importance of disclosure of the facts and circumstances surrounding this dark chapter in American history. In her Foreword to the Senate Report, Dianne Feinstein, Chairman of the Senate Select Committee on Intelligence, noted: The major lesson of this report is that regardless of the pressures and the need to act, the Intelligence Community’s actions must always reflect who we are as a nation, and adhere to our laws and standards. It is precisely at these times of national crisis that our government must be guided by the lessons of our history and subject decisions to internal and external review.14 In moving for partial summary judgment in the second round, DOJ asserted that parts of the five memoranda must be redacted under various FOIA exemptions: Exemption 1 (national security information), Exemption 3 (information that is confidential under the grand jury secrecy rules (Fed. R. Crim. P. 6(e)), the Central Intelligence Act, 50 U.S.C. § 3507, or the National Security Act, 50 U.S.C. § 3024); Exemption 5 (deliberative material); and Exemptions 6 and 7(c) (information constituting an unwarranted invasion of personal privacy). (See JA 253-64, 268-75, 281-85.) The Times cross-moved for partial summary judgment challenging DOJ’s reliance on those exemptions. (JA 286-87.) 13 See, e.g., Eric Schmitt, 4 Navy Commandos Are Charged in Abuse, N.Y. Times (Sept. 4, 2004), http://www.nytimes.com/2004/09/04/world/middleeast/4-navy-commandos-are-chargedin-abuse.html. 14 See Senate Torture Report, supra note 1, at v. 13 The district court granted in part and denied in part both motions. (SPA 48.) The court limited DOJ’s use of the privacy exemption to redactions of personally identifying information. (SPA 45.) The court rejected DOJ’s argument that grand jury secrecy applied to the Recommendation Memoranda (SPA 32), and, in respect to the Declination Memoranda, the court held that grand jury secrecy could not be used to shield information that “is related to an independent investigation conducted by Mr. Durham and not concerning matters occurring before the grand jury.” (SPA 33). By not challenging any of these portions of the district court’s judgment in its brief to this Court, DOJ has waived its right to raise them on appeal.15 As for Exemption 5, which does remain a live issue on appeal, the district court rejected DOJ’s argument that it could withhold the 11 exhibits to the Recommendation Memoranda. The court ruled that those exhibits fell within the express adoption doctrine set forth in the court’s first opinion because they were 15 See United States v. Greer, 285 F.3d 158, 170 (2d Cir. 2000) (failure to raise issue in brief constitutes waiver on appeal); United States v. Zichettello, 208 F.3d 72, 121 (2d Cir. 2000) cert. denied, 531 U.S. 1143 (2001) (“Ordinarily, failure to include an argument in the appellate brief waives the argument on appeal.”); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) cert. denied, 525 U.S. 1001 (1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”). Arguments raised for first time in a reply brief are waived. Greer, 285 F.3d at 170 n. 3; Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). 14 relied upon by Mr. Durham in arriving at his conclusions, which were then adopted by Mr. Holder. (SPA 47.)16 SUMMARY OF ARGUMENT When an agency expressly adopts or incorporates by reference a privileged document in justifying a decision to the public, the document loses the privilege that it otherwise would have under Exemption 5 of FOIA. This Court has already established that the attorney-client privilege may not be invoked to protect records expressly adopted by the Government, and there is no principled reason that this same rule should not also apply in the context of attorney work-product. Attorney General Holder publicly relied on Mr. Durham’s recommendations and reasoning to conclude, first, that only two cases of detainee abuse would be pursued with a full investigation, and, second, that those cases would be closed without prosecutions. In doing so, Attorney General Holder expressly adopted the workproduct of Mr. Durham. The Attorney General’s public statements revealed that the DOJ’s no-prosecution decisions were “justified and driven” by the rationale and conclusions contained in the five memoranda written by Mr. Durham, and on 16 The district court did approve certain other redactions. It concluded that DOJ could withhold the procedural background sections of the Recommendation Memoranda because those sections were not relevant to Mr. Durham’s reasoning and conclusions. (SPA 47.) The court also accepted DOJ’s argument that parts of all five memoranda could be withheld as national security information protected by Exemptions 1 and 3. (SPA 34-42.) 15 that basis the district court correctly found there to be express adoption or incorporation by reference of those memoranda. ARGUMENT I. IN DOING A DE NOVO REVIEW, THE COURT RESOLVES ALL DOUBTS IN FAVOR OF THE PLAINTIFF This Court reviews de novo a district court’s grant of summary judgment in FOIA litigation. See, e.g., Wilner v. NSA, 592 F.3d 60, 69 (2d Cir. 2009); Tigue v. Dep’t of Justice, 312 F.3d 70, 75 (2d Cir. 2002). The agency asserting an exemption to FOIA bears the burden of proof, and “all doubts as to the applicability of the exemption must be resolved in favor of disclosure.” Wilner, 592 F.3d at 69. FOIA’s underlying principles drive this standard of review. FOIA “adopts as its most basic premise a policy strongly favoring public disclosure of information in the possession of federal agencies.” Halpern v. FBI, 181 F.3d 279, 286 (2d. Cir. 1999). It “was enacted to facilitate public access to Government documents” and “was designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of State v. Ray, 502 U.S. 164, 173 (1991) (internal quotation marks and citation omitted). II. THE GOVERNMENT HAS FAILED TO JUSTIFY WITHHOLDING THE FIVE MEMORANDA UNDER EXEMPTION 5 16 The rationale for “express adoption or incorporation by reference”— which serves to set aside Exemption 5 privileges—was neatly laid out by this Court in Brennan Center for Justice at New York University School of Law v. U.S. Department of Justice, 697 F.3d 184, 205 (2d Cir. 2012): 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. . . [T]he agency is not required explain its reasons publicly. Nonetheless, where it determines there is an advantage to doing so by referencing