Brennan Center for Justice v. Department of Justice

11-4599
Brennan Center for Justice v. Department of Justice
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2012 3
(Argued: February 21, 2012 Decided: September 19, 2012) 4
Docket No. 11-4599 5
------------------------------------- 6
Brennan Center for Justice at New York University School of Law, 7
Plaintiff-Appellee, 8
- v - 9
United States Department of Justice, United States Agency for 10
International Development, United States Department of Health and 11
Human Services, 12
Defendants-Appellants. *
13
------------------------------------- 14
Before: CALABRESI, SACK, and HALL, Circuit Judges. 15
Appeal from a judgment of the United States District 16
Court for the Southern District of New York (Victor Marrero, 17
Judge) granting the plaintiff's motion for summary judgment and 18
denying the defendants' cross-motion for summary judgment. The 19
court ordered disclosure by the defendants of three memoranda 20
prepared by the Department of Justice's Office of Legal Counsel 21
because they were not covered by the deliberative process 22
* The Clerk of Court is respectfully directed to amend the
caption as set forth above.

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exemption, 5 U.S.C. § 552(b)(5), from the general requirement of 1
disclosure contained in the Freedom of Information Act. We 2
conclude that one such memorandum was incorporated by reference 3
in a USAID document such that the protection of the exemption was 4
surrendered, but that the other two were not and retain their 5
exempt status. 6
Affirmed in part; reversed and remanded in part. 7
Appearances: DOROTHY HEYL (Elizabeth M. Virga, on the 8
brief) Milbank, Tweed, Hadley & McCloy 9
LLP, New York, New York, for Plaintiff- 10
Appellee. 11
SHARON SWINGLE (Benjamin H. Torrance, 12
Sarah S. Normand, Beth S. Brinkmann, 13
Michael S. Raab, on the brief), for 14
Preet Bharara, United States Attorney 15
for the Southern District of New York, 16
New York, New York, for Defendants- 17
Appellants. 18
Melanie Sloan, Anne L. Weismann, Adam J. 19
Rappaport, Citizens for Responsibility 20
and Ethics in Washington, Washington, 21
DC; David L. Sobel, Electronic Frontier 22
Foundation, Washington, DC; Mark Rumold, 23
Electronic Frontier Foundation, San 24
Francisco, California, amici curiae. 25
SACK, Circuit Judge: 26
The defendants, the United States Department of Justice 27
("DOJ"), the United States Department of Health and Human 28
Services ("HHS"), and the United States Agency for International 29
Development ("USAID"), appeal from a judgment of the United 30
States District Court for the Southern District of New York 31
2

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(Victor Marrero, Judge) granting a motion for summary judgment by 1
the plaintiff, the Brennan Center for Justice at New York 2
University School of Law ("Brennan Center"), denying the 3
defendants' cross-motion for summary judgment, and, pursuant to 4
the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, ordering 5
the release of three memoranda prepared by the DOJ's Office of 6
Legal Counsel ("OLC"). For the reasons that follow, the judgment 7
of the district court is affirmed with respect to one of these 8
memoranda, and reversed and remanded with respect to the other 9
two. 10
BACKGROUND 11
In 2003, Congress enacted the two statutes that provide 12
the factual backdrop for this litigation: the United States 13
Leadership Against HIV/AIDS, Tuberculosis, Malaria Act, 22 U.S.C. 14
§§ 7601-7682. ("Leadership Act"), and the Trafficking Victims 15
Protection Reauthorization Act, 22 U.S.C. §§ 7101-7112. 16
("TVPRA"). Each included what has become known as the "pledge 17
requirement," purporting to require all organizations that 18
receive funds for HIV/AIDS and anti-trafficking work pursuant to 19
the statutes to have "a policy explicitly opposing prostitution 20
and sex trafficking." 22 U.S.C. § 7631(f); see also 22 U.S.C. § 21
7110(g)(2). 22
After the Leadership Act was enacted, the 23
[OLC] . . . warned that applying the Policy 24
Requirement to U.S.-based organizations would 25
be unconstitutional. Heeding that warning, 26
3

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[the government] initially refrained from 1
enforcing it against U.S.-based NGOs. OLC 2
subsequently changed course and withdrew what 3
it characterized as its prior "tentative 4
advice," asserting that "there are reasonable 5
arguments to support the constitutionality" 6
of applying the Policy Requirement to 7
U.S.-based organizations, and, starting in 8
mid-2005, the Agencies began applying the 9
Requirement to U.S.-based grantees. 10
Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l 11
Dev., 651 F.3d 218, 225 (2d Cir. 2011). 1
12
On July 14, 2005, the Brennan Center submitted FOIA 13
requests to USAID, HHS, and the OLC for "any and all documents 14
containing guidance" provided by the OLC to any representatives 15
of HHS or USAID "relating to the enforcement" of the pledge 16
requirement. FOIA Request from Brennan Center to HHS at 1 (July 17
14, 2005), Brennan Center v. Dep't of Justice, No. 11-4599, Joint 18
Appendix ("J.A."), at 248 (2d Cir. Jan. 6, 2012); FOIA Request 19
from Brennan Center to OLC at 1, J.A. 270 (July 14, 2005); FOIA 20
Request from Brennan Center to USAID at 1, J.A. 302 (July 14, 21
2005). On March 7, 2007, HHS denied the request in its entirety 22
1 Alliance for Open Society was brought by several
organizations, including the Brennan Center, challenging the
pledge requirement on First Amendment grounds. We affirmed the
district court's decision to preliminarily enjoin that provision
of the Leadership Act concluding that it "falls well beyond what
the Supreme Court and this Court have upheld as permissible
conditions on the receipt of government funds [because it] does
not merely require recipients of Leadership Act funds to refrain
from certain conduct, but goes substantially further and compels
recipients to espouse the government's viewpoint." 651 F.3d at
223.
4

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and referred it to USAID and the OLC, from which, it had 1
determined, many of the requested documents originated. 2 The OLC 2
denied the original request in its entirety, and denied the 3
request referred from HHS except as to a nine-page letter 4
commenting on the TVPRA that was already in the public record, 5
which was sent in September 2003 from a DOJ official to 6
Representative James Sensenbrenner, then-Chairman of the House 7
Judiciary Committee. USAID did not respond to the referred 8
request, and denied the original request in its entirety. The 9
Brennan Center appealed the various denials with those agencies, 10
and the agencies affirmed their denials, leaving the Brennan 11
Center with the option of pursuing its claims in federal court. 12
See 5 U.S.C. § 552(a)(4)(B). 13
On October 15, 2009, the Brennan Center brought this 14
action in the United States District Court for the Southern 15
District of New York broadly alleging that USAID, OLC, and HHS 16
had violated FOIA by failing to identify responsive documents, 17
failing to disclose records, failing to disclose reasonably 18
segregable portions of otherwise withheld documents, and, with 19
respect to the OLC and USAID, failing to respond to FOIA 20
2 HHS located 231 pages of responsive documents, and
withheld 46 pages in their entirety pursuant to FOIA's
deliberative process exemption, see 5 U.S.C. 552(b)(5). It
determined that of the remaining documents, 177 pages originated
with the OLC, and 8 pages with USAID, and referred the Brennan
Center's request to those agencies.
5

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requests. On January 15, 2010, the defendants provided the 1
plaintiff with an index of withheld documents as required by 2
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The Vaughn index 3
included the date of each document withheld, the author and 4
recipient(s), a brief description, the number of pages, and the 5
reason for its being withheld. The district court judge met with 6
the defendants on April 22, 2010, and May 5, 2010, and asked them 7
to consider disclosing some or all of the documents in order to 8
avoid further litigation. In response, the defendants released 9
heavily redacted versions of several documents and associated 10
emails. See Order, Brennan Center v. Dep't of Justice, No. 09 11
Civ. 8756, at 1-3 (S.D.N.Y. July 1, 2010), ECF No. 16. To the 12
extent that internal agency emails and memoranda are referenced 13
in this opinion, they are part of the record by virtue of this 14
disclosure. 15
On January 28, 2011, the plaintiff moved for summary 16
judgment seeking release of the entirety of three memoranda that 17
it alleges were improperly withheld pursuant to FOIA's "Exemption 18
5," which shields from disclosure "inter-agency or intra-agency 19
memorandums or letters which would not be available by law to a 20
party other than an agency in litigation with the agency." 5 21
U.S.C. § 552(b)(5). That exemption has been interpreted to 22
encompass traditional common law privileges against disclosure, 23
including the attorney-client and deliberative-process 24
6

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privileges, and the work-product doctrine. Nat'l Council of La 1
Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005). The 2
three withheld documents that are the targets of the Brennan 3
Center's objections are: (1) a one-page memorandum provided by 4
the OLC to HHS and USAID on or about February 17, 2004, regarding 5
the constitutionality of the pledge requirement (the "February 6
Memorandum"); (2) a July 2, 2004, draft of a formal, but never- 7
finalized, OLC opinion addressing the constitutionality of the 8
pledge requirement (the "July 2 Memorandum"); and (3) a July 29, 9
2004, draft memorandum similar to the July 2 Memo (the "July 29 10
Memorandum"). 11
The February Memorandum 12
On February 12, 2004, the General Counsel of HHS asked 13
the OLC to provide, on a "very short timeframe," "advice on the 14
constitutional issues raised by the grant restrictions under the 15
two statutes." Memorandum from Renee Lettow Lerner at 2, J.A. 55 16
(March 12, 2004) (describing HHS request). 17
In response, on February 17, Renee Lettow Lerner, an 18
OLC attorney, sent an email to HHS Deputy General Counsel Paula 19
M. Stannard and USAID employee John Gardner attaching a one-page 20
memorandum containing at least some of the requested advice. 3
21
3 All correspondence regarding the February Memorandum
involved both USAID and HHS, although the March 12, 2004, letter
suggests the advice was provided only at the behest of HHS. We
have not found any explanation in the record for this
7

