00201299858&uid=f589c263454d2b3a · the opinion. none of the documents has ever been made...

11-4599United States Court of Appeals

FOR THE SECOND CIRCUITDocket No. 11-4599

BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW,

Plaintiff-Appellee,—v.—

UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATESDEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED

STATES AGENCY FOR INTERNATIONAL DEVELOPMENT,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR DEFENDANTS-APPELLANTS

PREET BHARARA,United States Attorney for the

Southern District of New York,

Attorney for Defendants-Appellants.

86 Chambers StreetNew York, New York 10007(212) 637-2703

BENJAMIN H. TORRANCE,SARAH S. NORMAND,Assistant United States Attorneys,

Of Counsel.

TONY WEST,Assistant Attorney

General

BETH S. BRINKMANN,Deputy Assistant

Attorney General

MICHAEL S. RAAB,SHARON SWINGLE,Attorneys, Appellate Staff

Civil Division,

Department of Justice

Case: 11-4599 Document: 41 Page: 1 01/06/2012 491299 64

TABLE OF CONTENTSPAGE

Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . 4

Question Presented . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. Factual Background . . . . . . . . . . . . . . . . . . . 6

B. District Court Decision . . . . . . . . . . . . . . . . 10

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . 17

ARGUMENT .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . 20

FOIA DOES NOT REQUIRE DISCLOSURE OF THE

PRIVILEGED OLC DOCUMENTS . . . . . . . . . . . . . . 21

A. A Document Protected by the Deliberative-

Process Privilege Is Exempt from Compelled

Disclosure Under FOIA Exemption 5 Unless

It Has Been Expressly Adopted by the

Agency as Setting out the Rationale for

Agency Action . . . . . . . . . . . . . . . . . . . . . . . 21


ii

PAGE

B. The Three OLC Documents at Issue in This

Litigation Do Not Meet the Stringent

Criteria Established in Sears and La Raza

for Adoption of a Deliberative-Process-

Privileged Document . . . . . . . . . . . . . . . . . 28

1. The Three OLC Documents Are

Predecisional, Deliberative-Process-

Privileged Documents That Are

Shielded from Disclosure Under

FOIA Exemption 5 . . . . . . . . . . . . . . . . 29

2. No Agency Explicitly Adopted or

Incorporated by Reference the Analysis

in the Privileged OLC Documents as

the Agency’s Own Official Rationale .. 31

a. The District Court Erred in

Relying on the Fact That the

Agencies Acted in Accordance

with the Conclusions in OLC’s

Memoranda to Find

Incorporation . . . . . . . . . . . . . . . . . 32

b. The District Court Erred in

Relying on Confidential, Leaked,

and Unsourced Agency Statements

About the Privileged Documents as

the Basis for Holding That the

Documents Were Adopted .. . . . . . 39


iii

PAGE

c. The District Court Erred in

Relying on Statements by

Employees of Other Agencies to

Conclude That HHS and USAID

Expressly Adopted the OLC

Documents as Agency Policy .. . . . 44

d. The Remaining Stray and Isolated

References to the February 2004

Informal Advice Memorandum Do

Not Show Express Adoption by the

Agencies of That Document’s

Rationale . . . . . . . . . . . . . . . . . . . . 46

C. The District Court Also Erred in

Compelling Disclosure of the February

2004 Informal Advice Memorandum,

Because That Memorandum Is an

Attorney-Client-Privileged Document

That Is Shielded from Disclosure Under

FOIA Exemption 5 . . . . . . . . . . . . . . . . . . . 51

1. The “Evidence” of Adoption of the

February 2004 OLC Informal Advice

Memorandum Was Inadequate to

Overcome the Attorney-Client

Privilege Under La Raza . . . . . . . . . . . 52

2. La Raza Erred in Extending the Sears

Adoption Doctrine to Overcome the

Attorney-Client Privilege .. . . . . . . . . . 54

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56


iv

PAGE

TABLE OF AUTHORITIES

Cases:

Afshar v. Department of State, 702 F.2d 1125

(D.C. Cir. 1983) .. . . . . . . . . . . . . . . . . . . . . . . . . 35

Alliance for Open Society Int’l v. USAID,

651 F.3d 218 (2d Cir. 2011) . . . . . . . . . . . . . . . 6, 7

Brinton v. Department of State, 636 F.2d 600

(D.C. Cir. 1980) .. . . . . . . . . . . . . . . . . . . . . . . . . 22

Carney v. DOJ, 19 F.3d 807 (2d Cir. 1994) . . . . . . 20

Coastal States Gas Corp. v. Department of

Energy, 617 F.2d 854 (D.C. Cir. 1980) . . . . 31, 37

Common Cause v. IRS, 646 F.2d 656

(D.C. Cir. 1981) .. . . . . . . . . . . . . . . . . . . . . . 28, 47

In re County of Erie, 473 F.3d 413

(2d Cir. 2007) . . . . . . . . . . . . . . . . . . 27, 30, 31, 40

In re County of Erie, 546 F.3d 222

(2d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Department of Interior v. Klamath Water Users

Protective Ass’n, 532 U.S. 1 (2001) . . . . . . . . . . 22

Federal Open Market Committee v. Merrill,

443 U.S. 340 (1979) . . . . . . . . . . . . . . . . . . . . . . 54

Ferguson v. FBI, 957 F.2d 1059 (2d Cir. 1992) . . . . 5

Grand Central Partnership, Inc. v. Cuomo,

166 F.3d 473 (2d Cir. 1999) . . . . . . . . . . . . . 30, 31

Hopkins v. HUD, 929 F.2d 81 (2d Cir. 1991) . . 21, 30


v

PAGE

Miscavige v. IRS, 2 F.3d 366 (11th Cir. 1993) . . . . 20

NLRB v. Sears, Roebuck & Co.,

421 U.S. 132 (1975) . . . . . . . . . . . . . . . . . . . passim

National Council of La Raza v. DOJ,

411 F.3d 350 (2d Cir. 2005) . . . . . . . . . . . . . passim

National Wildlife Federation v. U.S. Forest

Service, 861 F.2d 1114 (9th Cir. 1988) . . . . . . . 37

Providence Journal Co. v. Department of the

Army, 981 F.2d 552 (1st Cir. 1992) . . . . . . . . . . 36

Renegotiation Board v. Grumman Aircraft

Engineering Corp., 421 U.S. 168 (1975) . . . passim

Tigue v. DOJ, 312 F.3d 70 (2d Cir. 2002) . . . . . passim

United States v. Chen, 99 F.3d 1495

(9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 42

United States v. Workman, 138 F.3d 1261

(8th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) . . . 6

Wolfe v. HHS, 839 F.2d 768 (D.C. Cir. 1988) . . . . . 37

Wood v. FBI, 432 F.3d 78 (2d Cir. 2005) . . . . . passim

Statutes:

5 U.S.C. § 552. . . . . . . . . . . . . . . . . . . . . . . . . . . passim

22 U.S.C. § 7110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

22 U.S.C. § 7631. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7


vi

PAGE

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

28 U.S.C. § 1292. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Rule:

Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Legislative History:

H.R. Rep. No. 89-1497 (1966), reprinted in 1966

U.S.C.C.A.N. 2418 . . . . . . . . . . . . . . . . . . . . . . . 22

Miscellaneous:

3 Weinstein’s Federal Evidence (J. McLaughlin, ed.,

3d ed. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53


United States Court of AppealsFOR THE SECOND CIRCUIT

Docket No. 11-4599

BRENNAN CENTER FOR JUSTICE AT NEW YORK

UNIVERSITY SCHOOL OF LAW,

Plaintiff-Appellee,

—v.—

UNITED STATES DEPARTMENT OF JUSTICE, UNITED

STATES DEPARTMENT OF HEALTH AND HUMAN

SERVICES, UNITED STATES AGENCY FOR

INTERNATIONAL DEVELOPMENT,

Defendants-Appellants.