a protected document as authoritative, it cannot shield the authority upon which it relies from disclosure. See also La Raza, 411 F.3d at 360 (endorsing the view that “adopt[ing] a legal position while shielding from public view the analysis that yielded that position is offensive to FOIA”); Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982) (“[E]ven if the document is predecisional at the time it is prepared, it can lose that 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.”) (internal quotation marks and citation omitted); Taxation With Representation Fund v. IRS, 646 F.2d 666, 678 (D.C. Cir. 1981) (noting that a document may lose Exemption 5 protection if it is adopted as the agency position or is used by the agency in its interactions with the public); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (same); Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967, 973 (7th Cir. 1977) (noting that with respect to a prosecutor’s 17 memorandum, “the policies underlying exemption five are not persuasive in supporting nondisclosure of the remainder of a memorandum which is relied upon in final disposition of a case”); see also N.Y. Times Co. v. Dep’t of Justice, 756 F.3d 100, 114 (2d Cir. 2014) (voluntary disclosures may waive otherwise valid FOIA exemptions). That case law applies squarely to the five Durham memoranda. A. Express Adoption Sets Aside the Protection of Exemption 5 Exemption 5 is grounded in the belief that agency employees may “play[] it safe” and “temper candor” in giving advice if they fear that their recommendations to agency decision-makers may later be disclosed. Nat’l Labor Relations Board v. Sears Roebuck & Co., 421 U.S. 132, 150-51 (1975) (internal citations omitted). Congress adopted Exemption 5 because “it recognized that the quality of administrative decision-making would be seriously undermined if agencies were forced to operate in a fish bowl.” Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 773 (D.C. Cir. 1988). But beginning with Sears, the courts recognized that there are important limiting principles to Exemption 5. As Brennan explains, Sears actually dealt with two related—and sometimes confused—doctrines, both of which are properly invoked to set aside Exemption 5 protections: working law and express adoption 18 (also known as incorporation by reference). Brennan, 697 F.3d at 197-98.17 Working law, which is not implicated in this case, refers to legal memoranda that are adopted by an agency and effectively become the intra-agency law guiding that agency’s activities, irrespective of whether the memoranda are relied upon in public statements. See id. Express adoption or incorporation by reference, on the other hand, occurs when a privileged document’s “reasoning and conclusions had been adopted by the [agency] in issuing its own decision.” Id. For there to be express adoption, the agency must do more than rely on a privileged memorandum’s conclusion. Wood v. FBI, 432 F.3d 78, 84 (2d Cir. 2005). Instead, the courts look for evidence that the agency adopted the reasoning of the memorandum. Id. The hallmark of express adoption or incorporation by reference is that the underlying document is held up as the “primary legal authority justifying and driving” an agency decision and used to persuade the public that the decision is “legally sound.” Brennan, 697 F.3d at 198-99 (quoting La Raza, 411 F.3d at 357-58). When evidence of that exists, the rationale for keeping a privileged memorandum secret evaporates. Sears, 421 U.S. at 161. Exemption 5 protection can also be lost through “official acknowledgement,” which arises from an agency’s public disclosure of protected information, usually in the context of national security information. See N.Y. Times, 756 F.3d at 113-14. The doctrine of official acknowledgement is not implicated here, but the N.Y. Times decision provides a useful discussion of how Exemption 5 protection may be surrendered, as the district court found. (See SPA 14.) 17 19 Sears arose from a practice at the NLRB whereby regional offices submitted draft charging decisions to the central office so the agency had an “opportunity to formulate a coherent policy, and to achieve some measure of uniformity, in enforcing the labor laws.” 421 U.S. at 141. A regional director would submit a memorandum that “set[] forth the facts of the case, a statement of the issues on which advice [was] sought, and a recommendation.” Id. The General Counsel’s office then drafted a memorandum that laid out a legal rationale and instructions for a final processing of the case. Id. at 142. To the extent those memoranda “embody the agency’s effective law and policy,” they were disclosable as working law. Id. at 153. The Sears Court “then addressed a separate path towards the loss of Exemption 5’s protection—whether predecisional and deliberative documents fall outside of that exemption if ‘adopt[ed] or incorporate[d] by reference’ into ‘what would otherwise be a final opinion,’ in other words, in a document that has already been found to be nonexempt.” Brennan, 697 F.3d at 196 (citing Sears, 421 U.S. at 160-61). Sears saw that the underlying policy justification for Exemption 5—the “government employee in the fish bowl” concern—ceases to be cognizable when an agency has expressly adopted the employee’s recommendation or advisory memorandum: 20 The probability that an agency employee will be inhibited from freely advising a decisionmaker for fear that his advice if adopted, will become public is slight. First, when adopted, the reasoning becomes that of the agency and becomes its responsibility to defend. Second, agency employees will generally be encouraged rather than discouraged by public knowledge that their policy suggestions have been adopted by the agency. Moreover, the public interest in knowing the reasons for a policy actually adopted by an agency supports [the decision to order disclosure]. Thus, we hold that, if an agency chooses expressly to adopt or incorporate by reference an intraagency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5. Sears, 421 U.S. at 161. The essence of the express adoption doctrine is captured in the idea of “incorporation by reference.” There is no requirement that the underlying privileged document be quoted at length. This Court has recognized that “referencing a protected document as authoritative” is enough to eliminate the protection of