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The memorandum explained that "[i]n the limited time available to 1
us, we have not been able to conduct a comprehensive analysis, 2
but we have reached the following tentative views, which might 3
need to be altered after further analysis." February Memorandum 4
at 1, J.A. 37. The document, the first of the three memoranda 5
that are the subject of this litigation, was supplied to the 6
plaintiff during the course of this litigation with all analysis 7
redacted. 8
In an email later that evening, Stannard conveyed 9
"draft language for the HIV/AIDS and trafficking grant 10
awards/agreements" to Lerner. Email from Stannard, "Re: OLC's 11
advice on grant announcements," J.A. 40 (Feb. 17, 2004). She 12
also sent a copy to the USAID employee. Again, a copy of the 13
email was supplied to the Brennan Center, but most of it was 14
redacted. Lerner replied to Stannard the following day, February 15
18, in an email that was, in effect, withheld from disclosure, 16
i.e., it is redacted in its entirety. 17
On February 19, a USAID employee, acting on behalf of 18
USAID employee Gardner, sent that agency's revised "Acquisition & 19
Assistance Policy Directive" ("AAPD") 4 to Lerner, Stannard, and 20
discrepancy.
4 "AAPDs serve as official sources for the latest updates
in acquisition and assistance (A&A) policy and requirements.
AAPDs provide information of significance including, but not
limited to, advance notification of changes or implementation of
8

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other HHS and State Department employees. Later that day, 1
Stannard and HHS employee Demetrios Kouzoukas sent "a final draft 2
of the language" to Lerner, Gardner, and other HHS, USAID, and 3
State Department employees, and thanked those on the email chain 4
for their comments. Email from Demetrios Kouzoukas, "Language in 5
HHS HIV/AIDS award instruments," J.A. 48 (Feb. 19, 2004). 6
One week later, on February 26, 2004, USAID issued an 7
AAPD intended to "provide clauses to be included as new standard 8
provisions for assistance agreements and contracts that include 9
FY 2004 HIV/AIDS funds." USAID AAPD 04-04 Revised, 10
"Implementation of the United States Leadership Against HIV/AIDS, 11
Tuberculosis and Malaria Act of 2003" at 2, J.A. 167 (Feb. 26, 12
2004) ("February 26 AAPD"). The February 26 AAPD included the 13
pledge requirement only for "Non-U.S. Non-Governmental 14
Organizations and Public International Organizations." Id. at 5. 15
That meant that any grant to a foreign organization would include 16
new requirements to A&A regulations and procedures." Acquisition
and Assistance Policy Directives (AAPDs) and Contract Information
Bulletins (CIBs), available at
http://transition.usaid.gov/business/business_opportunities/cib/
(last visited August 3, 2012). "Acquisition refers to obtaining
goods and services, through various types of contracts, for the
use or benefit of the Agency. Assistance refers to transferring
funds (or other valuables) from USAID to another party for the
implementation of programs which will contribute to the public
good . . . ." Doing Business with USAID, available at
http://transition.usaid.gov/business (last visited August 8,
2012). No evidence in the record of which we are aware refers to
any formal process that might exist for the creation or approval
of AAPDs.
9

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a clause explaining that "[a]s a condition of entering into this 1
agreement, the recipient agrees that it has a policy explicitly 2
opposing, in its activities outside the United States, 3
prostitution and sex trafficking." Id. at 6. No similar 4
language would be included in the grant language required with 5
respect to U.S. organizations. An AAPD that had been issued on 6
January 15, 2004, prior to the OLC's February memorandum, did 7
include the pledge requirement language for both U.S. and non- 8
U.S. organizations. USAID AAPD 04-04, "Implementation of the 9
United States Leadership Against HIV/AIDS, Tuberculosis and 10
Malaria Act of 2003" at 3, J.A. 162 (Jan. 15, 2004). 11
On June 24, 2004, HHS issued a grant proposal that 12
required "any foreign recipient [to] have a policy explicitly 13
opposing, in its activities outside the United States, 14
prostitution and sex trafficking." HHS Funding Announcement, 15
"HIV Treatment for Research Subjects or by Researchers in Kenya" 16
at 7, J.A. 176 (June 24, 2004). A July 22, 2004, USAID document 17
contained a footnote explaining that the OLC "in a draft opinion 18
determined that this provision only may be applied to foreign 19
non-governmental organizations and public international 20
organizations because of the constitutional implications of 21
applying it to U.S. organizations." USAID FY 2004 Update, 22
"Guidance on the Definition and Use of the Child Survival and 23
Health Programs Fund and the Global HIV/AIDS Initiative Account" 24
10

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at 35 n.10, J.A. 197 (July 22, 2004) ("July 22 USAID Update"). 1
On August 3, 2004, USAID issued another AAPD explaining that 2
"[t]he US Government has determined that it is appropriate to 3
apply the [pledge] requirement . . . only to foreign 4
organizations, including public international organizations." 5
USAID AAPD 04-09, "Anti-Trafficking Activities –- Limitation on 6
the Use of Funds; Restriction on Organizations Promoting, 7
Supporting or Advocating Prostitution" at 3, J.A. 200 (Aug. 3, 8
2004) ("August 3 AAPD"). 9
The July Memoranda 10
In a July 2, 2004 email, the OLC provided HHS with a 11
thirty-page draft opinion –- the second document the plaintiff 12
seeks. Another version of that draft, dated July 29, the third 13
document that the plaintiff contends must be disclosed, was 14
emailed to HHS on July 30. In the record on appeal, both draft 15
opinions are redacted with the exception of a date, title, and 16
introductory sentence. After an in camera review, however, the 17
district court concluded that contrary to the OLC's view conveyed 18
in February, those drafts counseled implementation of the pledge 19
requirement for both U.S.-based and foreign organizations. 5
20
5 Despite the July 2004 memoranda that opined that the
pledge requirement could constitutionally be applied to domestic
activities, in July and August, USAID continued to advise that
the requirement would only be applied to foreign organizations,
as evidenced by the July 22 USAID Update and August 3 AAPD.
11

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Brennan Center v. Dep't of Justice, No. 09 Civ. 8756 at 17-18, 1
2011 WL 4001146, at *7, 2011 U.S. Dist. LEXIS 99121, at *19 2
(S.D.N.Y. Aug. 30, 2011). No formal OLC opinion on the issue was 3
ever finalized or issued. 4
In September 2004, Daniel Levin, the Acting Assistant 5
Attorney General for the OLC, wrote to the general counsel of HHS 6
confirming that "earlier this year . . . [DOJ] gave its tentative 7
advice" that the pledge requirement could only be applied to 8
foreign organizations overseas, but explained that "[w]e have 9
reviewed the matter further and we are withdrawing that tentative 10
advice. . . . [T]here are reasonable arguments to support [the 11
domestic pledge requirement's] constitutionality." Letter from 12
Levin to HHS General Counsel Alex M. Azar, II at 1, J.A. 207 13
(Sept. 20, 2004)("Levin Letter"). This letter was not released 14
by either the OLC or HHS, but, according to the defendants, it 15
was "improperly leaked . . . [and] later made public by members 16
of Congress." Defs.' Br. at 13. 17
The first public discussion of the agencies' 18
deliberations concerning the pledge requirement was held during a 19
March 2005 hearing of the Foreign Operations Subcommittee of the 20
House Appropriations Committee. Randall Tobias, who was then 21
U.S. Global AIDS coordinator, testified that 22
[t]he [OLC] provided some tentative advice 23
initially that those restrictions should be 24
applied only to foreign organizations. 25
12

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Sometime mid- to late- . . . September of 1
2004, [the OLC] withdrew that earlier 2
tentative advice and advised that that 3
provision was intended by the Congress to 4
apply without that limitation to both 5
domestic organizations as well as foreign 6
organizations. And so I'm simply following 7
the legislation and the advice to implement 8
that. 9
Foreign Operations, Export Financing, and Related Programs 10
Subcommittee Hearing Testimony of Randall L. Tobias, J.A. 236 11
(March 2, 2005)("Tobias Testimony"). 12
In May 2005, HHS announced that it would apply the 13
pledge requirement to domestic organizations, and USAID did the 14
same in June 2005. 15
In a July 17, 2007, letter from Principal Deputy 16
Assistant Attorney General Brian Benczkowski to Congressman Henry 17
Waxman, Benczkowski further explained the OLC's positions on the 18
pledge requirement. "[I]n February 2004, the [OLC] provided 19
tentative advice [to HHS and USAID] that the [pledge 20
requirement] . . . could, under the Constitution, be applied only 21
to foreign organizations acting overseas." Letter from Brian 22
Benczkowski to Congressman Waxman at 1, J.A. 230 (July 17, 23
2007)("Benczkowski Letter"). But Benczkowski explained that the 24
OLC had thereafter changed its mind and advised in the September 25
2004 letter that the pledge requirement could be applied 26
domestically because there were "reasonable arguments to defend" 27
doing so. Id. at 1-2. The letter also noted that the OLC would 28
13