BRIEF FOR DEFENDANTS-APPELLANTS

Preliminary Statement

The Department of Justice (“DOJ”), Department of

Health and Human Services (“HHS”), and United

States Agency for International Development

(“USAID”) appeal from an order of the United States

District Court for the Southern District of New York

(Victor Marrero, J.), granting partial summary judg-

ment to plaintiff, the Brennan Center for Justice, and

directing disclosure under the Freedom of Information


2

Act (“FOIA”) of three documents authored by DOJ’s

Office of Legal Counsel (“OLC”).

The three documents that have been ordered

disclosed are a February 2004 informal legal advice

memorandum by OLC addressing the constitutionality

of two statutory provisions, which OLC provided to its

client agencies; and two July 2004 drafts of a never-

finalized formal opinion by OLC analyzing the same

provisions. The informal memorandum was prepared

for Executive Branch agencies by OLC in its role as

legal adviser, in order to assist the agencies in their

deliberations about agency policy. The two drafts of the

OLC opinion memorandum were shared with agency

counsel to solicit their comments for OLC’s benefit, as

part of OLC’s deliberations about whether to finalize

the opinion. None of the documents has ever been made

public.

The district court correctly recognized that the three

OLC documents are protected by the deliberative-

process privilege and, for the first document, the

attorney-client privilege. As such, FOIA’s Exemption 5

exempts the documents from disclosure. The district

court held, however, that the government had lost the

protection of Exemption 5, on the theory that the

documents had been expressly adopted or incorporated

by reference as official government policy. The district

court invoked NLRB v. Sears, Roebuck & Co., 421 U.S.

132 (1975), and National Council of La Raza v. DOJ,

411 F.3d 350 (2d Cir. 2005), and ordered disclosure.

The district court’s ruling was erroneous. La Raza

held that a privileged OLC memorandum was required

to be disclosed because it had been adopted as official

DOJ policy, where high-level DOJ officials had de-


3

scribed the memorandum’s contents and summarized

its reasoning in their public statements to justify a new

policy; high-level officials had repeatedly invoked the

rationale set out in the memorandum as the basis for

the change in policy; the Attorney General had publicly

characterized the analysis in the memorandum as “the

policy of the Department”; and DOJ officials had

suggested that state and local law enforcement officials

rely on the rationale of the memorandum and change

their own policies accordingly. 411 F.3d at 353–55.

Nothing comparable is presented in this case. The

relevant government agencies made no contemporane-

ous reference to the privileged documents as the basis

for their conduct. Rather, the district court relied on the

assumption that government officials followed the

advice given by OLC in its confidential memoranda.

But that theory—that a government agency waives the

confidentiality of a privileged legal-analysis document

because acting in accordance with legal advice somehow

impliedly adopts the privileged document—flouts the

case law and common sense. The fact that references in

other confidential documents to the OLC advice and

draft opinions were either improperly leaked at a later

point in time or were provided only in response to a

FOIA request, years after the fact, does not support the

district court’s ruling that the analyses in the OLC

documents were actually incorporated by the agencies

as part of their own policies. Similarly, stray references

by agency officials about the conclusion of an OLC

document, without any showing that agency officials

agreed with OLC’s underlying rationale or intended to

adopt that rationale as the agency’s own justification

for a policy, do not satisfy the stringent standard for

incorporation of a privileged document under La Raza


4

and Sears. And even if the standard for incorporation

under La Raza had been met, compelled disclosure

under FOIA of one of the documents in this case would

nonetheless be improper because the incorporation

doctrine set forth in Sears is limited to documents

covered by the deliberative-process privilege and does

not extend to attorney-client communications.

If left standing, the district court’s opinion could

seriously impair the ability of Executive Branch

agencies to seek legal advice as part of their delibera-

tions about what agency action to take. Under the

district court’s approach, when an agency relies publicly

on the conclusion in a confidential legal advice memo-

randum, a FOIA requester could compel the disclosure

of that advice in its entirety. This would undermine the

ability of government attorneys to provide candid and

forthright advice in writing to their client agencies.

Furthermore, the compelled disclosure of even draft

opinions would deter government lawyers from circulat-

ing drafts and could harm the overall quality of govern-

ment decisionmaking. Ultimately, the threat of com-

pelled disclosure would lead to less, rather than

greater, government transparency. Nothing in FOIA

supports that result.

Jurisdictional Statement

The district court had jurisdiction over this action

pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.

§ 1331. The district court entered an order compelling

disclosure of the three OLC documents at issue on

August 30, 2011 (Special Appendix (“SPA”) 1–21), and

the government filed a timely notice of appeal on

October 28, 2011 (Joint Appendix (“JA”) 393). This


5

Court has jurisdiction over this appeal pursuant to

28 U.S.C. §§ 1291 and 1292(a)(1). See Ferguson v. FBI,

957 F.2d 1059, 1063 (2d Cir. 1992).

Question Presented

Whether the government may properly assert

FOIA’s Exemption 5 to withhold from disclosure three

privileged documents containing legal advice by OLC,

when the agencies to which OLC provided the legal

advice did not expressly adopt the reasoning contained

in the documents to justify final agency action; govern-

ment officials discussed the substance of the documents

only in non-public and privileged communications; and

agency officials made, at most, only passing public

references to OLC conclusions, without discussing or

adopting OLC’s underlying reasoning as the agencies’

own.

Statement of the Case

In 2005, plaintiff submitted FOIA requests to DOJ,

HHS, and USAID. (JA 247, 269, 301). In response,

those agencies withheld from release certain documents

pursuant to FOIA’s Exemption 5, 5 U.S.C. § 552(b)(5),

which permits the government to withhold “inter-

agency or intra-agency memorandums or letters which

would not be available by law to a party other than an

agency in litigation with the agency.” The determina-

tions that the documents are covered by Exemption 5

were affirmed in administrative appeals within the

respective agencies. (JA 264, 267, 277, 309).

Plaintiff filed the complaint in this action on Octo-

ber 15, 2009. (JA 7). On January 15, 2010, the govern-

ment provided plaintiff with a draft index of withheld


6

documents pursuant to Vaughn v. Rosen, 484 F.2d 820

(D.C. Cir. 1973), describing the nature of each docu-

ment and the specific FOIA exemption that applied to

it. (JA 312–15). After the district court indicated a

desire to resolve this action without further litigation,

the parties consented to in camera, ex parte review of

the documents. (JA 27–28). Following in camera

conferences with the district court on April 22 and

May 5, 2010, the government agreed to disclose certain

information, including heavily redacted versions of the

three OLC documents now at issue. (JA 27–28). Dissat-

isfied with the redacted versions, the Brennan Center

moved for summary judgment regarding those three

documents. (JA 124). The government opposed that

motion and cross-moved for summary judgment.