Exemption 5 for the underlying document. Brennan, 697 F.3d at 205. The Seventh Circuit has framed the issue in terms of a presumption: When an agency expressly relies on a document without fully reproducing it, a presumption in favor of disclosure arises and can only be overcome by the invocation of a FOIA exemption other than Exemption 5. Niemeier, 565 F.2d at 973. Both articulations are designed to advance a fundamental principle of governmental transparency: “Adopt[ing] a legal position while shielding from public view the analysis that 21 yielded that position is offensive to FOIA.” La Raza, 411 F.3d at 360 (internal quotation marks omitted). B. The Five Memoranda Have Been Expressly Adopted or Incorporated by Reference The district court closely analyzed the public statements made by DOJ. It found that two of Mr. Durham’s memoranda had not been expressly adopted. (SPA 17.) But as to the five memoranda still at issue, the court correctly concluded that they had been expressly adopted or incorporated by reference. (SPA 17-22.) Contrary to DOJ’s argument, (Brief of Appellant-Defendant-Cross-Appellee (“DOJ Br.”) 33-35), the courts do not require detailed references to the underlying privileged documents before finding express adoption or incorporation by reference. Brennan made that clear. At issue there was a document that addressed the legality of a requirement that organizations receiving funding from the U.S. Agency for International Development (“USAID”) prove that they had a policy of opposing prostitution and sex trafficking. Brennan, 697 F.3d at 204. A footnote in a guide produced by USAID stated that “a draft opinion [from DOJ] determined that this provision only may be applied to foreign non-governmental organizations and public international organizations because of the constitutional implications of applying it to U.S. organizations.” Id. Subsequently, a government official testified before Congress that DOJ “provided some tentative advice initially that those 22 restrictions should apply only to foreign organizations.” Id. There was no reference to any particular document in the testimony, and there were no public disclosures of the draft legal opinion beyond those two fleeting references. Yet this Court found that express adoption or incorporation by reference had occurred. Id. Those brief statements constituted express adoption because they held out the legal opinion as the “primary legal authority justifying and driving” the agency’s position. Id. at 198-99 (quoting La Raza, 411 F.3d at 358). Here the evidence of express adoption or incorporation by reference far exceeds the standard set in Brennan. On August 30, 2012, after receiving the five memoranda over the preceding two years, Attorney General Holder announced that the investigations would be closed in their entirety based on the “thorough reviews and determination that the filing of criminal charges would not be appropriate” by Mr. Durham. (JA 63.) In his public statement, he disclosed Mr. Durham’s rationale for concluding there should be no prosecutions—there was insufficient admissible evidence—and he discussed the details, scope, and focus of the investigation. The full extent of DOJ’s express adoption of Mr. Durham’s work-product is apparent in the statements included in the announcement (JA 62-63): • “In reaching this determination, Mr. Durham considered all potentially applicable substantive statutes as well as the statutes 23 of limitations and jurisdictional provisions that govern prosecutions under those statues. 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.” (JA 62-63.) • “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.” (JA 63.) • “Attorney General Holder made clear at th[e] 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.” (JA 62.) 24 • “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 CIA custody. Mr. Durham identified the matters to include with 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.” (JA 63.) • “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 25 review and the subsequent investigations fully examined a broad universe of allegations from multiple sources. I continue to believe that our Nation will be better for it.” (JA 63.) • “I asked Mr. Durham to conduct this 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.” (JA 63.) • “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.” (JA 63.) • “Our inquiry was limited to a determination whether prosecutable offenses were committed and was not intended to, and does not resolve, broader questions regarding the propriety of the examined conduct.” (JA 63.) Earlier, on June 30, 2011, Mr. Holder had issued another statement about the Durham investigation. (JA 68-69.) At that time, through three of the memoranda at issue here, Mr. Durham had recommended that full criminal investigations be opened into the deaths of the two detainees and that the other investigations end. (JA 282-83.) Mr. Holder accepted Mr. Durham’s recommendations in full and enlisted Mr. Durham to carry out the further investigations that he had 26 recommended. (JA 68-69.) Mr. Holder stated: “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. Those investigations are ongoing. The Department has determined that an expanded criminal investigation of the remaining matters is not warranted.” (JA 68.) He identified, by name, the various reports and documents Mr. Durham considered in the investigations. (JA 68.) More significantly, he articulated the standard that drove Mr. Durham’s decision: that there would be no criminal liability for agents who acted in accordance with legal guidance they had been given in advance. (JA 68.) Later, long after the conclusion of the Durham investigation, DOJ’s public reliance on the memoranda continued. In November of 2014, David Bitkower, the Deputy Assistant Attorney General for DOJ’s Criminal Division, addressed a United Nations panel to justify the depth and thoroughness of Mr. Durham’s investigation and conclusions. (See JA 167-69.) As reported by The New York Times in a story titled “U.N. Commission Presses U.S. on Torture,” Mr. Bitkower vigorously defended against assertions that Mr. Durham had failed to interview certain high-profile detainees who had been subject to torture, and even revealed the total number of witnesses interviewed in the course of the investigation and relied on in Mr. Durham’s reports: 96. (See JA 167-69.) 