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not turn over its internal documents on the issue because of 1
"substantial confidentiality interests." 6 Id. at 2. 2
The District Court Opinion 3
The district court considered the foregoing evidence in 4
analyzing the question of whether the agencies had 5
"expressly . . . adopt[ed] or incorporate[d]" the memoranda 6
sufficiently to waive the protection of Exemption 5. Brennan 7
Center, 2011 WL 4001146, at *3, 2011 U.S. Dist. LEXIS 99121, at 8
*8-*9 (quoting La Raza, 411 F.3d at 356); see also discussion of 9
Exemption 5, at Part II of the Discussion section of this 10
opinion, below. In ordering disclosure of the memoranda, the 11
court concluded that the deliberative-process privilege did not 12
apply. 13
It is clear from the various AAPDs, internal 14
government letters and memoranda, public 15
6 Several news articles –- at least one of which was
published before the agencies themselves had spoken publicly --
also noted the OLC's advice on this issue. A February 28, 2005,
Wall Street Journal article explained that "[t]he Bush
Administration had previously applied the requirement only to
overseas groups because the Justice Department initially advised
that it would be an unconstitutional violation of free speech to
demand that American grant applicants support Mr. Bush's policy.
But the Justice Department reversed itself last fall." Michael
M. Phillips, Bush Ties Money for AIDS Work to a Policy Pledge,
W ALL ST. J., Feb. 28, 2005. A May 18, 2005, Washington Post
article similarly said that "[i]nitially, the policy was applied
only to foreign organizations operating overseas. U.S.-based
charities were exempt because the Justice Department believed
that forcing them to make the declaration might infringe their
First Amendment right of free speech." David Brown, U.S. Backs
Off Stipulation on AIDS Funds, W ASH . POST , May 18, 2005.
14

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statements made by Government officials, and 1
other materials reviewed by the Court in 2
camera that, between February and September 3
2004, USAID and HHS adopted as agency policy 4
both the conclusions provided in the February 5
Memo that the Pledge Requirement should be 6
applied to foreign organizations only, as 7
well as OLC's reasoning and analysis that 8
application of the Pledge Requirement to 9
domestic organizations would violate the 10
First Amendment. Indeed, from the public 11
record alone, there can be little doubt that 12
this was the case. . . . 13
Further, the record also reveals that the 14
conclusions and analysis contained in the 15
July Memoranda, which the Court has examined 16
in camera, were the basis for the 17
Government's determination to alter its 18
policy and apply the Pledge Requirement to 19
U.S.-based organizations. . . . [A]lthough 20
the documents were never mentioned 21
specifically by name, the Government 22
incorporated the July Memoranda by reference 23
[in the relevant public statements]. 24
Brennan Center, 2011 WL 4001146, at *6-*7, 2011 U.S. 25
Dist. LEXIS 99121, at *17-*19. 26
The court also concluded that because the memoranda had 27
been "incorporated . . . into HHS's and USAID's official policy" 28
they were not protected by the attorney-client privilege. Id. at 29
*7, 2011 U.S. Dist. LEXIS 99121, at *20. The court therefore 30
granted the plaintiff's motion for summary judgment, denied the 31
defendants' cross-motion for summary judgment, and ordered the 32
disclosure of all three memoranda. 33
The defendants appeal. 34
15

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DISCUSSION 1
I. Standard of Review 2
"We review de novo a district court's grant of summary 3
judgment in a FOIA case," La Raza, 411 F.3d at 355, as, of 4
course, we review all such motions, see, e.g., Oneida Indian 5
Nation of N.Y. v. Madison County, 665 F.3d 408, 424 (2d Cir. 6
2011), and cross motions, for summary judgment, see, e.g., 7
Terwilliger v. Terwilliger, 206 F.3d 240, 244 (2d Cir. 2000). 8
Summary judgment is appropriate if there is "no genuine dispute 9
as to any material fact" and the moving party is "entitled to 10
judgment as a matter of law." Fed. R. Civ. P. 56(a). The 11
parties do not dispute that this matter was properly decided on 12
cross motions for summary judgment, although, of course, they 13
differ as to which side should have prevailed. 14
II. Deliberative Process Exemption 15
A. Basic Principles. 16
1. Generally. 17
Consistent with its purpose to "promote honest and open 18
government[,] and to assure the existence of an informed 19
citizenry in order to hold the governors accountable to the 20
governed[,] FOIA strongly favors a policy of disclosure." La 21
Raza, 411 F.3d at 355 (internal quotation marks, alterations, and 22
citations omitted). It "requires the government to disclose its 23
records unless its documents fall within one of the specific, 24
16

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enumerated exemptions set forth in the Act. Consistent with 1
FOIA's purposes, these statutory exemptions are narrowly 2
construed." Id. at 355-56 (citations omitted). The agency bears 3
the burden of demonstrating that an exemption applies. Id. at 4
356. 5
The memoranda being sought by the Brennan Center in 6
this case were withheld by the government defendants pursuant to 7
FOIA Exemption 5, which exempts "inter-agency or intra-agency 8
memorandums or letters which would not be available by law to a 9
party other than an agency in litigation with the agency" from 10
the disclosure otherwise required under the Act. 5 U.S.C. 11
§ 552(b)(5). The privilege is based "on the policy of protecting 12
the decision making processes of government agencies." NLRB v. 13
Sears, Roebuck, & Co., 421 U.S. 132, 150 (1975) (internal 14
quotation marks omitted). Prior case law examining it "focuses 15
on documents reflecting advisory opinions, recommendations and 16
deliberations comprising part of a process by which governmental 17
decisions and policies are formulated." Id. (internal quotation 18
marks and alteration omitted). 19
"[T]here are enough incentives as it is for 20
playing it safe and listing with the wind," 21
Ackerly v. Ley, 137 U.S. App. D.C. 133, 138, 22
420 F.2d 1336, 1341 (1969), and as [the Court 23
has] said in an analogous context, "[h]uman 24
experience teaches that those who expect 25
public dissemination of their remarks may 26
well temper candor with a concern for 27
appearances . . . to the detriment of the 28
17

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decisionmaking process." United States v. 1
Nixon, 418 U.S. 683, 705 (1974) . . . . 2
Sears, 421 U.S. at 150-51 (emphasis omitted; second alteration in 3
original); see also Wolfe v. Dep't of Health & Human Servs., 839 4
F.2d 768, 773 (D.C. Cir. 1988)(en banc)("Congress adopted 5
Exemption 5 because it recognized that the quality of 6
administrative decision-making would be seriously undermined if 7
agencies were forced to operate in a fishbowl."). 8
"An inter- or intra-agency document may be withheld 9
pursuant to the deliberative process privilege [i.e., 10
section 552(b)(5)] if it is: (1) 'predecisional,' i.e., 'prepared 11
in order to assist an agency decisionmaker in arriving at his 12
decision,' and (2) 'deliberative,' i.e., 'actually . . . related 13
to the process by which policies are formulated.'" La Raza, 411 14
F.3d at 356 (quoting Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 15
473, 482 (2d Cir. 1999)); see also Grand Cent. P'ship, 166 F.3d 16
at 482 ("The privilege protects recommendations, draft documents, 17
proposals, suggestions, and other subjective documents which 18
reflect the personal opinions of the writer rather than the 19
policy of the agency." (internal quotation marks omitted)). 20
However, even if the documents at issue are 21
"predecisional" and "deliberative," and thereby fall under the 22
scope of Exemption 5, there are circumstances under which they 23
will be found outside the scope of that protection. As discussed 24
18

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more thoroughly below, these exceptions include: (1) when the 1
contents of the document have been "adopted, formally or 2
informally, as the agency position on an issue or [are] used by 3
the agency in its dealings with the public," La Raza, 411 F.3d at 4
356-57 (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 5
F.2d 854, 866 (D.C. Cir. 1980)); and (2) when the document is 6
more properly characterized as an "opinion[] [or] 7
interpretation[] which embod[ies] the agency's effective law and 8
policy," in other words, its "working law," Sears, 421 U.S. at 9
153 (internal quotation marks omitted). 10
In short, the document claimed to be exempt will be 11
found outside Exemption 5 if it closely resembles that which FOIA 12
affirmatively requires to be disclosed: "final opinions . . . 13
made in the adjudication of cases," "statements of policy and 14
interpretations which have been adopted by the agency and are not 15
published in the Federal Register," and "administrative staff 16
manuals and instructions to staff that affect a member of the 17
public." 5 U.S.C. § 552(a)(2)(A)-(C). 7
18
2. The Scope of Exemption 5. Although Exemption 5 is 19
set out by statute, it is the Supreme Court's decision in Sears 20
7 The litigation posture of Exemption 5 cases, the present
one being no exception, focuses on the government proving the
applicability of an exemption rather than the plaintiff proving
applicability of one of the affirmative provisions because the
burden rests on the government to shield documents from
disclosure otherwise to be disclosed under FOIA.
19

