American Oversight v. U.S. Department of Justice

Background

American Oversight brought this Freedom of Information Act (FOIA) action against the U.S. Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI). It sought 27 interview records concerning investigations of potential campaign-finance violations involving then-candidate Donald J. Trump, the Trump Organization, Michael Cohen, or others representing them, as well as related investigations, including possible obstruction of justice.

The government’s investigations included a prosecution of Michael Cohen and a related investigation into whether unidentified individuals had made false statements, given false testimony, or otherwise obstructed justice. No one other than Cohen was charged as a result of the campaign-finance investigation, and no one was charged as a result of the related obstruction investigation.

The DOJ found 30 responsive interview records. It released seven with redactions and withheld 23. The parties narrowed the dispute to 27 records and the DOJ’s reliance on FOIA Exemptions 5, 6, and 7(C). The records included 21 FBI Form 302s, three interview memoranda prepared by SDNY Special Agents, two sets of prosecutors’ handwritten notes, and one set of handwritten notes prepared by an FBI Special Agent. The DOJ asserted that 20 records were properly withheld in full and seven in part under Exemption 5 and, alternatively, Exemptions 6 and 7(C).

Legal Standard

FOIA generally requires federal agencies to disclose records unless a statutory exemption applies. In a FOIA case, the court reviews the agency’s withholding decision independently, and the agency bears the burden of showing that an exemption applies. The agency may meet that burden with a detailed affidavit, which receives a presumption of good faith.

The parties filed cross-motions for summary judgment, a procedure used when the material facts are not genuinely disputed and the court can decide the case based on the record.

Attorney Work-Product Exemption

The court held that all 27 interview records were protected under FOIA Exemption 5 because they were attorney work product prepared in anticipation of litigation. Exemption 5 protects agency documents that would ordinarily be protected from disclosure in civil litigation, including materials covered by the attorney work-product doctrine.

The court explained that the work-product doctrine protects documents and tangible materials prepared in anticipation of litigation. It can protect both an attorney’s factual investigation and the attorney’s mental impressions, opinions, legal theories, and strategy. The court noted that factual work product may sometimes be discoverable upon a showing of substantial need, while an attorney’s mental impressions and opinions receive stronger protection.

The DOJ submitted an affidavit from Thomas McKay, an Assistant United States Attorney who worked with the FBI on the investigations. McKay stated that the records were prepared so prosecutors could evaluate whether criminal prosecutions were warranted. He also stated that most records were prepared by FBI or SDNY Special Agents acting under the substantial direction of prosecutors, reviewed by prosecutors, and reflected prosecutors’ witness-selection decisions, mental impressions, legal theories, case analysis, and investigative strategy. The court accepted those statements and found that the records were prepared in anticipation of litigation.

The court rejected American Oversight’s argument that the records were not protected because criminal-procedure rules or SDNY policy might require disclosure of interview materials in a criminal case. The court distinguished disclosure obligations in criminal proceedings from FOIA disclosure requirements and held that the possibility of criminal-case disclosure did not eliminate Exemption 5 protection. The court also noted that Cohen pleaded guilty before criminal discovery obligations were triggered and that no criminal discovery was produced to Cohen or his counsel.

The court also rejected American Oversight’s argument that work-product protection was waived because interview subjects or targets necessarily knew the substance of their own interviews. The court found that the records themselves had not been disclosed to adversaries or the public and that the records reflected choices about what to record, omit, emphasize, and how to organize and characterize the information. The court further stated that disclosure of only records concerning subjects or targets could reveal which people had been uncharged subjects or targets of the investigation.

Finally, the court rejected American Oversight’s challenge to the evidence that FBI agents acted under prosecutors’ direction. The court relied on McKay’s declaration and the presumption that government affidavits are submitted in good faith. It also stated that the work-product doctrine protects materials prepared by a party’s representatives and that the Special Agents were representatives of the United States for this purpose.

Because the records were protected under Exemption 5, the court did not decide whether Exemptions 6 and 7(C) also applied.

In-Camera Review

American Oversight alternatively asked the court to conduct an in-camera review, meaning a private judicial inspection of the withheld records. The court denied that request. It found no allegation or evidence that the government’s declarations were submitted in bad faith or were unreliable, and it concluded that the circumstances did not warrant an in-camera inspection.

Disposition

The court denied American Oversight’s motion for summary judgment, granted the defendants’ motion for summary judgment, denied the request for in-camera review, and directed the clerk to close the case.