(JA 316).

On August 30, 2011, the district court entered an

order granting summary judgment to the Brennan

Center, denying the government’s cross-motion, and

directing disclosure of unredacted versions of the three

OLC documents. (SPA 1–21). On October 28, 2011, the

government appealed. (JA 393).

Statement of Facts

A. Factual Background

This litigation arises out of a FOIA request submit-

ted in 2005 by the Brennan Center to DOJ, HHS, and

USAID. The Brennan Center is the lead counsel for the

plaintiffs in a separate action currently pending before

this Court, Alliance for Open Society Int’l v. USAID

(“AOSI”), 651 F.3d 218 (2d Cir. 2011), pet. for reh’g filed

(Sept. 6, 2011), which challenges the constitutionality


7

of a funding-eligibility condition in the United States

Leadership Against HIV/AIDS, Tuberculosis, and

Malaria Act, 22 U.S.C. § 7631(f).* That funding-eligibil-

ity condition was initially applied only to foreign

organizations, but the implementing agencies began

applying the condition to U.S.-based organizations in

2005. See 651 F.3d at 225. The plaintiffs in AOSI

challenged the constitutionality of the funding-eligibil-

ity condition, alleging that its application to U.S.

organizations violated the First Amendment. See id.

Shortly before filing the complaint in AOSI, the

Brennan Center submitted its FOIA request, which

seeks “any and all documents containing guidance

provided by [OLC] to any representative of [HHS or

USAID] prior to September 20, 2004, relating to the

enforcement of 22 U.S.C. § 7631(f) and in [sic] 22 U.S.C.

§ 7110(g)(2).” (JA 14–18, 247, 269, 301). Although FOIA

requires agencies to provide agency records to request-

ers, Exemption 5 exempts from disclosure documents

that are protected by litigation privileges, 5 U.S.C.

§ 552(b)(5), including the deliberative-process and

attorney-client privileges. The agencies identified

documents that were responsive to the Brennan Cen-

ter’s request, but withheld certain of the documents on

* That provision generally requires that, in order

to be eligible for funding under the Act, an organization

must have a policy explicitly opposing prostitution and

sex trafficking. The Trafficking Victims Protection

Reauthorization Act contains a somewhat similar

provision, 22 U.S.C. § 7110(g)(2), which requires a

funding recipient to state its opposition to the practice

of prostitution.


8

the ground that they are protected against compelled

disclosure under Exemption 5. (JA 14–18, 250–310).

Among the documents withheld were the three OLC

documents that are the subject of this appeal.

The first document at issue is an informal legal

advice memorandum prepared by OLC, which contains

OLC’s legal advice about the constitutionality of the

funding-eligibility conditions in the Leadership Act and

the Trafficking Victims Protection Reauthorization Act

(“TVPRA”). (JA 319–20, 327–29). The memorandum

was prepared by OLC in response to a confidential

request by HHS and USAID, and was forwarded in

confidence to the agencies on February 17, 2004, with

the caveat that the memorandum represented OLC’s

“tentative views, which might need to be altered after

further analysis.” (JA 319–20, 327–29).

The other two documents are drafts, dated July 2

and July 29, 2004, of a potential formal OLC opinion

that was never finalized. (JA 320, 330–92). These two

drafts concerned the same statutory provisions that

were the subject of the February 2004 informal advice

memorandum. (JA 320). The July 2 draft was transmit-

ted to HHS by an OLC official, who explained that the

draft opinion was being provided to HHS to obtain that

agency’s comments. (JA 320, 331). The July 29 draft

was similarly provided to USAID by OLC for the

purpose of obtaining USAID’s comments. (JA 320, 363).

The OLC official who forwarded the July 29 draft

explained that he was “circulating this memorandum in

draft form on the understanding that it will be main-

tained as a close hold and not shared outside your office

or with others inside your office who do not have a

specific need to review it.” (JA 363). The same expecta-


9

tion of confidentiality applied with respect to the

sharing of the July 2 draft with HHS, because OLC

does not share drafts of its opinions without an expecta-

tion that those reviewing them will maintain their

confidentiality. (JA 320). Both the July 2 draft and the

July 29 draft are marked clearly in bold type, “DRAFT.”

(JA 320, 332, 364). No formal OLC opinion on the issue

was ever finalized or issued. (JA 320).

In the course of the district court proceedings, the

government voluntarily released heavily redacted

versions of all three documents, which disclosed the

cover emails that transmitted the memoranda, as well

as the subject of the memoranda, but redacted the legal

analysis contained in the memoranda. (JA 36–37, 60–

91, 94–123, 327–92). The government also subsequently

released voluntarily, as a discretionary matter, a small

portion of the informal advice memorandum, i.e., the

statement in the memorandum concluding that the

funding-eligibility conditions in the Leadership Act and

the TVPRA “cannot be constitutionally applied to U.S.

organizations” but “can be constitutionally applied to

foreign organizations . . . when they are engaged in

activities overseas.” (JA 329). The government did not,

however, release any of the informal advice memoran-

dum’s reasoning in support of that conclusion, nor did

it release any portion of the legal analysis or conclu-

sions in the draft OLC advice memoranda. (JA 321,

329). It is the remaining portions of those documents,

containing OLC’s legal analysis regarding the constitu-

tionality of the funding-eligibility conditions, that have

been ordered disclosed by the district court.


10

B. District Court Decision

The Brennan Center sought compelled disclosure of

unredacted versions of the three OLC documents, and

the parties cross-moved for summary judgment. After

reviewing unredacted versions of the three documents

in camera, the district court granted judgment in favor

of the Brennan Center and ordered disclosure.

The district court correctly recognized that the three

OLC documents are privileged, and that they are

covered by FOIA Exemption 5, which protects such

privileged documents from disclosure. (SPA 10 (holding

that the three OLC documents are “on their face both

pre-decisional and deliberative”), 18 (addressing attor-

ney-client privilege)). However, the court held that

disclosure was required, on the basis that Exemption 5

does not apply if “the agency has chosen ‘expressly to

adopt or incorporate by reference a memorandum

previously covered by Exemption 5 in what would

otherwise be a final opinion.’ ” (SPA 8 (quoting La Raza,

411 F.3d at 356)); see Sears, 421 U.S. at 150, 161–62.

The district court relied on this Court’s decision in

La Raza, which held that “ ‘repeated references’ ” to a

privileged memorandum by the agency head and high-

ranking advisors, the substance of those references, and

the way in which the references were used to assure

third parties as to the legality of actions that they

might also take, served to demonstrate that the agency

“had expressly adopted the memorandum as part of its

official policy.” (SPA 8 (quoting 411 F.3d at 357)). The

district court purported to recognize that, under La

Raza and this Court’s other decisions, the fact that an

agency has accepted the conclusions of a privileged


11

document is not sufficient for adoption; rather, “the

agency must adopt the document’s analysis, as well.”

(SPA 8). Moreover, the district court noted that “La

Raza held that there must be actual evidence, rather

than mere speculation, to support a party’s contention

that an agency adopted or incorporated a document by

reference,” and that “neither [casual reference] to a

privileged document, nor a simple ‘yes or no determina-

tion without providing any reasoning at all,’ ” will

demonstrate that the agency has adopted the docu-

ment’s analysis. (SPA 9 (quoting La Raza, 411 F.3d at

359)).