-- 19 of 52 --

that delineates the limits of that exemption, and which has been 1
the starting point for all of our discussions of it, as it is in 2
this case. 3
The Sears Court explained the circumstances under which 4
a document otherwise subject to Exemption 5 might lose its 5
protection. The plaintiff had submitted a FOIA request for 6
"Advice and Appeals Memoranda" prepared by the General Counsel of 7
the National Labor Relations Board ("NLRB") discussing potential 8
charges against various employers. 421 U.S. at 142-43. 9
The Court began by analyzing the process by which such 10
memoranda were created. Typically, the NLRB General Counsel 11
required certain charging decisions from its regional offices 12
first to be submitted to its central office so that the agency 13
had an "opportunity to formulate a coherent policy, and to 14
achieve some measure of uniformity, in enforcing the labor laws." 15
Id. at 141. A regional director submitted a memorandum that 16
"set[] forth the facts of the case, a statement of the issues on 17
which advice [was] sought, and a recommendation." Id. The 18
General Counsel's office then assigned the case to a staff 19
attorney who assisted in preparing the "Advice and Appeals 20
Memorandum" that "briefly summarize[d] the facts, . . . set forth 21
the . . . legal or policy issue submitted together with a 22
detailed legal rationale, and contain[ed] instructions for the 23
final processing of the case." Id. at 142 (internal quotation 24
20

-- 20 of 52 --

marks omitted). Based on that memorandum, the regional director 1
then decided whether or not to prosecute the charge. Id. 2
The Court observed that while "the public is vitally 3
concerned with the reasons . . . [for] an agency policy actually 4
adopted," or "those communications which explain [a] decision," 5
"[t]he public is only marginally concerned with reasons 6
supporting a policy which an agency has rejected, or with reasons 7
which might have supplied, but did not supply, the basis for a 8
policy which was actually adopted on a different ground." Id. at 9
152. 10
The reasons for a decision made by an agency, or a 11
policy actually adopted, however, "constitute the 'working law' 12
of the agency." Id. at 153. Therefore, the exemption "properly 13
construed, calls for 'disclosure of all opinions and 14
interpretations which embody the agency's effective law and 15
policy, and the withholding of all papers which reflect the 16
agency's group thinking in the process of working out its policy 17
and determining what its law shall be.'" Id. (quoting Kenneth 18
Culp Davis, The Information Act: A Preliminary Analysis, 34 U. 19
Chi. L. Rev. 761, 797 (1967)) (some internal quotation marks 20
omitted). "This conclusion is powerfully supported by . . . 21
[t]he affirmative portion of the Act, [which] expressly 22
requir[es] indexing of 'final opinions,' 'statements of policy 23
and interpretations which have been adopted by the agency,' and 24
21

-- 21 of 52 --

'instructions to staff that affect a member of the public.'" 8
1
Sears, 421 U.S. at 153 (quoting 5 U.S.C. § 552(a)(2)). Those 2
affirmative provisions, it reasoned, "represent[] a strong 3
congressional aversion to secret agency law, and represent[] an 4
affirmative congressional purpose to require disclosure of 5
documents which have the force and effect of law." Id. (internal 6
quotation marks, alterations, and citations omitted). 7
The Court concluded that NLRB memoranda that advised no 8
action be taken, and thereby ended the inquiry and left the 9
responsible regional director with "no decision to make," fell 10
outside of Exemption 5 and therefore had to be disclosed. Id. at 11
155. They "are precisely the kind of agency law in which the 12
public is so vitally interested and which Congress sought to 13
prevent the agency from keeping secret." Id. at 156. 14
After determining that these memoranda were the type of 15
"agency law" which it concluded were non-exempt, the Court then 16
explained that "[f]or essentially the same reasons, these 17
memoranda are 'final opinions' made in the 'adjudication of 18
8 The Sears Court subsumed into its "working law" or
"agency law" analysis all three of section 552(a)(2)'s
affirmative provisions, and did not, for example, discuss "final
opinions" separately from "statements of policy and
interpretations which have been adopted by the agency." In many
cases, as in Sears, the line between a "final opinion" and a
"statement of policy and interpretation[]" is blurry, and the
"working law" analysis therefore provides an interpretation aimed
at aiding courts when presented with documents that fall between
these categories.
22

-- 22 of 52 --

cases' . . . pursuant to 5 U.S.C. § 552(a)(2)(A)," and thus must 1
be disclosed. Id. at 158. By contrast, the reasoning and 2
conclusions behind memoranda that advise prosecution "will come 3
out in the course of litigation before the Board; and . . . the 4
'law' with respect to these cases will ultimately be made not by 5
the General Counsel but by the Board or the courts." Id. at 160. 6
The Court then addressed a separate path towards the 7
loss of Exemption 5's protection –- whether predecisional and 8
deliberative documents fall outside of that exemption if 9
"adopt[ed] or incorporate[d] by reference" into "what would 10
otherwise be a final opinion," in other words, in a document that 11
has already been found to be nonexempt. The Court concluded that 12
they did. 13
The probability that an agency employee will 14
be inhibited from freely advising a 15
decisionmaker for fear that his advice if 16
adopted, will become public is slight. 17
First, when adopted, the reasoning becomes 18
that of the agency and becomes its 19
responsibility to defend. Second, agency 20
employees will generally be encouraged rather 21
than discouraged by public knowledge that 22
their policy suggestions have been adopted by 23
the agency. Moreover, the public interest in 24
knowing the reasons for a policy actually 25
adopted by an agency supports . . . [the 26
decision to order disclosure]. Thus, we hold 27
that, if an agency chooses expressly to adopt 28
or incorporate by reference an intra-agency 29
memorandum previously covered by Exemption 5 30
in what would otherwise be a final opinion, 31
that memorandum may be withheld only on the 32
ground that it falls within the coverage of 33
some exemption other than Exemption 5. 34
23

-- 23 of 52 --

Id. at 161 (emphasis in original). 1
On the same day that the Supreme Court decided Sears, 2
it also decided Renegotiation Board v. Grumman Aircraft 3
Engineering Corp., 421 U.S. 168 (1975), a companion case further 4
exploring the limits of Exemption 5. Grumman had requested 5
documents created during the Renegotiation Board's process of 6
"deciding whether certain Government contractors have earned, and 7
must refund, 'excessive profits' on their Government contracts." 8
Id. at 170. After exhaustively reviewing the process by which 9
these documents were created, the Court explained that if a 10
"Division Report" was created recommending a course of action, it 11
would be given to the Renegotiation Board for its review. Id. at 12
176-77. But "[n]either the Board nor any of its members were 13
bound by any prior recommendations. The Board was free, after 14
discussion, to reject the proposed conclusion reached in the 15
Division Report, or to accept it for reasons other than those set 16
forth in the report." Id. at 177. Similarly, although under a 17
different process, a "Regional Board Report" could be created. 18
Id. at 178-79. 19
The Court concluded that these reports were not subject 20
to disclosure because "the evidence utterly fails to support the 21
conclusion that the reasoning in the reports is adopted by the 22
Board as its reasoning, even when it agrees with the conclusion 23
of a report." Id. at 184 (emphasis in original). The reports 24
themselves had "no operative effect," and therefore could not be 25
24

-- 24 of 52 --

characterized as "final opinions," within the meaning of FOIA's 1
affirmative disclosure provisions. Id. at 187. "[A]bsent 2
indication that [a report's] reasoning has been adopted, there is 3
little public interest in [its] disclosure." Id. at 186. The 4
reports therefore retained their protection under Exemption 5. 5
The Grumman Court acknowledged that some agency 6
decisions may simply not have any accompanying public rationale. 7
"The effect of this decision [then] is that, in those cases in 8
which [the Renegotiation Board does not offer a summary of its 9
reasoning], the public will be largely uninformed as to the basis 10
for [its] decisions." Id. at 191. 11
The Freedom of Information Act imposes no 12
independent obligation on agencies to write 13
opinions. It simply requires them to 14
disclose the opinions which they do write. 15
If the public interest suffers by reason of 16
the failure of the Board to explain some of 17
its decisions, the remedy is for Congress to 18
require it to do so. It is not for us to 19
require disclosure of documents, under the 20
purported authority of the Act, which are not 21
final opinions, which do not accurately set 22
forth the reasons for the Board's decisions, 23
and the disclosure of which would impinge on 24
the Board's predecisional processes. 25
Id. (citation omitted). 26
Although Grumman did not explain its reasoning using 27
the same terminology as Sears, it also provided two somewhat 28
distinct paths through which Exemption 5's protections could be 29
lost: (1) if the reports had "operative effect" and were 30
therefore akin to "final opinions" –- the equivalent of "working 31
25

-- 25 of 52 --

law" in Sears's language; or (2) if the reports' reasoning and 1
conclusions had been adopted by the Board in issuing its own 2
decision –- the equivalent of "express adoption or incorporation 3
by reference" in Sears. 4
3. Express Adoption or Incorporation by Reference. We 5
have had several occasions on which to apply the Supreme Court's 6
Exemption 5 jurisprudence, in particular Sears's "express 7
adoption" or "incorporation by reference" holding, on which the 8
district court relied. The most relevant for present purposes 9
was our decision in La Raza. There we considered whether the 10
FOIA required disclosure of an OLC memorandum prepared for the 11
DOJ on the subject of whether state and local law enforcement 12
officials could lawfully enforce certain provisions of federal 13
immigration law. La Raza, 411 F.3d at 352. The DOJ argued that 14
"it did not expressly adopt or incorporate the OLC memorandum" 15
into a final opinion, and it was therefore protected by the 16
deliberative-process exemption, or the attorney-client privilege. 17
Id. 18
Since 1996, the DOJ had been of the view that state and 19
local law enforcement could not enforce the civil provisions of 20
federal immigration law -- "such as overstaying one's visa or 21
entering the United States without proper documentation." Id. at 22
352-53 & n.1. The OLC had issued a memorandum supporting this 23
position, which it had released publicly. Id. at 353. 24
26