27 Then, after the release of the Senate Torture Report, DOJ reaffirmed its adoption of the rationale and conclusions contained in the Durham memoranda. (JA 171-72.) DOJ stated that Mr. Durham’s investigation had explored the use of enhanced interrogation techniques and “generated two criminal investigations, but the Department of Justice ultimately declined those cases for prosecution, because the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt.” (JA 171-72.) DOJ would have the Court believe that it did nothing more than “publicly announce[] its ultimate charging decisions” and that Mr. Holder referred only to Mr. Durham’s conclusions and not his reasoning. (See, e.g., DOJ Br. 27, 45.) The record cited here shows that is simply not true. (See JA 62-63, 68-69, 167-69, 17172.) DOJ’s reliance on Mr. Durham’s work-product was explicit, detailed, and unambiguous. Most significantly, Mr. Holder not only accepted Mr. Durham’s conclusion (there should be no prosecutions) but also adopted Mr. Durham’s rationale for not pursuing charges: “The Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.” (JA 63.) It is hard to imagine a more direct statement of a rationale for a decision not to prosecute, and the statement made clear that the decision to forgo criminal prosecution was not based on technical grounds 28 (jurisdiction or statute of limitations) or a determination that no wrongdoing had occurred or prosecutorial discretion or any other reason that might justify such a decision. DOJ repeated that rationale verbatim after the release of the Senate Torture Report. (See JA 172.) Mr. Holder also revealed that Mr. Durham had considered jurisdiction issues and the statute of limitations before concluding that there was insufficient admissible evidence. (JA 63.) Further, he revealed that there were factual problems in making the case, noting that Mr. Durham “determined that a number of the detainees were never in CIA custody.” (JA 63.) He also set out the parameters of Mr. Durham’s investigation: “Our inquiry was limited to a determination whether prosecutable offenses were committed and was not intended to, and does not resolve, broader questions regarding the propriety of the examined conduct.” (JA 63.) In both its 2011 and 2012 statements, DOJ articulated the guiding principle of Mr. Durham’s review: that he was to recommend prosecution only if he found that CIA agents or officials had failed to comply with the legal guidance they had been given in advance of the interrogations. (JA 62, 68.) DOJ is right that other statements contained in Mr. Holder’s announcements did not refer to Mr. Durham’s legal rationale and instead focused on the thoroughness of his investigation. But that observation only hurts DOJ’s position. La Raza and Brennan underscore that an agency engages in express adoption when 29 it uses the underlying privileged document to convince the public that its decision is “legally sound.” Brennan, 697 F.3d at 198 (quoting La Raza, 411 F.3d at 358). Those statements about the quality of Mr. Durham’s investigation were all of a piece with the statements revealing his rationale. They were meant to assure the public that DOJ had a “legally sound” basis for the controversial decision it was making. That Mr. Holder would fully embrace Mr. Durham’s work is hardly surprising. His statements were not made in a vacuum. He relied on and adopted Mr. Durham’s work-product in order to justify, in the most public way possible, the decision to forgo indictments of CIA officials and agents for potentially incendiary crimes. Attorneys General Mukasey and Holder made a point of publically appointing Mr. Durham to lead the investigation into the destruction of the tapes, and then again to lead the examination into detainee abuse, and then a third time to further investigate the two detainee deaths. Public justification of the reasons for DOJ’s ultimate inaction was politically essential for Mr. Holder and DOJ, and the Attorney General made clear that prosecution would not move forward precisely because of Mr. Durham’s work-product. The outside pressure to which Attorney General Holder’s comments were addressed was unmistakable. Mr. Durham’s investigations were paralleled by highprofile inquiries from Congress, including the three-year investigation by the 30 Senate Intelligence Committee on the CIA’s interrogation program. 18 Indeed, Attorney General Holder himself publically advocated at a major conference for release of the Senate Torture Report “as soon as possible with as few redactions as is possible,” and cited this position as an example of how he and the administration of President Barack Obama have “tried to work with doing our national security responsibilities consistent with the rule of law and again consistent with our values.”19 Moreover, defenders of the CIA had exerted considerable effort in attempting to influence the scope of the Durham investigations, meaning that the public pronouncements by Attorney General Holder were even more important. No less than seven former major intelligence officials who served as either Director of Central Intelligence or Director of the CIA publically appealed to President Obama to reverse Attorney General Holder’s decision to investigate the CIA’s interrogation practices, arguing that failure to do so “will seriously damage” the nation’s ability to protect itself.20 The divisive debate over the CIA’s techniques made all the more critical the need for public assurances from Attorney General 18 Scott Shane, No Charges Filed in Two Deaths Involving CIA, N.Y. Times, Aug. 31, 2012 at A1. (JA 71-72.) 19 Washington Ideas Forum 2014, Interview: Eric Holder, Attorney General, U.S. Justice Dept. (Oct. 29, 2014), http://fora.tv/2014/10/29/interview_eric_holder_attorney_general_us_department_of_justice (quoted section beginning at 8:12). 20 Peter Baker, C.I.A. Chiefs Ask Obama to Abandon Abuse Inquiry, N.Y. Times, Sept. 19, 2009, at A6. (JA 77-78.) 