The district court nevertheless concluded, based on

its review of the evidence submitted by the parties as

well as the withheld portions of the documents re-

viewed by the court in camera, that the three OLC

memoranda had lost the protection of the deliberative-

process privilege under the adoption doctrine. (SPA 10).

The district court relied on a series of agency state-

ments in support of the court’s conclusion that the three

OLC documents were adopted by the client agencies.

First, the district court cited the fact that, after HHS

and USAID received the February 2004 OLC informal

advice memorandum, HHS and USAID changed course

from prior practice and publicly announced that they

would apply the funding-eligibility condition in the

Leadership Act only to foreign organizations. (SPA 11–


12

12).* Those public announcements did not reference the

OLC memorandum. (SPA 11–12).

Second, the district court pointed to the statement

in a USAID publication on August 3, 2004, that “[t]he

US Government has determined that it is appropriate

to apply the requirement set forth in subsection

113(g)(2) [of the TVPRA] only to foreign organizations,

including public international organizations.” (JA 202,

quoted in SPA 13). The district court also pointed to a

statement in a footnote in a July 2004 USAID guidance

document that “[OLC], in a draft opinion, determined

that [the funding-eligibility condition in the Leadership

Act] 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.” (JA 197, quoted in SPA 13).

Third, the district court relied on a letter sent on

September 20, 2004, from an OLC official to HHS’s

General Counsel, which describes OLC’s “earlier”

advice that the funding-eligibility conditions in the

Leadership Act and TVPRA can be constitutionally

applied “only to foreign organizations acting overseas,”

but explains that OLC has “reviewed the matter fur-

ther” and is “withdrawing that tentative advice”

because there are “reasonable argument[s] to support

[the] constitutionality” of the provisions. (JA 207–08,

* Throughout its order, the district court referred

collectively to the funding-eligibility conditions imposed

by the Leadership Act and the TVPRA. Most of the

agency statements and actions that the district court

analyzed, however, related to only one of the statutory

provisions.


13

quoted in SPA 13–14). That letter was never officially

published or released by OLC or HHS. A copy of the

letter appears to have been improperly leaked, how-

ever, and the letter was later made public by members

of Congress. See http://democrats.oversight.house.gov/

images/stories/documents/20050426114409-73588.pdf;

(JA 213).

Fourth, the district court pointed to a Wall Street

Journal article published in February 2005, which

reported, without identifying a source, that the Execu-

tive Branch had previously applied the funding-eligibil-

ity conditions in the Leadership Act and TVPRA “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 that “the

Justice Department reversed itself ” in Fall 2004.

(JA 240, quoted in SPA 14).

Fifth, the district court cited testimony by a USAID

official in a March 2005 congressional hearing that

OLC “provided some tentative advice initially” that the

funding-eligibility conditions in the Leadership Act

should be applied only to foreign organizations, but

subsequently “withdrew that earlier tentative advice

and advised that that provision was intended by the

Congress to apply without that limitation to both

domestic organizations as well as foreign organizations.

And so I’m simply following the legislation and the

advice to implement that.” (SPA 14–15 (quoting

JA 236)).

Sixth, the district court pointed to the fact that, in

May 2005 and June 2005, HHS and USAID announced

that they would apply the Leadership Act funding-


14

eligibility condition to both U.S. and foreign organiza-

tions. (SPA 15). This policy, the district court empha-

sized, marked a change from the agencies’ prior imple-

mentation of the statutory provision. (SPA 11–12).

Seventh, and finally, the district court relied on the

fact that, in 2007, a DOJ official sent a letter to Rep.

Henry Waxman explaining that DOJ had provided

tentative advice to HHS and USAID in February 2004

that the funding-eligibility conditions could constitu-

tionally be applied only to foreign organizations, but

that DOJ had subsequently reversed its position.

(SPA 15 (quoting JA 230–32)).

“Taken as a whole,” the district court concluded,

“this record reveals that, during 2004 and 2005, an

internal conversation was occurring within the Govern-

ment and the Administration regarding the constitu-

tional permissibility of applying the [funding-eligibility

conditions] to U.S. domestic organizations.” (SPA 16).

The court reasoned that, “between February and

September 2004, USAID and HHS adopted as agency

policy both the conclusions provided” in the February

2004 OLC informal advice memorandum that the

funding-eligibility conditions could not be applied to

U.S. organizations, and also “OLC’s reasoning and

analysis.” (SPA 16 (emphasis added)). The district court

expressly recognized that “the acknowledgment of

adoption here may not be as explicit as in La Raza,” but

the court nonetheless held that it was sufficient to strip

the OLC memoranda of their privileged status.

(SPA 16).

The district court rejected the argument that only

explicit and public reliance by an agency on privileged

legal advice is sufficient for adoption. Instead, the


15

district court based its finding of adoption, in part, on

the court’s in camera review of the substance of the

withheld, privileged materials. (SPA 10, 16). The court

also held that adoption was apparent “from the public

record alone,” citing the exchange of emails between the

agencies and OLC “before and after” the issuance of the

informal advice, public notices shortly after the infor-

mal advice, and later statements by the agencies and

DOJ. (SPA 16–17). This record, according to the district

court, “support[s] the conclusion that HHS and USAID

took their marching orders—and the rationale for those

orders—directly from DOJ and the Administration.”

(SPA 17). The court considered irrelevant the fact that

OLC’s February informal advice memorandum was

described on its face as “tentative.” The court asserted

that that “ignores the explicit policies promulgated by

HHS and USAID . . . which, in accordance with the

[informal advice], applied the [funding conditions] to

foreign organizations only.” (SPA 17).

Turning to the two July 2004 drafts of the never-

completed OLC formal opinion memorandum, the

district court found that their “conclusions and analysis

. . . were the basis for the Government’s determination

to alter its policy and apply the [funding-eligibility

conditions] to U.S.-based organizations.” (SPA 17–18).

In doing so, the district court for the first time made

public the conclusions of the two drafts, which had

never been revealed publicly either in proceedings

before the district court or otherwise; indeed, the

Brennan Center’s motion for summary judgment made

clear that it had believed the drafts had reached the

opposite conclusion, that the funding conditions could


16

not be applied to domestic recipients.* According to the

district court, OLC’s change in position and reference to

“reasonable arguments” supporting constitutionality of

the statute were discussed in the leaked September 20,

2004, letter from OLC to HHS, then repeated in the

testimony by the USAID Administrator in 2005 and

“ratified by HHS and USAID through those agencies’

official policy announcements in May and June 2005.”

(SPA 17–18). The district court concluded that “[t]hese

public statements lead to the inescapable finding that,

at least with respect to the July Memoranda’s treat-

ment of the [funding-eligibility conditions], although

the documents were never mentioned specifically by

name, the Government incorporated the July Memo-

randa by reference.” (SPA 18).

Finally, the district court rejected the government’s

argument that, even if the February 2004 OLC infor-

mal advice memorandum had lost the protection of the

deliberative-process privilege, it was still protected

from disclosure as a privileged attorney-client commu-

nication. Relying on La Raza, the court reasoned that

once the memorandum was, in the court’s view, incorpo-

rated into the official policy of HHS and USAID, the

agencies could no longer rely on the attorney-client

privilege to resist disclosure under FOIA. (SPA 18–19).