-- 26 of 52 --

In 2002, under a new presidential administration, the 1
DOJ changed its policy. Id. Then-Attorney General John Ashcroft 2
announced an immigration initiative employing state and local 3
agencies to enforce specified civil provisions of federal 4
immigration law. In a June 5, 2002, press conference explaining 5
the new initiative, the Attorney General reported that "[OLC] has 6
concluded that this narrow, limited mission we are asking state 7
and local police to undertake voluntarily –- arresting aliens who 8
have violated . . . civil provisions that render an alien 9
deportable [–-] is within the inherent authority of the states." 10
Id. 11
On March 11, 2003, General Ashcroft wrote a letter to 12
an organization that had expressed an interest in the matter 13
explaining that "[OLC] previously opined that state and local law 14
enforcement officials have inherent authority to make arrests for 15
criminal immigration law violations generally." Id. At least 16
three other letters from the Attorney General and an Acting 17
Assistant Attorney General containing similar language were 18
submitted to members of Congress. Id. at 354. And in June 2003, 19
another member of the Attorney General's office, speaking to a 20
group of local and state police department officials who were 21
part of an FBI advisory board, offered a detailed explanation of 22
the policy in which he repeatedly referenced the OLC's advice. 23
Id. at 354-55. 24
27

-- 27 of 52 --

We concluded that the "repeated references" made by the 1
Attorney General and high-ranking DOJ officials to the document 2
"demonstrate[d] that the Department regarded the [m]emorandum as 3
the exclusive statement of, and justification for, its new 4
policy . . . ." Id. at 357. The DOJ thus "made a practice of 5
using the OLC Memorandum to justify and explain the Department's 6
policy and to assure the public and the very state and local 7
government officials who would be asked to implement the new 8
policy that the policy was legally sound." Id. at 358. The 9
memorandum was, indeed, the "primary legal authority justifying 10
and driving" the change in policy. 9 Id. 11
We thus concluded that the document had been expressly 12
adopted or incorporated by reference, and ordered it to be 13
released. Id. 14
Our decision in Wood v. FBI, 432 F.3d 78 (2d Cir. 15
2005), rested on a rationale similar to that employed by the 16
Supreme Court in Grumman. There, a reporter sought disclosure of 17
a memorandum prepared by DOJ trial attorneys related to an 18
investigation of FBI agents alleged to have lied in affidavits 19
supporting arrest warrant applications. Id. at 80. We affirmed 20
9 Referring to Grumman, we noted that "there must be
evidence that an agency has actually adopted or incorporated by
reference the document at issue; mere speculation will not
suffice." La Raza, 411 F.3d at 359 (emphasis in original). We
also observed that "a casual reference to a privileged document
does not necessarily imply that an agency agrees with the
reasoning contained in those documents." Id.
28

-- 28 of 52 --

the district court's conclusion that the memorandum was properly 1
withheld under the work-product privilege pursuant to Exemption 2
5, 10 and had not been incorporated by reference or expressly 3
adopted by the agency. Id. at 84. 4
The plaintiff had argued that a note on the memorandum 5
by a high-ranking DOJ official indicating that he would decline 6
prosecution constituted express adoption or incorporation by 7
reference of the memorandum itself. But, we said: 8
This brief notation does not indicate that 9
DOJ adopted the reasoning of the . . . 10
[m]emo. Neither [the endorsing official] nor 11
any other high-level DOJ officials made any 12
public references to the . . . [m]emo. There 13
is no evidence in the record from which it 14
could be inferred that DOJ adopted the 15
reasoning of the [m]emo, and, as we explained 16
in . . . La Raza, this failure is fatal. 17
Id. at 84. 11
18
10 The court did "not reach the question of whether [the La
Raza] doctrine would require the disclosure of otherwise exempt
attorney work-product," as opposed to documents exempt under the
deliberative process exemption. Wood, 432 F.3d at 84.
11 Shermco Industries Inc. v. Secretary of Air Force, 613
F.2d 1314 (5th Cir. 1980) is similar. The court reversed a
district court's conclusion that a memorandum discussing a bid
award, which had been forwarded to the GAO as part of bid protest
proceedings, lost its deliberative character. Id. at 1320.
First, the court noted that "the decision [on to whom to award
the bid] was not yet final." Id. at 1319. Second, "even if it
were a final decision, these memoranda were not expressly
incorporated by reference into the [final decision by the Air
Force to award the contract]. They had been used by the Air
Force internally in reaching their initial conclusion that [a
Shermco competitor] was the lowest bidder, and they were produced
to the GAO in aid of their defense against Shermco's protest, but
they were never attached to any formal written decision by the
Air Force." Id. at 1320.
29

-- 29 of 52 --

4. The "Working Law" Principle. While our previous 1
cases and the proceedings thus far in this one have largely 2
focused on the issue of whether a memorandum has been expressly 3
adopted or incorporated by reference, Sears also requires us to 4
ask whether the OLC opinion constitutes the "working law of the 5
agency" and therefore must be disclosed. 6
If an agency's memorandum or other document has become 7
its "effective law and policy," it will be subject to disclosure 8
as the "working law" of the agency, Sears, 421 U.S. at 153, much 9
the same as it would be if expressly adopted or incorporated by 10
reference into a nonexempt document, id. at 161-62. The Sears 11
Court explained that the purposes undergirding FOIA required 12
disclosure in either instance. Compare id. at 152 (explaining 13
that "working law" should be disclosed because "the public is 14
vitally concerned with the reasons which did supply the basis for 15
an agency policy actually adopted"), with id. at 161 (explaining 16
that documents expressly adopted or incorporated should be 17
disclosed in part because of "the public interest in knowing the 18
reasons for a policy actually adopted by an agency"). As 19
explained above, the "working law" analysis is animated by the 20
affirmative provisions of FOIA, see 5 U.S.C. § 552(a)(2)(A)-(C), 21
and documents must be disclosed if more akin to that which is 22
required by the Act to be disclosed than that which may be 23
30

-- 30 of 52 --

withheld under Exemption 5. Sears separately analyzed each of 1
these two means by which Exemption 5 protection may be lost. 12
2
Not surprisingly given the nature of much of its 3
caseload, the D.C. Circuit has become something of a specialist 4
in the "working law" exception. The circuit analyzed it at some 5
length in Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 6
854 (D.C. Cir. 1980). There, the plaintiff sought copies of 7
Department of Energy interpretations of its regulations, 8
specifically "memoranda from regional counsel to auditors working 9
in [the Department of Energy ("DOE")]'s field offices, issued in 10
response to requests for interpretations of regulations within 11
the context of particular facts encountered while conducting an 12
audit of a firm." Id. at 858. The agency argued against 13
disclosure, contending that the memoranda were not binding on the 14
12 The Eleventh Circuit is one of the few courts to have
examined the link between these two elements of Sears.
[D]ata "expressly adopt[ed] or incorporate[d]
by reference" means predecisional
deliberative material which is adopted and
approved by the agency as its "effective law
and policy." By expressly adopting the
reasoning of her subordinate, the
decisionmaker has in effect converted a
rejected proposal into the rationale for the
agency's working law. As a consequence, the
documents are no longer considered
predecisional[,] for they now support and
explain the agency's position in the same
manner a postdecisional document explains an
agency decision.
Fla. House of Representatives v. Dep't of Commerce, 961 F.2d 941,
945 n.4 (11th Cir.) (citation omitted), cert. dismissed, 506 U.S.
969 (1992).
31

-- 31 of 52 --

audit staff -- the staff was free to disregard the conclusions 1
reached in those memoranda. Id. at 859. The court disagreed. 2
It noted that the memoranda were "at times 'amended' or 3
'rescinded,' which would hardly be necessary if the documents 4
contained merely informal suggestions to staff which could be 5
disregarded . . . ." Id. at 860. 6
After examining the particular role that the documents 7
played in the audit process, the court concluded that they 8
were not suggestions or recommendations as to 9
what agency policy should be. . . . [T]he 10
memoranda are not advice to a superior, nor 11
are they suggested dispositions of a case, as 12
in Grumman. They are not one step of an 13
established adjudicatory process, which would 14
result in a formal opinion, as were the 15
documents held exempt in [Sears]. 16
17
Id. at 868. 18
[T]hese opinions were routinely used by 19
agency staff as guidance in conducting their 20
audits, and were retained and referred to as 21
precedent. If this occurs, the agency has 22
promulgated a body of secret law which it is 23
actually applying in its dealings with the 24
public but which it is attempting to protect 25
behind a label. This we will not permit the 26
agency to do. Tentative opinions are not 27
relied on as precedent; they are considered 28
further by the decisionmaker. 29
Id. at 869. 13
30
13 In Coastal States, there was no allegation by the
plaintiff that the memoranda had been expressly adopted or
incorporated by reference, suggesting that in some cases
disclosure is required even without public reliance on a document
otherwise exempt from disclosure under Exemption 5.
32