31 Holder that the investigations were thorough and driven by the rule of law and that the no-prosecution decision was not a sop thrown to the intelligence community. Mr. Durham was the key to that. C. DOJ Misconstrues the Legal Requirements for Express Adoption DOJ devotes much of its brief to arguing that the language of Mr. Holder’s statements was insufficient to constitute express adoption—that there were only “bare and cursory statements, which do not even explicitly refer to any of the five prosecution memoranda.” (See DOJ Br. 33-34.) With this argument, DOJ is trying once more to impose specific requirements on what language must be used to qualify as express adoption—the very same argument that DOJ made, and lost on, in La Raza. In La Raza, DOJ advanced the idea that “a document may be deemed expressly adopted or incorporated only in the event that an agency, in essence, uses specific, explicit language of adoption or incorporation.” La Raza, 411 F.3d at 357 n.5. The Court rejected that argument out of hand. “[C]ourts must examine all the relevant facts and circumstances in determining whether express adoption or incorporation by reference has occurred.” Id. (emphasis in original). And that is exactly how the analysis unfolded in La Raza. There, a memorandum from DOJ’s Office of Legal Counsel (“OLC”) addressed whether local law enforcement had authority to enforce certain provisions of federal 32 immigration law. La Raza, 411 F.3d at 352. In finding that the memorandum must be disclosed, the Court considered a range of factors: the “repeated references to the OLC memorandum made by the Attorney General and his high-ranking advisors, the substance of their comments, and the way in which their comments were used—that is, to assure third parties as to the legality of the actions the third parties were being urged to take.” Id. at 357. Disclosure was required because the Government was using the OLC memo as the legal authority for the agency’s claim that its new policy “had a basis in the law.” Id. at 359. That same approach was employed in Brennan in finding that the footnote and passing mention in congressional testimony was enough to establish express adoption or incorporation by reference. Brennan, 697 F.3d at 204. There is no requirement that an agency must always mention a particular document for express adoption to be found. In Brennan, there was no reference to the underlying legal memorandum in the congressional testimony that expressly adopted it. Id. Instead, a reference to OLC and the legal “advice” it had provided to USAID sufficed. Id.; see also Nat’l Day Laborer Org. Network v. Immigration & Customs Enforcement, 827 F. Supp. 2d 242, 258-260 (S.D.N.Y. 2011); Bronx Defenders v. Dep’t of Homeland Security, No. 04 Civ. 8576 (HB), 2005 U.S. Dist. LEXIS 33364, at *18-20 (S.D.N.Y. Dec. 19, 2005). In National Day Laborer, express adoption was premised largely on discussions led by agency officials in 33 which the legal justifications covered in the underlying legal memorandum were aired. 827 F. Supp. 2d at 254-55. In Bronx Defenders, the court rejected the Government’s contention that adoption turned on specific language in an agency’s public declarations—or, as the court framed it, that “absent some sort of magic language where the decision-making agency admits reliance on the reasoning in addition to the conclusions of a document, the standard has not been met.” 2005 U.S. Dist. LEXIS 33364, at *19. Instead, the court found implicit reliance demonstrated by an acknowledgment by the agency that it had sought OLC’s advice and some evidence that the agency followed that advice. Id. In seeking to impose a more demanding legal standard (see DOJ Br. 36-37), DOJ mischaracterizes a single sentence from Wood, in which the Court noted as evidence of the absence of express adoption that “[n]either Gangloff nor any other high-level DOJ officials made any public references to the Radek Memo.” See Wood, 432 F.3d at 84. That discussion of the factual record falls far short of establishing a test that requires a litigant to show that a government official used the word “document” or “memo” or specifically identified the document about which the official is speaking as a threshold test for even considering an adoption argument. More to the point, this Court has eschewed such formalism. La Raza, 411 F.3d at 357 n.5 (rejecting requirement of “specific, explicit language” adopting a document and insisting that a court must look to “all the relevant facts and 34 circumstances” when doing the adoption analysis (emphasis in original)). Indeed, it would thoroughly undercut the public policy underlying the express adoption cases to find that an agency could broadcast the cherry-picked contents of legal memoranda for public relations purposes so long as it never said the word “memo.” To the extent that DOJ is complaining that, without a document reference in the public statements, it is impossible to know which of Mr. Durham’s documents Mr. Holder was relying on in his statements, the fault for that lies fully with DOJ. Mr. Holder was a witness under DOJ’s control. Once The Times made its case that the memoranda had been expressly adopted, the burden of proof shifted to DOJ to refute the adoption argument by showing, for instance, that Mr. Holder did not rely on any of the five memoranda. See Nat’l Day Laborer, 827 F. Supp. 2d at 254 (setting out the burden shifts in a FOIA express adoption case). It did not do so. That is telling, especially in light of Mr. Holder’s enthusiastic endorsement of Mr. Durham’s work in the statement that Mr. Holder made after leaving office.21 Rather than embracing the sort of formulaic test that DOJ espouses for express adoption, the decisions in this Circuit show that what matters for the analysis is not how many references are made to a document, but whether the document’s legal analysis is held up as the “primary legal authority justifying and 21 See Interview with Former Attorney General Holder, supra note 9. 