The district court ordered the government to produce

* See, e.g., Mem. of Law in Support of Plaintiff ’s

Motion for Summary Judgment dated Jan. 28, 2011,

docket no. 21, at 8 (“the July OLC Opinion was

consistent with the opinions contained in the February

Memo”).


17

unredacted versions of all three OLC documents to the

plaintiff. (SPA 19).

Summary of Argument

The district court’s disclosure order ignores the

careful limits on adoption set by this Court in La Raza

and the Supreme Court in Sears, and marks a signifi-

cant and improper expansion of adoption that would

substantially harm the ability of government agencies

to seek confidential legal advice in the course of setting

agency policy.

Sears held that a document adopted or incorporated

by reference as part of an agency’s final adjudicatory

opinion, which is required to be publicly disclosed under

FOIA, cannot also be predecisional and thus protected

by the deliberative-process privilege under FOIA’s

Exemption 5, 5 U.S.C. § 552(b)(5). This Court in La

Raza applied Sears to find adoption sufficient to

overcome privilege where an agency head and top

agency staff repeatedly, publicly, and expressly invoked

a predecisional document as agency policy, described

and adopted the reasoning of the document as authori-

tative within the agency, and suggested that third

parties rely on the document’s analysis to change their

own policies. La Raza recognized, however, that adop-

tion will not be found unless an agency expressly adopts

both the conclusion and reasoning of a document to

justify the agency’s policy: there must be actual evi-

dence of adoption of the reasoning of the document as

the agency’s own, not just speculation; and the adoption

must be explicit, not inferred from casual references or

otherwise.


18

The district court repeatedly committed the very

errors against which La Raza warned. In finding

incorporation, the district court improperly relied on

the fact that the agencies happened to act in accordance

with the bottom-line conclusions of the documents,

along with non-public statements, casual references to

the conclusion of the February 2004 informal advice

memorandum, and speculative inferences. That ap-

proach was inconsistent with La Raza and Sears, and

would vitiate the deliberative-process and attorney-

client privileges that FOIA and Sears plainly preserved.

The three OLC documents ordered disclosed in this

case were sent in confidence to USAID and HHS by

OLC, whose function is to provide legal advice to

Executive Branch agencies. Two of the documents were

drafts provided in confidence by OLC to solicit feed-

back. Nothing that HHS or USAID said or did can

reasonably be read as explicitly adopting the OLC

documents as agency policy, or as explicitly adopting

the reasoning of those documents as the agency’s own.

In reaching the contrary conclusion, the district court

erroneously relied on the fact that the agencies acted in

accordance with the conclusions in the privileged

documents. But that conduct does not override the

privilege, as both La Raza and Sears make clear. It is

only an agency’s explicit incorporation of the reasoning

of a privileged document as the agency’s own rationale

to justify its policy that constitutes adoption.

The district court also improperly rested its finding

of adoption on confidential agency statements that were

available to the court only because they had been

improperly leaked, or attributed in a press account to

an unsourced agency statement. The court also relied


19

on statements by DOJ officials, which the court miscon-

strued as showing adoption by HHS and USAID. And

the court erroneously relied on a handful of brief, later-

in-time statements about the existence of a privileged

document and the document’s bottom-line conclusion.

The adoption doctrine was not intended to apply

whenever review of the historical record, including

privileged documents, leaked documents, internal

communications released years later, and other non-

public agency communications, supports an inference

that the privileged documents might have influenced

agency decisionmaking.

Under the district court’s approach, if an agency

seeks legal advice as part of its process for deciding

what should be its agency policy, the protections

afforded by FOIA’s Exemption 5 are vitiated if the

agency subsequently acknowledges seeking the advice

of counsel and acts in accordance with that advice. That

is not what Sears held, and such an approach would

threaten the very deliberative process intended to be

protected under Exemption 5.

The district court also erred in ordering disclosure of

the February 2004 informal advice memorandum

because it was protected by the attorney-client privi-

lege. The so-called evidence of adoption on which the

district court relied fell far short of the type of conduct

in La Raza, which was akin to waiver of the attorney-

client privilege. In any event, the adoption doctrine set

forth in Sears applies only to documents as to which the

agency claims a deliberative-process privilege. A

predecisional document that loses its deliberative

quality once incorporated into a final agency decision


20

does not thereby lose the protection of other privileges,

including the attorney-client privilege.

Accordingly, the district court’s order must be

reversed.

A R G U M E N T

Standard of Review

This Court reviews de novo a grant of summary

judgment in a FOIA case, including a partial disclosure

order. La Raza, 411 F.3d at 355. Most FOIA actions are

resolved by summary judgment, Miscavige v. IRS, 2

F.3d 366, 369 (11th Cir. 1993), which is warranted “if

the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to

judgment as a matter of law,” Fed. R. Civ. P. 56(a). In

a FOIA case, “[a]ffidavits or declarations . . . giving

reasonably detailed explanations why any withheld

documents fall within an exemption are sufficient to

sustain the agency’s burden,” and are “accorded a

presumption of good faith.” Carney v. DOJ, 19 F.3d 807,

812 (2d Cir. 1994) (footnote and quotation marks

omitted).


21

FOIA DOES NOT REQUIRE DISCLOSURE OF THEPRIVILEGED OLC DOCUMENTS

A. A Document Protected by the Deliberative-Process Privilege Is Exempt from CompelledDisclosure Under FOIA Exemption 5 Unless ItHas Been Expressly Adopted by the Agencyas Setting out the Rationale for Agency Action

Under FOIA, an agency is required to make certain

agency documents available to the public upon a

reasonable request describing the documents. See

5 U.S.C. § 552(a)(3). That disclosure obligation does not

apply, however, to “inter-agency or intra-agency

memorandums or letters which would not be available

by law to a party . . . in litigation with the agency.”

5 U.S.C. § 552(b)(5). “By this language, Congress

intended to incorporate into the FOIA all the normal

civil discovery privileges.” Hopkins v. HUD, 929 F.2d

81, 84 (2d Cir. 1991). “Stated simply, agency documents

which would not be obtainable by a private litigant in

an action against the agency under normal discovery

rules (e.g., attorney-client, work-product, executive

privilege) are protected from disclosure under Exemp-

tion 5.” Tigue v. DOJ, 312 F.3d 70, 76 (2d Cir. 2002).

In enacting Exemption 5, “[o]ne privilege that

Congress specifically had in mind was the ‘deliberative

process’ or ‘executive’ privilege, which protects the

decisionmaking processes of the executive branch in

order to safeguard the quality and integrity of govern-

mental decisions.” Hopkins, 929 F.2d at 84. “[T]hose

who expect public dissemination of their remarks may

well temper candor with a concern for appearances . . .

to the detriment of the decision making process.” Sears,


22

421 U.S. at 150–51 (quotation marks omitted); accord

Department of Interior v. Klamath Water Users Protec-

tive Ass’n, 532 U.S. 1, 8–9 (2001) (“officials will not

communicate candidly among themselves if each

remark is a potential item of discovery and front page

news”); H.R. Rep. No. 89-1497, at 9 (1966), reprinted in

1966 U.S.C.C.A.N. 2418, 2427 (“a full and frank

exchange of opinions would be impossible if all internal

communications were made public,” and “advice . . . and

the exchange of ideas among agency personnel would

not be completely frank if they were forced to ‘operate

in a fishbowl’ ”). Legal advice, no less than other types

of advice, “fits exactly within the deliberative process

rationale for Exemption 5.” Brinton v. Department of

State, 636 F.2d 600, 604 (D.C. Cir. 1980); see La Raza,

411 F.3d at 356–57.

Under narrow circumstances, an agency may be

required to produce under FOIA a document that was

covered by the deliberative-process privilege when it

was created. The Supreme Court held in Sears that, “if

an agency chooses expressly to adopt or incorporate by

reference [a] . . . memorandum previously covered by

Exemption 5 in what would otherwise be a final opin-

ion, that memorandum may be withheld only on the

ground that it falls within the coverage of some exemp-

tion” other than Exemption 5’s deliberative-process

privilege. 421 U.S. at 161.