-- 32 of 52 --

In Public Citizen, Inc. v. Office of Management and 1
Budget, 598 F.3d 865 (D.C. Cir. 2010), the court considered the 2
plaintiff's request for documents created by the White House 3
Office of Management and Budget ("OMB") describing the 4
circumstances under which an agency might "bypass" OMB and submit 5
their budget materials directly to Congress. Id. at 867. The 6
documents at issue "summariz[ed]" OMB's understanding of which 7
agencies had such bypass authority and the bases for that 8
authority. Id. at 868. The court concluded that the documents 9
did not enjoy the protection of Exemption 5 because "[d]ocuments 10
reflecting OMB's formal or informal policy on how it carries out 11
its responsibilities fit comfortably within the working law 12
framework." Id. at 875. As in Coastal States, the documents 13
were referred to as precedent, and not part of an ongoing 14
deliberative process. 15
Similarly, in Tax Analysts v. IRS, 294 F.3d 71 (D.C. 16
Cir. 2002), the court ordered release of IRS documents explaining 17
whether certain tax exemptions applied to specific taxpayers, 18
concluding that they constituted "working law" because their 19
"tone . . . indicate[d] that they simply explain[ed] and 20
appl[ied] established policy." Id. at 80-81 (internal quotation 21
marks omitted). Those documents included the phrases "It is the 22
position of the Treasury Department that" and "We conclude," 23
while the exempt documents contained "such phrases as 'We 24
33

-- 33 of 52 --

believe' and 'We suggest.'" Id. at 81. To qualify as working 1
law, "[i]t is not necessary that the [documents] reflect the 2
final programmatic decisions of the program officers who request 3
them. It is enough that they represent [the Office of the 4
Comptroller of the Currency]'s final legal position concerning 5
the Internal Revenue Code, tax exemptions, and proper 6
procedures." Id. (emphasis in original). 7
Our Court has relatively little case law examining the 8
"working law" principle. In La Raza, we made passing reference 9
to Sears's conclusion that the public was "vitally concerned" 10
with the reasons for a policy actually adopted, and that these 11
reasons constituted the "working law" of the agency. 411 F.3d 12
360. We did so, however, in the context of explaining the 13
relevance of the public adoption of the OLC memorandum at issue 14
to the question of whether it should be disclosed, noting that 15
"the public can only be enlightened by knowing what the [agency] 16
believes the law to be." Id. (quoting Tax Analysts v. IRS, 117 17
F.3d 607, 618 (D.C. Cir. 1997)). In that context, we agreed with 18
the district court's conclusion that "[t]he Department's view 19
that it may adopt a legal position while shielding from public 20
view the analysis that yielded that position is offensive to 21
FOIA." Id. (internal quotation marks omitted). 22
The question of whether a document constitutes "working 23
law," or has been expressly adopted or incorporated by reference, 24
34

-- 34 of 52 --

then, are two paths to determining whether a withheld document 1
constitutes what FOIA affirmatively requires to be disclosed -- 2
"'final opinions,' 'statements of policy and interpretations 3
which have been adopted by the agency,' and 'instructions to 4
staff that affect a member of the public.'" Sears, 421 U.S. at 5
153 (quoting 5 U.S.C. § 552(a)(2)). Most Exemption 5 cases are 6
not framed in this manner because it is the government's burden 7
to prove that the privilege applies, and not the plaintiff's to 8
demonstrate the documents sought fall within one of the 9
enumerated section 552(a)(2) categories. Nevertheless, the 10
appropriate analysis requires us to determine whether the 11
documents sought more closely resemble the type of internal 12
deliberative and predecisional documents that Exemption 5 allows 13
to be withheld, or the types of documents that section 552(a)(2) 14
requires be disclosed. To do that, the Supreme Court and our 15
court have asked whether the documents fit within the description 16
of "working law," in addition to whether they have been expressly 17
adopted or incorporated by reference into a nonexempt 18
communication. 19
B. Analysis 20
1. The February 2004 Memorandum. We begin our 21
analysis of the status of this document, as we must with respect 22
to all three memoranda at issue, by examining the process by 23
which the memorandum was created. See Tigue v. Dep't of Justice, 24
35

-- 35 of 52 --

312 F.3d 70, 78 (2d Cir. 2002) ("[W]hether a particular document 1
is exempt . . . depends not only on the intrinsic character of 2
the document itself, but also on the role it played in the 3
administrative process.") (internal quotation marks omitted), 4
cert. denied, 538 U.S. 1056 (2003). We do so because "Exemption 5
5, properly construed, calls for disclosure of all opinions and 6
interpretations which embody the agency's effective law and 7
policy . . . ." Sears, 421 U.S. at 153 (internal quotation marks 8
omitted). 9
The emails in the record indicate that USAID and HHS 10
officials asked the OLC for advice on the constitutional and 11
legal propriety of the implementation of the pledge requirement. 12
They then incorporated that advice into their decision as to 13
whether the language of the grants for HIV/AIDS and anti- 14
trafficking work would in fact require "an explicit and 15
affirmative policy opposing prostitution." It also appears that 16
the OLC reviewed USAID's proposed grant language before the AAPD 17
that contained it was issued. 18
It is not disputed that the February 2004 memorandum 19
was predecisional and deliberative. See Public Citizen, 598 F.3d 20
at 874 ("We deem a document predecisional if it was generated 21
before the adoption of an agency policy and deliberative if it 22
reflects the give-and-take of the consultative process.") 23
(internal quotation marks omitted). 24
36

-- 36 of 52 --

[A]n agency may meet its burden of proof 1
under the 'predecisional document' test by 2
demonstrating that the preparer was not the 3
final decisionmaker and that the contents 4
confirm that the document was originated to 5
facilitate an identifiable final agency 6
decision. . . . A predecisional document 7
will qualify as 'deliberative' provided 8
it . . . formed an essential link in a 9
specified consultative process, . . . 10
reflects the personal opinions of the writer 11
rather than the policy of the agency, 12
and . . . if released, would inaccurately 13
reflect or prematurely disclose the views of 14
the agency. 15
Providence Journal Co. v. Dep't of the Army, 981 F.2d 552, 559 16
(1st Cir. 1992) (citations, internal quotation marks, and 17
brackets omitted). 18
The "decision" being made by USAID and HHS was whether 19
they were constitutionally bound to disregard a duly enacted 20
statute's command that domestic organizations be subject to the 21
pledge requirement. Although this may not properly be referred 22
to as an "adjudication," it was a firm and concrete decision 23
regarding the agency's policy. 14 See Cmty. Television of S. 24
14 In this sense, the "decision" made differs from one in
which an agency considers and rejects a policy that it was never
required to consider or implement. In Common Cause v. IRS, 646
F.2d 656 (D.C. Cir. 1981), the court considered whether documents
related to the IRS's decision not to implement a plan it had
proposed, which would have disclosed "the names of federal
officials who had approached the IRS about the tax matters of
third parties, as well as the subjects of such contacts," should
have been released per FOIA. Id. at 658. The court rejected the
plaintiffs' argument that the documents "constitute[d] the
reasons which suppl[ied] the basis for the agency policy actually
adopted." Id. at 659. "The proposed disclosure plan remained
37

-- 37 of 52 --

Cal. v. Gottfried, 459 U.S. 498, 515-516 (1983) ("[H]owever broad 1
an administrative agency's discretion in implementing a 2
regulatory scheme may be, the agency may not ignore a relevant 3
Act of Congress. . . . [T]he agency cannot simply 'close its 4
eyes' to the existence of the statute." (citation omitted)); 5
Lincoln v. Vigil, 508 U.S. 182, 193 (1993) ("[A]n agency is not 6
free simply to disregard statutory responsibilities . . . ."); 7
see also Presidential Authority to Decline to Execute 8
Unconstitutional Statutes, 18 Op. O.L.C. 199, 200 (1994) 9
(explaining the president's ability to decline to enforce 10
statutes he views as unconstitutional); Bristol-Meyers Co. v. 11
FTC, 598 F.2d 18, 25 (D.C. Cir. 1978) (concluding that an 12
agency's decision not to proceed with rulemaking is analogous to 13
just that. Its rejection did not, therefore, constitute the
making of law or policy by an agency. The exchange of ideas and
proposals which took place within the Service with respect to the
proposed plan is precisely the type of communication which
Congress meant to protect in enacting Exemption 5." Id. The
court considered and rejected the argument that the memoranda
should be disclosed because they contained the "written reasons
for the agency's final decision not to implement the proposed
plan." Id. "This case differs from Sears in many important
respects. The present case involves the voluntary suggestion,
evaluation, and rejection of a proposed policy by an agency, not
the agency's final, unappealable decision not to pursue a
judicial remedy in an adversarial dispute . . . . No statute
demands that the IRS voluntarily disclose information about
third-party contacts . . . ." Id. at 659-60. The court also
considered the broader implications of the plaintiffs' argument,
concluding that it would "virtually eliminate the governmental
privilege" as "[e]very rejection of a proposal, no matter how
infeasible or insignificant, would become a 'final decision' of
an agency." Id. at 660.
38

