The New York Times Co. v. United States Department of Justice, No. 17-2066 (2d Cir. 2019)Annotate this Case
The Times filed suit under the Freedom of Information Act (FOIA), seeking five DOJ memoranda and accompanying exhibits. The requested documents detail DOJ's legal reasoning and factual analysis in making the determinations, first, that it would formally investigate only two of more than one hundred alleged instances of abuse of detainees allegedly held overseas in the custody of the CIA and that it would not bring criminal charges in either of the two cases. At issue are the two public statements made by the then-Attorney General Eric Holder. The district court granted The Times' motion for summary judgment, holding that Attorney General Holder's public statements expressly adopted the memoranda by relying on their reasoning.
The Second Circuit held American Civil Liberties Union v. National Security Agency, clarified that the "express adoption" exception to Exemption 5 does not apply in the instant context. The court also held that the government waived the privilege over the sections of the memoranda and exhibits relating to the conclusion that a number of the detainees investigated were not in CIA custody. Because Holder referenced this fact in both of his public statements, the court's holding applies to all five of the memoranda and associated exhibits. However, the court held that none of the remaining three statements at issue divulges the content of the memoranda with enough specificity to constitute waiver of the work product privilege.
The court also held that Holder’s references to U.S. Attorney John Durham's reports, although clearly spoken with an intent to explain the Department's decision not to prosecute, did not constitute "testimonial use" of the reports and therefore did not waive the work product privilege over the documents. Furthermore, Holder's use of Durham's memoranda was not so unfair as to implicate the same concerns in John Doe Co. v. United States. Accordingly, the court affirmed in part, reversed in part, and remanded.