In Sears, the general counsel of the National Labor

Relations Board was responsible for deciding whether

to initiate a proceeding in response to a private party’s

allegation; if he declined, that ended the matter and

thus gave the general counsel effective “authority to

adjudicate such a claim against the claimant.” Id. at


23

148. The general counsel’s final decision was docu-

mented in a memorandum summarizing the facts and

providing an “answer to the legal or policy issue sub-

mitted together with a detailed legal rationale” for the

final decision. Id. at 140–42 (quotation marks omitted).

The Sears Court held that, although such a memoran-

dum might have been a predecisional document that

would have been exempt from disclosure under Exemp-

tion 5 at the time it was created, that protection was

lost if the memorandum was subsequently adopted as

a final opinion explaining the basis for the decision not

to file a complaint, which would be a “final opinion . . .

made in the adjudication of cases” and subject to an

affirmative publication requirement under 5 U.S.C.

§ 552(a)(2). Id. at 148–54. The Court also held that any

privileged documents incorporated by reference into a

non-exempt final opinion would also be subject to

compelled disclosure. Id. at 161.

The Sears Court explained that when an agency

expressly adopts advice provided by its employees, the

reasoning “becomes that of the agency and becomes its

responsibility to defend.” Id. at 161. In contrast, when

an agency does not adopt the reasoning of a document,

“even when it agrees with [its] conclusion,” these

considerations do not apply. Renegotiation Board v.

Grumman Aircraft Engineering Corp., 421 U.S. 168,

184–85 (1975); accord Sears, 421 U.S. at 152. The

Supreme Court elaborated in Grumman, decided in

tandem with Sears, that, “absent indication that [the]

reasoning” of a predecisional document has been

adopted by the agency as its own, “there is little public

interest in disclosure of a report.” 421 U.S. at 186.

“ ‘The public is only marginally concerned with reasons


24

supporting a decision which an agency has rejected, or

with reasons which might have supplied, but did not

supply, the basis for a decision which was actually

adopted on a different ground,’ ” and such disclosure

might even be affirmatively misleading in cases in

which the agency had different reasons for its decision.

Id. at 184–86 (quoting Sears, 421 U.S. at 152 (alter-

ations omitted)).

In La Raza, this Court applied the adoption ratio-

nale recognized in Sears to an OLC memorandum that

addressed whether state and local officials had the

authority to enforce civil provisions of federal immigra-

tion law. 411 F.3d at 352. The litigation in La Raza

grew out of a change in policy instituted by DOJ. DOJ

initially took the position, as set out in a published

1996 OLC opinion, that state and local law enforcement

officials lacked authority to enforce the civil, as opposed

to criminal, provisions of the federal immigration laws.

See id. at 352–53. Subsequently, however, DOJ

changed its position. See id. In connection with that

policy change, OLC prepared a confidential memoran-

dum in 2002 analyzing whether state and local law

enforcement may lawfully enforce certain provisions of

federal immigration law. Id. at 352. This Court ulti-

mately concluded that the 2002 OLC memorandum had

been incorporated into DOJ’s official policy in a manner

that rendered it subject to disclosure. Id. at 357–58.

In reaching that conclusion, the La Raza Court

relied on multiple public statements and public refer-

ences by high-ranking government officials which used

the analysis contained in the 2002 OLC memorandum

to explain and justify DOJ’s new policy. Id. The Attor-

ney General’s first public announcement of the change


25

in DOJ policy was a press conference in which he

explained that OLC “has concluded that this narrow,

limited mission we are asking state and local police to

undertake voluntarily—arresting aliens who have

violated criminal provisions of the Immigration and

National[ity] Act, or civil provisions that render an

alien deportable, those individuals who are listed on the

[National Crime Information Center database]—that

narrow mission is within the inherent authority of the

states.” Id. at 353. The Attorney General and another

high-level DOJ official subsequently sent letters to

private groups and members of Congress explaining

that “the policy of the Department” was the opinion by

OLC that states “possess inherent authority to arrest

individuals whose names have been entered into the

[database] because they have both (1) violated civil

provisions of the federal immigration laws that render

them deportable and (2) have been determined by

federal authorities to pose special risks.” Id. at 353–54.

As the letters continued, “The policy and the authority

are no broader than this, and the narrow, limited

mission that we are asking state and local police to

undertake is a voluntary one.” Id. at 354.

In addition, a counsel to the Attorney General gave

a presentation to law enforcement officers in June 2003,

in which he began by “summariz[ing]” the OLC memo-

randum and its reasoning. Id. The official explained

that “[t]here was some ambiguity on [the] question”

whether a civil violation of the federal immigration

laws could be the basis for an arrest by state and local

law enforcement officials, and OLC had not examined

the issue since 1996. Id. After 1996, “Congress had

passed several acts all stating pretty clearly that there

was no federal preemption.” Id. “In addition, there were


26

several Circuit court opinions in the 10th U.S. court of

appeals, and that also raised the question . . . that

perhaps we need to resolve this issue.” Id. The DOJ

official described not only OLC’s determination in its

2002 memorandum “that there was no federal preemp-

tion of state and local assistance for civil violations of

the Act,” but also OLC’s reasoning in that memoran-

dum that “there is no federal preemption, there is no

difference between civil and criminal with respect to

whether state laws are preempted,” and that the

“authority to make such arrest[s] is an inherent author-

ity possessed by the states.” Id. at 354–55. The official

also explained that, “as far as the civil-criminal as-

sumption, there really isn’t any legal fiber underneath

it in the immigration law,” and “so in the OLC opinion

it came out very clearly, and the Attorney General did

announce the summary of what that opinion is”: “the

OLC opinion doesn’t say that immigration enforcement

is an inherent authority of the states. It merely says,

making an immigration arrest to assist the federal

government lies within the inherent power of the

states.” Id. at 355.

The La Raza Court held that these repeated public

statements by the Attorney General and the other high-

level DOJ officials, who used the reasoning of the OLC’s

memorandum to explain and justify the Department’s

new policy regarding state and local immigration law

enforcement authority, were sufficient to adopt that

memorandum as DOJ’s official policy and to require

disclosure under FOIA. Id. at 357–58. The Court

emphasized that the Attorney General and high-

ranking advisors made repeated references to the OLC

memorandum, and provided an overview of the contents

of and analysis in that memorandum. Id. at 357–58.