-- 38 of 52 --

the NLRB's non-charging decision in Sears, and thus would not 1
enjoy the protection of Exemption 5). We find no other evidence 2
concerning this decisionmaking process in the record. 3
No one at the OLC made the decision that the pledge 4
requirement as it pertained to domestic organizations would not 5
be implemented. As Paul Colborn, special counsel to the OLC, 6
explained to the district court by affidavit, "OLC does not 7
purport, and in fact lacks authority, to make policy decisions. 8
OLC's legal advice and analysis informs the decisionmaking of 9
Executive Branch officials on matters of policy, but OLC's legal 10
advice is not itself dispositive as to any policy adopted." 11
Decl. of Paul P. Colborn at 2, J.A. 318 (March 11, 2011). The 12
plaintiff does not submit contrary evidence suggesting that the 13
OLC's recommendation was effectively binding on the agency, as in 14
Coastal States, 617 F.2d at 869, or left it with "no decision to 15
make," as in Sears, 421 U.S. at 155. The February Memorandum 16
does not constitute "working law," or "the agency's effective law 17
and policy." Id. at 153. We nonetheless conclude that the OLC's 18
views were adopted by reference by USAID in nonexempt 19
communications, and therefore must be disclosed. 20
The first explicit reference to the OLC advice came in 21
a July 22, 2004, USAID document entitled "Guidance on the 22
Definition and Use of the Child Survival and Health Programs Fund 23
and the Global HIV/AIDS Initiative Account." There the agency 24
39

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explained that the funding statute "requires non-U.S. non- 1
governmental organizations . . . receiving HIV/AIDS funds to 2
agree that they have a policy explicitly opposing, in their 3
activities outside of the United States, prostitution and sex 4
trafficking." July 22 USAID Update at 35. In a footnote, the 5
document explained that "[t]he Office of Legal Counsel, U.S. 6
Department of Justice in a draft opinion determined that this 7
provision only may be applied to foreign non-governmental 8
organizations and public international organizations because of 9
the constitutional implications of applying it to U.S. 10
organizations." Id. at 35 n.10. 15
11
Then, in March 2005, after HHS and USAID had shifted 12
their positions, tentatively deciding to apply the pledge 13
requirement domestically, Randall Tobias, the USAID Global AID 14
15 Plaintiff urges us also to consider the September 20,
2004, letter from an OLC official to the general counsel of HHS
explaining that the "tentative advice" offered earlier was being
"withdraw[n]." Levin Letter at 1-2. Because there were
"reasonable arguments" to support the constitutionality of the
policy, the OLC official stated, "we believe that HHS may
implement these provisions." Id. at 1. Because this letter was
neither written by a decisionmaker nor released publicly by the
decisionmaking agency, its relevance is limited. It does not aid
in establishing either express adoption or incorporation by
reference, and neither does it suggest that the February 2004 OLC
opinion was considered the "working law" of the agency. Rather,
it suggests that even after the February memorandum was sent to
HHS, a deliberative process continued, and advice was later
offered again to HHS that was also non-binding. In this sense,
it supports the defendant's contention that the February
memorandum should have been considered exempt from disclosure.
40

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Administrator, made a second reference to the February 1
Memorandum. When asked in a Congressional hearing about the 2
agency's change in positions, he explained: 3
The [OLC] . . . provided some tentative 4
advice initially that those restrictions 5
should be applied only to foreign 6
organizations. Sometime mid- to late-, I 7
think, in September of 2004, they withdrew 8
that earlier tentative advice and advised 9
that that provision was intended by the 10
Congress to apply without that limitation to 11
both domestic organizations as well as 12
foreign organizations. And so I'm simply 13
following the legislation and the advice to 14
implement that. 15
Tobias Testimony, J.A. 236. 16
16
Thus, there were two public statements referencing the 17
February 2004 memorandum -- the July 22 footnote, and the Tobias 18
testimony. We conclude that these references taken together 19
establish express adoption or incorporation by reference. 20
16 An additional "public" reference was made to the February
2004 memorandum, in a July 2007 letter from an OLC official to
Congressman Henry Waxman. Waxman had requested an explanation
from the OLC regarding its interpretation of the pledge
requirement. The OLC wrote that in February 2004 it had provided
"tentative advice" to HHS and USAID that the pledge requirement
"could, under the Constitution, be applied only to foreign
organizations acting overseas." Benczkowski Letter at 1. The
letter then went on to explain the subsequent change in advice.
This letter is also of limited relevance in determining whether
or not the February 2004 opinion should be subject to disclosure
because it was not authored by a decisionmaker from USAID or HHS.
(Again, this would be different had plaintiff adduced evidence
that OLC opinions were essentially binding upon the agencies.)
41

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To be sure, neither the July 22 footnote nor Tobias's 1
testimony discussed at length the rationale provided by the OLC 2
for its conclusion as to the propriety of applying the pledge 3
requirement to domestic grantees. Noting that the advice itself 4
was limited to one page in the first instance, we conclude that 5
the July 22 footnote's explanation that the pledge requirement 6
would not be enforced "because of the constitutional implications 7
of applying it to U.S. organizations," July 22 USAID Update at 35 8
n.10, at least when reenforced by the Tobias reference, 9
demonstrates sufficient reliance on both the conclusion and 10
reasoning of the OLC memorandum to remove the protection of the 11
deliberative-process exemption. 17
12
17 In a pre-Sears case, the D.C. Circuit ordered disclosure
pursuant to Exemption 5 based on reasoning similar to what we
apply here.
We do not feel that [the agency] should be
required to 'operate in a fishbowl,' but by
the same token we do not feel that [the party
seeking disclosure] should be required to
operate in a darkroom. If the [agency] did
not want to expose its staff's memorandum to
public scrutiny it should not have stated
publicly in its April 11 ruling that its
action was based upon that memorandum, giving
no other reasons or basis for its action.
When it chose this course of action 'as a
matter of convenience' the memorandum lost
its intra-agency status and became a public
record, one which must be disclosed . . . .
Am. Mail Line, Ltd. v. Gulick, 411 F.2d 696, 703 (D.C. Cir. 1969)
(citation omitted).
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Any agency faces a political or public relations 1
calculation in deciding whether or not to reference what might 2
otherwise be a protected document in explaining the course of 3
action it has decided to take. In many cases, as here, the 4
agency is not required to explain its reasons publicly. 5
Nonetheless, where it determines there is an advantage to doing 6
so by referencing a protected document as authoritative, it 7
cannot then shield the authority upon which it relies from 8
disclosure. 9
2. The July 2004 Memos. As outlined above, on July 10
2, 2004, OLC lawyer Lerner sent an email to HHS and USAID 11
officials attaching a 30-page draft memorandum with the 12
statement, "Any comments you have would be much appreciated." 13
Email from Lerner, "OLC draft opinion on Sex Trafficking, AIDS 14
Act grant restrictions." J.A. 92 (July 2, 2004). On July 30, 15
2004, another OLC lawyer sent an updated draft of the memorandum 16
to the HHS general counsel. 17
On September 20, 2004, an OLC official explained in 18
response to the original February inquiry from USAID and HHS as 19
to the constitutionality of the pledge requirement that "we 20
believe that HHS may implement these provisions. If the 21
provisions are challenged in court, the Department stands ready 22
to defend their constitutionality, in accordance with its 23
longstanding practice of defending congressional enactments under 24
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such circumstances." Levin Letter at 1-2 (footnotes omitted). 1
That letter made no reference to the July OLC memos. It offered 2
only sparse explanation of the legal basis for OLC's conclusion 3
that the pledge requirement could be defended. Id. 4
On May 3, 2005, HHS issued a new policy outlining its 5
updated "funding restrictions," which explained that "any 6
recipient must have a policy explicitly opposing prostitution and 7
sex trafficking." HHS Funding Announcement, "Increasing Access 8
to HIV Counseling and Testing (VCT) and Enhancing HIV/AIDS 9
Communications, Prevention, and Care in Botswana, Lesotho, South 10
Africa, Swaziland and Cote d'Ivoire" at 10, J.A. 218 (May 3, 11
2005). The document does not explain the basis for that policy, 12
nor refer to it as a change in policy. 13
On June 9, 2005, USAID issued an updated AAPD that 14
required domestic grantees to "have a policy explicitly opposing 15
prostitution and sex trafficking." USAID AAPD 05-04, 16
"Implementation of the United States Leadership against HIV/AIDS 17
Tuberculosis and Malaria Act of 2003 - Eligibility Limitation on 18
the Use of Funds and Opposition to Prostitution and Sex 19
Trafficking" at 5, J.A. 225 (June 9, 2005). 20
In this AAPD, USAID did state that "[c]onsistent with 21
guidance from the U.S. Department of Justice," USAID would "now 22
apply [the pledge requirement] to U.S. organizations as well as 23
foreign organizations." June 2005 AAPD at 2, J.A. 223. Such 24
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reference to guidance from the DOJ does not, however, indicate 1
that USAID (or HHS) adopted the reasoning of the July memoranda. 2
Nor does the fact that the agencies acted in conformity with the 3
July memoranda establish that the agencies adopted their 4
reasoning. Grumman, 421 U.S. at 184. "Mere reliance of a 5
document's conclusions does not necessarily involve reliance on a 6
document's analysis: both will ordinarily be needed before a 7
court may properly find adoption or incorporation by reference." 8
La Raza, 411 F.3d at 358. 9
When Tobias testified before Congress that USAID had 10
changed its policy, he explained that the OLC's tentative advice 11
had been withdrawn in mid- to late-September 2004. See Tobias 12
Testimony, J.A. 236. That appears to be a reference to the 13
September 2004 OLC letter, not to either of the July 2004 draft 14
memoranda. 15
On the record before us, then, Tobias's testimony 16
referenced the September 2004 letter. The lack of any specific 17
reference to the July 2004 memoranda by either USAID or HHS are 18
further indications that the July memoranda were in fact parts of 19
the predecisional and deliberative process that yielded the 20
September 2004 letter. 21
The July 2007 letter to Congressman Waxman also 22
explained the change in policy solely by reference to the 23
September 2004 letter. Although the July 2007 letter was not 24
45