35 driving” an agency decision. Brennan, 697 F.3d at 198-99 (quoting La Raza, 411 F.3d at 358). DOJ unambiguously has portrayed the findings contained in Mr. Durham’s memoranda in just that way, even though DOJ could easily have announced the conclusion of the investigation and the decision not to prosecute rather than trying to get political cover by invoking details of Mr. Durham’s investigation.22 DOJ correctly cites to the holdings of Tigue, 312 F.3d at 81, and Common Cause v. IRS, 646 F.2d 656, 660 (D.C. Cir. 1981), where the courts found no express adoption because there were only “minor references” or a “casual allusion” to the underlying privileged material. (DOJ Br. 36-37.) Those cases say nothing about how this case should be decided where Mr. Durham’s work was held up as the “primary legal authority justifying and driving” an agency decision. See Brennan, 697 F.3d at 198-99 (quoting La Raza, 411 F.3d at 357-58). The factual blindness that is at the center of DOJ’s case is underscored by DOJ’s attempt to equate the facts here with the facts in Wood, 432 F.3d at 84. (See DOJ Br. 42.) In Wood, the evidence of adoption consisted of a handwritten sentence fragment scrawled on the privileged memo in an internal file (“Declined JG for LJR 12/30/97”). Wood, 432 F.3d at 84. There was no public discussion at all of the reasoning behind the government’s decision. Id. This Court easily concluded 22 In fact, federal prosecutors rarely announce the end of investigations for a variety of sound policy reasons. See, e.g., Reed Albergotti and Vanessa O’Connell, Why Did Federal Prosecutors Drop Their Lance Armstrong Case?, Wall St. J. (Jan. 27, 2013), https://blogs.wsj.com/law/2013/01/27/why-did-federal-prosecutors-drop-their-lance-armstrongcase/?mg=prod/accounts-wsj. (JA 174-76.) 36 that “there was no . . . adoption or incorporation by reference.” Id. That is not this case. Finally, DOJ argues that the district court erred in finding the government had expressly adopted nearly all parts of the five memoranda, including portions of documents that do not reflect Mr. Durham’s reasoning or that are exhibits not prepared by his investigators. (See, e.g., DOJ Br. 43.) Once again, DOJ attempts to impose new requirements on express adoption and incorporation by reference that do not exist in the law. Nowhere in La Raza or Brennan or Niemeier is the express adoption doctrine limited to discrete sections of the underlying documents. To the contrary, where there is express adoption or incorporation by reference, disclosure of “the memorandum as a whole” is to follow unless other FOIA exemptions apply. Niemeier, 565 F.2d at 973; see also Sears, 421 U.S. at 161 (same). There was nothing illogical about the district court’s application of express adoption to the five memoranda. Those were the key documents from Mr. Durham undergirding Mr. Holder’s announcements adopting Mr. Durham’s work-product: the Preliminary Review Memorandum, which established the basis for investigating the two deaths and ending the investigation into the other detentions (JA 282); the Recommendation Memoranda, which supported that memorandum (JA 283); and the two Declination Memoranda, which concluded charges should not be brought (JA 283). They clearly provided the legal rationale that ran through 37 Mr. Holder’s statements. They were the documents that had “justified and driven” the decision. D. Express Adoption Applies to Attorney Work-Product Faced with a daunting factual record establishing express adoption, DOJ tries to preserve confidentiality for the five memoranda by arguing that the protection afforded to attorney work-product is not set aside by express adoption or incorporation by reference. (DOJ Br. 23-33.) DOJ’s attempt to write the law of express adoption out of work-product cases is misbegotten. Express adoption has been held to overcome both the attorney-client privilege and the privilege that applies to deliberative materials. See, e.g., Brennan, 697 F.3d at 207-08; Wood, 432 F.3d at 84; La Raza, 411 F.3d at 360-61. There is no principled reason for making a novel and different rule for attorney work-product.23 This Court expressly reserved a decision on the issue of whether express adoption reaches attorney work-product in Wood, 432 F.3d at 84. Wood involved a FOIA request for a prosecutor’s memorandum. The Court found that no express adoption had occurred under the facts presented and therefore it did not need to resolve whether work-product material may be expressly adopted. Id. 23 The Times does not question that the work-product doctrine initially applied to the five memoranda. And while Exemption 5 typically reaches only statements of opinion and not statements of fact, that is not true in respect to the work-product privilege, which has been construed to reach factual statements for Exemption 5 purposes. See A. Michael’s Piano, Inc. v. FTC, 18 F.3d 138, 147 (2d Cir. 1994). 38 DOJ strangely implies that the issue was actually decided three decades earlier in Sears when, according to DOJ, the Supreme Court “rejected the argument that the work-product privilege protecting [work-product] documents could be overcome by the express adoption doctrine.” (See DOJ Br. 24.) That is not so (as Wood makes obvious). Instead, in the portion of the Sears decision cited by DOJ, the Supreme Court distinguished between a decision made by NLRB not to file a complaint (which constituted a final decision by the agency) and a decision to file a complaint and litigate a violation (which did not constitute a final decision by the agency). See Sears, 421 U.S. at 159-60 (explaining that “[t]he filing of a complaint does not finally dispose even of the General Counsel’s responsibility”). In the latter circumstances, the doctrines of working law and express adoption were inoperative because there was no final decision, and Exemption 5 continued to permit withholding. Id. DOJ also errs in suggesting that the issue was decided in Rockwell International Corporation v. U.S. Department of Justice, 235 F.3d 598 (D.C. Cir. 2001). (DOJ Br. 25.) DOJ contends that the D.C. Circuit held in Rockwell that “the express adoption doctrine cannot overcome the attorney work-product privilege” unless the privileged document is a final decision subject to FOIA’s affirmative disclosure obligation under 5 U.S.C. § 552(a)(2) (which applies principally to 39 certain formally adopted policies and adjudicatory opinions that must be made public even in the absence of a FOIA request). (DOJ Br. 25.) There are two fundamental errors in DOJ’s reading of Rockwell. First, DOJ misstates Rockwell’s holding: It did not deal with whether a privileged document had to be a “final decision” under FOIA before it could be ordered released. Rockwell’s finality analysis was focused on a publicly released report, not on the undisclosed privileged documents that provided support for that report. In Rockwell, an ad hoc report was published by DOJ to respond to congressional criticism of an investigation. Rockwell, 235 F.3d at 600. A FOIA requester sought the release of the supporting documents that were referenced in the report. Id. at 601. The agency claimed those documents were attorney work-product. Id. The question before the court, contrary to what DOJ says here, was whether the publicly released report was a final opinion for purposes of FOIA. The FOIA requester argued that “the Report . . . is an agency final opinion,” which incorporated by reference the underlying documents, while the agency responded that “the Report is not a final opinion subject to disclosure under section 552(a)(2)(A) and Sears” and “[i]ncorporation . . . is therefore irrelevant.” Id. at 602. Under Sears, the doctrine of express adoption or incorporation by reference applies only to final agency action—the sort of decision-making that the public has 40 a need to know about. Sears, 421 U.S. at 161 (citing “the public interest in knowing the reasons for a policy actually adopted”). The D.C. Circuit found that the publicly released report—a report dealing not with an agency adjudication or formulation of policy but with a political squabble between an executive agency and a congressional committee—did not quality as a “final opinion” of DOJ for purposes of FOIA. Id. at 603. The court did not address whether the withheld privileged documents were “final.” Second, DOJ is wrong to suggest that express adoption applies only to withheld documents that themselves would have to be affirmatively disclosed under Section 552(a)(2). (See DOJ Br. 25.) That makes no sense. If the underlying withheld documents were required to be public by virtue of Section 552(a)(2), there would be no purpose for the express adoption doctrine. The courts would simply decide whether the underlying document fell within the bounds of Section 552(a)(2) and order its release if it did. In the end, Rockwell stands for nothing more than a decision has to be final before a court applies the express adoption analysis. In addressing what decisions are final, the court cited as a “general principle” that “action taken by the responsible decisionmaker in an agency’s decision-making process which has the practical effect of disposing of a matter before the agency is ‘final’ for purposes of FOIA.” Rockwell, 235 F.3d at 602. That would take in not just decisions covered 41 by the affirmative disclosure obligation found in Section 552(a)(2) but other formal decisions as well. The Rockwell court distinguished official decisions and policies that are part of an agency’s formal and established processes from the kind of report that was before the court: a summary of “a voluntarily undertaken internal agency investigation” of employees. Id. at 603. Express adoption—designed to shed light on the official activities of the Executive Branch—is not applied to informal agency action. In short, Rockwell says nothing about this case, where only official decisions of DOJ are involved. It is La Raza, with its analysis of express adoption as applied to the attorneyclient privilege, that actually illuminates how this case should be decided and why the same express adoption rule should apply to attorney work-product as to attorney-client communication. Once an agency in its public pronouncements embraces a privileged document as the rationale for an agency position, the very thing that the attorney-client privilege is intended to protect—the secrecy that is needed for open and frank communication—is no longer a consideration. La Raza, 411 F.3d at 360. In considering the relationship between the attorney-client privilege and express adoption, the Court analyzed the question in the exact same way (and using the exact same language) that the Supreme Court did in Sears in determining that express adoption applies to the deliberative process privilege. See La Raza, 411 F.3d at 360 (quoting Sears, 421 U.S. at 161). What mattered to the 42 courts in La Raza and Sears was that (1) the underlying rationale for the privilege—to provide confidentiality and encourage deliberative candor— “evaporates” when there is public adoption of an employee’s recommendation, and (2) permitting the government to publically adopt a position while shielding the rationale for the decision is contrary to the purposes of FOIA. See Sears, 421 U.S. at 161; La Raza, 411 F.3d at 360; see also Brennan, 697 F.3d at 207 (quoting La Raza and Sears). As the La Raza Court explained, “We cannot allow the Department to make public use of the Memorandum when it serves the Department’s ends but claim the attorney-client privilege when it does not.” Id. at 361. Put differently, an agency is never required to rely on privileged documents in making its PR case to the public, but when it freely chooses to do so, it surrenders the protection of Exemption 5. The concerns that animated the court’s decision in La Raza are equally forceful here: DOJ sought to simultaneously sell its decision to the American public (and the world) by invoking the findings of the Durham investigation while also claiming a need for secrecy when the public wants to know the authority and reasoning behind the decision. If FOIA means anything, it means that the American public does not have to settle for “just trust us” government. DOJ argues that Federal Open Market Committee v. Merrill, 443 U.S. 340, 360 n.23 (1979), mandates a different conclusion because the court there observed 43 that “the kind of mutually exclusive relationship between final opinions and statements of policy, on the one hand, and predecisional communications [i.e. agency deliberations], on the other, does not necessarily exist between final statements of policy and other Exemption 5 privileges.” (See DOJ Br. 24-25.) In fact, this Court in Brennan explicitly rejected that argument as to the attorneyclient privilege, stating “La Raza establishes that when a document has been relied upon sufficiently to waive the deliberative-process privilege, that reliance can have the same effect on the attorney-client privilege.” Brennan, 697 F.3d at 208 (emphasis added). Were DOJ’s argument accepted, it would spawn the strange result that, under FOIA, attorney work-product receives more exalted treatment than the attorney-client privilege even though the reverse is true in civil litigation, where a party can obtain work-product on a showing of necessity. See Fed. R. Civ. P. 26(b)(3). More to the point, DOJ’s argument cannot be squared with this Court’s decisions in La Raza and Brennan. Attorney memoranda sought in those cases undoubtedly constituted attorney work-product, just as here, but disclosures were ordered in both cases after a finding the government expressly adopted