27

Those public comments made clear that DOJ regarded

the reasoning in the OLC memorandum as the official

policy of DOJ, to be presented to and relied upon by the

public as such, and viewed the memorandum as setting

out “the exclusive statement of, and justification for, its

new policy on the authority of states to enforce the civil

provisions of immigration law.” Id. at 357. In addition,

the discussion of the analysis in the OLC memorandum

was made “to assure third parties as to the legality of

the actions the third parties were being urged to take.”

Id. at 357. Taken together, the Court held, the refer-

ences were sufficient to incorporate the document as

official agency policy and to render it subject to disclo-

sure under FOIA. Id. at 358–59; see also In re County of

Erie, 473 F.3d 413, 418 n.5 (2d Cir. 2007) (explaining

that, in La Raza, the agency had “incorporated [the

document] into its policy by repeatedly, publicly and

expressly relying upon its reasoning and had adopted

its reasoning as authoritative within the agency”).

The La Raza Court also recognized some important

limitations on adoption—limitations that were under-

scored in the Court’s subsequent decision in Wood v.

FBI, 432 F.3d 78 (2d Cir. 2005). First, “an agency does

not adopt or incorporate by reference a pre-decisional

memorandum where it only adopts the memorandum’s

conclusions” and not its analysis or reasoning. Wood,

432 F.3d at 84 (citing La Raza, 411 F.3d at 358). When

an agency merely relies on a document’s conclusions, or

“makes a ‘yes or no’ determination without providing

any reasoning at all, a court may not infer that the

agency is relying on the reasoning” of the document.

La Raza, 411 F.3d at 359; accord Wood, 432 F.3d at 84.

Similarly, a “casual” or “minor” reference to a document

“does not necessarily imply that an agency agrees with


28

the reasoning,” and thus falls short of adoption.

La Raza, 411 F.3d at 359; accord Tigue, 312 F.3d at 81;

Common Cause v. IRS, 646 F.2d 656, 660 (D.C. Cir.

1981). La Raza’s finding of incorporation was premised

on “the repeated references to [the document] made by

the [agency head] and his high-ranking advisors, the

substance of their comments, and the way in which

their comments were used.” 411 F.3d at 357 (footnote

omitted); accord Wood, 432 F.3d at 84 (La Raza decided

“[o]n the basis” of those three factors; concluding no

adoption had occurred in Wood because no “high-level”

official had made public reference to document). Fi-

nally, as the Court made clear, “there must be evidence

that an agency has actually adopted or incorporated by

reference the document at issue; mere speculation will

not suffice.” 411 F.3d at 359.

B. The Three OLC Documents at Issue in ThisLitigation Do Not Meet the Stringent CriteriaEstablished in Sears and La Raza forAdoption of a Deliberative-Process-Privileged Document

The district court committed legal error in this case

in holding that the three OLC documents at issue are

subject to compelled disclosure under La Raza. The

district court recognized that there is no serious dispute

that the three OLC documents ordinarily would be

privileged and protected against disclosure under

FOIA’s Exemption 5. (SPA 10). The district court held

that the documents lost their privileged status because

they were “adopted,” but there is no agency conduct

here that demonstrates explicit adoption or incorpora-

tion by reference of the reasoning contained in those

documents as the agencies’ own. The documents are


29

therefore exempt from disclosure under FOIA, and the

district court’s disclosure order should be reversed.

1. The Three OLC Documents ArePredecisional, Deliberative-Process-Privileged Documents That Are Shieldedfrom Disclosure Under FOIA Exemption 5

The OLC documents at issue in this appeal are a

February 2004 informal legal advice memorandum

prepared by OLC in order to assist HHS and USAID in

implementing the Leadership Act and TVPRA funding-

eligibility conditions; and two July 2004 drafts of a

never-finalized formal OLC opinion that would have

conveyed such advice. As set out in greater detail in the

declaration filed in district court, OLC’s “principal

function” is to provide advice on a wide array of legal

questions to the President and the agencies and depart-

ments of the Executive Branch. (JA 318). OLC is often

asked by government decisionmakers for its advice

regarding difficult, sensitive, and controversial ques-

tions of law. Protecting the confidentiality of such legal

analysis and advice is crucial for OLC’s process of

candidly and effectively considering novel and complex

legal arguments and doing so in writing. (JA 321–24).

Although OLC provides advice on legal issues, however,

it is ultimately the decision of the Executive Branch

agencies seeking that advice—here, HHS and USAID—

to decide what final agency action to undertake.

(JA 318).

The first document at issue, the February 2004

memorandum, was informal legal advice provided by

OLC to assist HHS and USAID in deciding how to

enforce two newly enacted statutes. (JA 327–29). The


30

memorandum is at the “ ‘focus’ ” of the deliberative-

process privilege, as a “ ‘document[ ] reflecting advisory

opinions, recommendations and deliberations compris-

ing part of a process by which governmental decisions

and policies are formulated.’ ” Hopkins, 929 F.2d at 84–

85 (quoting Sears, 421 U.S. at 150; quotation marks

omitted). The predecisional and deliberative nature of

the memorandum is particularly clear given that the

advice was described as OLC’s “tentative views, which

might need to be altered after further analysis.”

(JA 329). The memorandum is also covered by the

attorney-client privilege, because it was prepared by

attorneys at OLC in their capacity as legal advisors to

agencies in the Executive Branch, in order to give

advice on the constitutionality of two statutory provi-

sions. (JA 318–20, 322–23, 327–29). Manifestly, the

memorandum was “a communication between client

and counsel . . . made for the purpose of obtaining or

providing legal advice,” which “was intended to be and

was in fact kept confidential.” Country of Erie, 473 F.3d

at 419; (JA 320–23).

The two other documents—July 2004 drafts of a

never-finalized OLC opinion memorandum—were also,

by their very nature, predecisional and deliberative.

The drafts are protected by the deliberative-process

privilege: they were “prepared in order to assist an

agency decisionmaker in arriving at his decision” and

thus predecisional, and were also “link[s] in a specified

consultative process” and accordingly deliberative.

Grand Central Partnership, Inc. v. Cuomo, 166 F.3d

473, 482–83 (2d Cir. 1999) (quotation marks omitted).

Furthermore, as drafts of a document that was never

finalized, the draft memoranda do not express even

OLC’s final views on the question, much less the


31

position of DOJ or the client agencies. Accordingly,

their disclosure would “mislead the public as to the

actual legal position of [DOJ] and the agencies on the

legal questions addressed” in the drafts. (JA 323–24);

see, e.g., Grand Central, 166 F.3d at 482 (deliberative-

process privilege protects draft documents); Coastal

States Gas Corp. v. Department of Energy, 617 F.2d 854,

866 (D.C. Cir. 1980) (same).

2. No Agency Explicitly Adopted orIncorporated by Reference the Analysis inthe Privileged OLC Documents as theAgency’s Own Official Rationale

Recognizing that the three documents are protected

by the deliberative-process privilege, the district court

nevertheless directed their disclosure on the ground

that HHS and USAID had adopted the conclusions and

analysis of the OLC documents as agency policy. That

conclusion is not supported by the record, and is

inconsistent with the standards for adoption set out in

Sears and La Raza.

The adoption found by this Court in La Raza

involved an agency head’s repeated, public, and explicit

reliance upon the document’s reasoning and conclusions

as authoritative, and as representing the official policy

of the agency, on which state and local officials were

urged to rely. La Raza, 411 F.3d at 360–61; County of

Erie, 473 F.3d at 418 n.5; Wood, 432 F.3d at 83–84.