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written by a decisionmaker and therefore could not have served as 1
a basis for express adoption or incorporation by reference, it 2
serves as evidence that it was the September 2004 letter, and not 3
the July 2004 draft memoranda, that led to HHS and USAID's 4
decisions to implement the pledge requirement with respect to 5
U.S.-based organizations. 6
In sum, there is no evidence that the USAID or HHS 7
based its change in policy on the draft memoranda it seeks. We 8
therefore cannot conclude, as did the district court, that either 9
agency expressly adopted or incorporated by reference these 10
drafts in explaining their policy change. In such a 11
circumstance, ordering release of these never-finalized memoranda 12
would fail to "safeguard and promote agency decisionmaking 13
processes" by, for example, not "protect[ing] against confusing 14
the issues and misleading the public by dissemination of 15
documents suggesting reasons and rationales for a course of 16
action which were not in fact the ultimate reasons for the 17
agency's action," and failing to "assure that subordinates within 18
an agency will feel free to provide the decisionmaker with their 19
uninhibited opinions and recommendations without fear of later 20
being subject to public ridicule or criticism . . . ." 21
Providence Journal, 981 F.2d at 557 (quoting Coastal States, 617 22
F.2d at 866); see also Grumman, 421 U.S. at 184-85 ("[If] the 23
evidence utterly fails to support the conclusion that the 24
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reasoning in the reports is adopted by the Board as its 1
reasoning, even when it agrees with the conclusion of a 2
report, . . . the reports are not final opinions and do fall 3
within Exemption 5."). 4
We conclude that the district court erred in ordering 5
disclosure of the July memoranda because there is insufficient 6
evidence that those memoranda were expressly adopted or 7
incorporated by reference by USAID, or became the "working law" 8
of the agency, sufficient to remove the deliberative-process 9
protection. 10
III. Attorney-Client Privilege 11
The defendants argue that even if the February 2004 12
memorandum is otherwise subject to disclosure, it is protected 13
from such disclosure by the attorney-client privilege, Defs.' Br. 14
at 51-52, which is encompassed by Exemption 5, La Raza, 411 F.3d 15
at 360. 18 "The attorney-client privilege protects communications 16
(1) between a client and his or her attorney (2) that are 17
18 In its reply brief, the defendants for the first time
argue that the plaintiff has waived its argument that the
February 2004 document is not protected by the attorney-client
privilege because the argument was not raised below. Defs.'
Reply at 20-21. A review of the plaintiff's motion for summary
judgment establishes otherwise. See Mem. in Supp. of Pl.'s Mot.
for Summ. J., Brennan Center v. DOJ, No. 09 Civ. 8756, at 17-19
(S.D.N.Y. Jan. 28, 2011), ECF No. 21. Indeed, the district court
considered this argument, concluding that the defendants'
argument that the attorney-client privilege protected that
document from disclosure "must fail."
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intended to be, and in fact were, kept confidential (3) for the 1
purpose of obtaining or providing legal assistance." United 2
States v. Mejia, 655 F.3d 126, 132 (2d Cir.), cert. denied, 132 3
S. Ct. 553 (2011). "[T]he attorney-client privilege protects 4
most confidential communications between government counsel and 5
their clients that are made for the purpose of obtaining or 6
providing legal advice." In re County of Erie, 473 F.3d 413, 418 7
(2d Cir. 2007). 8
In La Raza, we explained that "[l]ike the deliberative 9
process privilege, the attorney-client privilege may not be 10
invoked to protect a document adopted as, or incorporated by 11
reference into, an agency's policy." 411 F.3d at 360. The 12
reasons underlying the absence of Exemption 5 protection for such 13
a document otherwise covered by the deliberative-process 14
exemption also underlie the agency’s loss of the protection of 15
the attorney-client privilege. 16
[O]nce an agency adopts or incorporates [a] 17
document, frank communication will not be 18
inhibited. Indeed, once an attorney's (or 19
employee's) recommendation becomes agency 20
law, the agency is then responsible for 21
defending that policy, and the attorney (or 22
employee) 'will generally be encouraged 23
rather than discouraged' by public knowledge 24
that their policy suggestions or legal 25
analysis have been adopted by the agency." 26
27
Id. (quoting Sears, 421 U.S. at 161). As we explained, "We 28
cannot allow the Department to make public use of the Memorandum 29
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when it serves the Department's ends but claim the attorney- 1
client privilege when it does not." Id. at 361. 2
As with respect to the lawyer-client privilege in other 3
contexts, "it is vital to [such] a claim . . . that the 4
communications between client and attorney were made in 5
confidence and have been maintained in confidence." Mejia, 655 6
F.3d at 134 (quoting In re Horowitz, 482 F.2d 72, 81-82 (2d Cir. 7
1973)). And "[c]ourts have found waiver by implication when a 8
client testifies concerning portions of the attorney-client 9
communication, . . . and when a client asserts reliance on an 10
attorney's advice as an element of a claim or defense . . . . " 11
In re County of Erie, 546 F.3d 222, 228 (2d Cir. 2008) (internal 12
quotation marks omitted). A party's reliance on an otherwise 13
privileged communication to assert a claim or defense is similar 14
to the type of express adoption or incorporation by reference 15
that vitiates Exemption 5 protection -- in either case the party 16
cannot invoke that relied-upon authority and then shield it from 17
public view. The references to the February 2004 memorandum that 18
served to remove the deliberative-process privilege thus also 19
constitute waiver of the attorney-client privilege. 20
On this score, the defendants invoke the same argument 21
as they did with regard to the deliberative-process exemption -- 22
that the instances of express adoption or incorporation cited by 23
the plaintiff are not sufficient to withdraw the protection of 24
49

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Exemption 5. We have concluded to the contrary with respect to 1
the deliberative process exemption for the reasons set forth 2
above. 3
The defendants urge us to revisit our holding in La 4
Raza, contending that there we misconstrued Sears. La Raza is 5
the law of this Circuit and this panel, acting as a panel cannot 6
change it. See, e.g., City of New York v. Mickalis Pawn Shop, 7
LLC, 645 F.3d 114, 131 n.18 (2d Cir. 2011) (acknowledging that we 8
are bound by the law of the Circuit as established by one or more 9
previous panel decisions); European Cmty. v. RJR Nabisco, Inc., 10
424 F.3d 175, 179 (2d Cir. 2005) ("We are bound by the decisions 11
of prior panels until such time as they are overruled either by 12
an en banc panel of our Court or by the Supreme Court.") 13
(internal quotation marks omitted), cert. denied, 546 U.S. 1092 14
(2006). 15
We note nonetheless that the government focuses on the 16
Sears Court's statement that "[t]echnically, of course, if a 17
document could be, for example, both a 'final opinion' and an 18
intra-agency memorandum within Exemption 5, it would be 19
nondisclosable, since the Act 'does not apply' to documents 20
falling within any of the exemptions." 421 U.S. at 154 n.21. 21
That footnote was employed in the context of the Court's 22
observation that "Exemption 5 can never apply" to "working law." 23
Id. at 153-54. By prefacing its comment with the term 24
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"technically" the Court suggested that this observation in Sears 1
left the holding of Sears undisturbed –- that when what would 2
otherwise be an exempt memorandum becomes non-exempt because of 3
its status as "working law," or through express adoption or 4
incorporation by reference, for all practical purposes it falls 5
outside of Exemption 5. We are, in other words, inclined to 6
agree with the plaintiff that "[t]he text [of Sears] makes clear 7
that the footnote is contemplating a logical impossibility." 8
Pl.'s Br. at 52. 9
The government points to Federal Open Market Committee 10
v. Merrill, 443 U.S. 340 (1979), for further support. Merrill 11
recognized an Exemption 5 privilege for "confidential commercial 12
information," but noted that "[i]t should be obvious that the 13
kind of mutually exclusive relationship between final opinions 14
and statements of policy, on one hand, and predecisional 15
communications, on the other, does not necessarily exist between 16
final statements of policy and other Exemption 5 privileges." 17
Id. at 360 n.23. But La Raza establishes that when a document 18
has been relied upon sufficiently to waive the deliberative- 19
process privilege, that reliance can have the same effect on the 20
attorney-client privilege. 411 F.3d at 360-61. We conclude that 21
it does so here. 22
51

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CONCLUSION 1
For the foregoing reasons, the district court's grant 2
of summary judgment for the plaintiff is affirmed with respect to 3
the February 2004 memorandum, and reversed and remanded with 4
respect to the July memoranda with instructions to the district 5
court to enter summary judgment for the defendants as to them. 6
52

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