those memoranda in public statements made by officials. DOJ tries without success to distinguish between the underlying purpose of the work-product privilege and the attorney-client privilege. (See DOJ Br. 30.) It 44 sees the work-product privilege as protecting “zealous advocacy” by keeping attorneys’ written materials out of the hands of adversaries. That may be so, but it says nothing about why this privilege should be differentiated from the attorneyclient privilege, which protects an equally compelling value in our system of justice and is identically based on the confidentiality needed to protect a client’s interests, and which can be surrendered through express adoption. DOJ baldly asserts that disclosure here “would jeopardize the government’s position . . . in numerous future prosecutions” (DOJ Br. 30-31) without explaining how that is so or acknowledging that all express adoption cases will turn on their specific facts. See La Raza, 411 F.3d at 357 n.5 (“[C]ourts must examine all the relevant facts and circumstances in determining whether express adoption or incorporation by reference has occurred.”). And DOJ simply hides from the most obvious rejoinder to its position: If DOJ wants to avoid surrendering the privilege, it does not have to rely on a privileged document in its PR statements. DOJ next tries to distinguish between the work-product and attorney-client privileges by emphasizing trivial distinctions in what qualifies as a waiver for each privilege. (See DOJ Br. at 31-32.) This argument is equally unpersuasive. Both the attorney-client privilege and the work-product privilege can be waived, and slight distinctions in how this waiver law is formulated have little salience, as the district court found. (SPA 12-13.) Rather, the salient point is that the attorney-client and 45 work-product privileges share the same overarching purpose: to preserve the public’s ability to access legal services by providing attorneys and clients with a zone of privacy. The Second Circuit has held that the primary rationale behind the attorney-client privilege—promoting open communication between lawyers and clients—“evaporates” once the government expressly incorporates a document. La Raza, 411 F.3d at 360. As the district court explained, the attorney-client privilege and the work-product doctrine “are, if not twins, at least very close siblings,” and “[i]f publicly adopting a document vitiates the purpose of the attorney-client privilege, it is hard to see why it ought not to do the same to the work product doctrine.” (SPA 13.)24 The DOJ wades into arcane distinctions in waiver law in an effort to distract from the inescapable conclusion that the Second Circuit’s logic in La Raza applies with equal force here. The Seventh Circuit got it right in Niemeier when it found that express adoption or incorporation by reference surrendered the work-product privilege. See Niemeier, 565 F.2d at 973.25 The case involved a FOIA request for a staff lawyer’s memorandum to the Watergate Special Prosecutor. Id. at 969. The Special 24 Nor is DOJ correct in saying the express adoption rule recognized in Brennan for attorneyclient communication would not apply to opinion work-product. (See DOJ Br. 31-32.) The document at issue in Brennan was the quintessential opinion work-product: a draft legal opinion. See Brennan, 697 F.3d at 204. 25 The DOJ incorrectly claims that the Supreme Court’s decision in Merrill overrules by implication the Seventh Circuit’s decision in Niemeier. (DOJ Br. 25-26.) This argument is premised on a misreading of Merrill, one that the Second Circuit expressly rejected in La Raza and Brennan Center. See Brennan, 697 F.3d at 208; La Raza, 411 F.3d at 360-61. 46 Prosecutor decided not to indict President Nixon and a portion of the lawyer’s memorandum was incorporated into a final report by the Special Prosecutor. Id. at 970. The Seventh Circuit found that “where an underlying memorandum is expressly relied on in a final agency dispositional document, even though only part of it is expressly reproduced. . . a presumption in favor of disclosability of the memorandum as a whole is created.” Id. at 973. The presumption can be rebutted only by a showing that some exemption other than Exemption 5 applies to the nondisclosed portions of the document. Id. The Niemeier court found no reason why the work-product privilege would survive express adoption. “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. Under these circumstances, such documents ‘are not the ideas and theories which go into the making of the law, they are the law itself, and as such should be made available to the public.’” Id. at 974 (internal citation omitted). See also Brotherhood of Locomotive Eng’rs v. Surface Transp. Bd., No. 96cv1153 (PLF), 1997 U.S. Dist LEXIS 11808, at *17 (D.D.C. July 31, 1997) (holding as to some documents that attorney work-product protection had been overcome by express adoption). 47 The same rationale applies here, and the same result should follow. DOJ could have simply announced the conclusion of the Durham investigations. It chose to do far more in order to elicit public support and short-circuit public criticism. Permitting DOJ to have it both ways—reaping the political benefits of reliance on Mr. Durham’s reports while denying the public the right to verify the thoroughness and logic of the reports—undermines the very idea of informed democratic debate. And, of more immediate import, to do so would violate FOIA. 48 CONCLUSION For each and every of the reasons set forth above, the judgment of the district court should be affirmed. Dated: New York, NY January 5, 2018 Respectfully submitted, By: /s/ David E. McCraw David E. McCraw, Esq. The New York Times Company Legal Department 620 Eighth Avenue New York, NY 10018 Phone: (212) 556-4031 Facsimile: (212) 556-4634 Email: mccraw@nytimes.com Counsel for The New York Times Company and Charlie Savage 49 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS 1. This brief complies with Fed.R.App.P.32(a)(7)(B) because: the type-volume limitation of This brief contains 12,049 words, excluding the parts of the brief exempted by Fed.R.App.32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed.R.App.P.32(a)(5) and the type style requirements of Fed.R.App.P32(a)(6) because: This brief has been prepared in Proportionally-Space typeface using Microsoft Word, in Times New Roman, Font Size 14.