Similarly, in Sears, the agency’s final opinion explicitly

incorporated by reference the other documents. 421

U.S. at 161. Nothing here comes close to meeting that

test. None of the statements by USAID or HHS, taken

separately or together, establish that either of those


32

agencies adopted—much less publicly and expressly

adopted—the analysis contained in the OLC documents

as their official justification for agency policy.

When, as here, “the evidence utterly fails to support

the conclusion that the reasoning in the reports is

adopted by the [decisionmaker] as its reasoning, even

when it agrees with the conclusion of a report . . . the

reports are not final opinions and do fall within Exemp-

tion 5.” Grumman, 421 U.S. at 184–85.

a. The District Court Erred in Relying onthe Fact That the Agencies Acted inAccordance with the Conclusions inOLC’s Memoranda to FindIncorporation

The district court’s approach was flawed at the

outset because it was premised on the erroneous belief

that an agency can incorporate or adopt the analysis in

a privileged document within the meaning of Sears and

La Raza merely by acting in accordance with the

document’s conclusion, even if the agency’s public

statements do not explicitly adopt the document’s

rationale as the agency’s own official statement of its

policy or even refer to the existence of the privileged

document. That approach is flatly contrary to La Raza

and Sears, and could cause substantial harm to the

ability of government agencies to seek and follow legal

advice in the course of setting agency policy.

In finding adoption by HHS and USAID of OLC’s

February 2004 informal legal advice memorandum, the

district court relied on changes in policy made by

USAID and HHS after they received the memorandum,

in which the agencies limited application of the Leader-


33

ship Act’s funding-eligibility condition to foreign organi-

zations’ activities outside the United States. (SPA 11–

12). The district court reviewed the history of OLC’s

advice to HHS and USAID beginning in 2004, noting

that the agencies had requested OLC’s views in Febru-

ary, and received the informal advice memorandum five

days later. Later that month, the district court empha-

sized, USAID published a notice (known as an Acquisi-

tion and Assistance Policy Directive, or AAPD) stating

that it would apply the Leadership Act funding restric-

tion only to foreign organizations and their conduct

abroad, with HHS adopting a similar policy in a grant

notice issued in June 2004. (SPA 11–12; JA 164–77). In

July 2004 and August 2004, USAID stated in AAPDs

that the “US Government has determined that it is

appropriate to apply the [funding-eligibility conditions]

only to foreign organizations.” (SPA 13; JA 189, 202).

The district court concluded that, between February

and September 2004, “USAID and HHS adopted as

agency policy both the conclusions provided in the

[February 2004 informal advice memorandum] . . . as

well as OLC’s reasoning and analysis.” (SPA 16). The

court relied in particular on internal email exchanges

between OLC and the agencies (including some pre-

dating the February 2004 memorandum) to conclude

that, in enforcing the statutory provisions, “HHS and

USAID took their marching orders—and the rationale

for those orders—directly from DOJ and the Administra-

tion.” (SPA 17).

But the district court did not identify a single

statement by USAID or HHS in which the agency or its

official referred to the rationale of OLC’s February 2004

informal legal advice memorandum. USAID and HHS


34

reviewed the memorandum and subsequently acted in

accordance with its conclusion, but the agencies did so

without making any contemporaneous public mention

of the memorandum, much less the type of public and

express adoption of the rationale set out in the memo-

randum as the agency’s own official justification for its

policy that is required for adoption. In fact, the main

documents on which the district court relied regarding

the agencies’ change in position—the USAID AAPDs

and HHS notices applying the funding-eligibility

conditions only to foreign organizations—do not even

mention OLC, let alone its advice memorandum or the

reasoning of that memorandum. (JA 164–77, 185–94,

198–205). And the July 2004 draft opinions were

reviewed by HHS and USAID only for the limited

purpose of providing comments to OLC—they did not

even represent the reasoning officially adopted by OLC,

and were never mentioned publicly by the agencies in

any way. The district court’s reasoning that, despite the

absence of any contemporaneous or even subsequent

public statement by the agencies that referenced those

draft documents and their reasoning, HHS and USAID

had publicly adopted that reasoning as the agencies’

own, was fundamentally flawed.

As articulated by both the Supreme Court and this

Court, the incorporation doctrine applies to strip a

predecisional document of its privilege against disclo-

sure under Exemption 5 only where an agency ex-

pressly adopts not only the conclusion but also the

reasoning of that privileged document as the agency’s

own official position. Thus, in Grumman, the Supreme

Court held that public disclosure of a predecisional

document is not required under § 552(a)(2), “even when

[the agency] agrees with [a privileged document’s]


35

conclusion” in a final opinion, unless the agency ex-

pressly adopts the reasoning of that predecisional

document as the basis for the final opinion. 421 U.S. at

184. As the Supreme Court emphasized, before a

predecisional deliberative advice report will become

subject to disclosure, there must be “indication that its

reasoning has been adopted” by the agency, and not

simply its ultimate conclusion. Id. at 186.

Similarly, this Court in La Raza made clear that an

agency’s adoption of the conclusions in an OLC legal

advice memorandum is not sufficient to find incorpora-

tion or adoption under Sears and to compel disclosure

of a privileged document. See 411 F.3d at 359. As the

Court elaborated, “Mere reliance on a document’s

conclusions does not necessarily involve reliance on a

document’s analysis; both will ordinarily be needed

before a court may properly find adoption or incorpora-

tion by reference.” Id. at 358. Similarly, in Wood, the

Court emphasized that an agency’s adoption of a

predecisional memorandum’s conclusions is not suffi-

cient to establish that the agency adopted or incorpo-

rated by reference the analysis in that memorandum.

See 432 F.3d at 84; see also Afshar v. Department of

State, 702 F.2d 1125, 1143 n.22 (D.C. Cir. 1983) (rea-

soning that adoption may not be found simply because

the agency “carried out the recommended decision”).

Accepting the district court’s contrary approach would

mean that the deliberative-process privilege protects

only those predecisional documents whose advice or

recommendations the agency rejects; when the agency

follows advice or accepts recommendations, the agency

would be required to disclose the predecisional docu-

ment under FOIA. That is not the law.


36

The district court’s approach, apart from being

inconsistent with the case law, would also “disserve the

recognized aims of Exemption 5,” including preventing

agency personnel from being inhibited in their free

exchange of views. Providence Journal Co. v. Depart-

ment of the Army, 981 F.2d 552, 558 (1st Cir. 1992)

(footnote omitted) (citing Sears, 421 U.S. at 161). That

is why “[e]xpress adoption of a predecisional document

is a prerequisite to an agency waiver under Exemption

5.” Providence Journal, 981 F.2d at 558. Yet despite

these clear statements of law, the district court never

even used the word “express” or its variants in the

“Analysis” section of its order; nor is there any reason-

able argument that HHS or USAID expressly adopted

the February 2004 informal advice memorandum or the

two July 2004 draft memoranda. The district court’s

approach would significantly undermine the ability of

government personnel to fully present each side of an

argument, analyze various possibilities, and present

advice or recommendations in a confidential setting,

free of undue public scrutiny. See Sears, 421 U.S. at

150–51 (describing interests deliberative-process

privilege protects).*

* Furthermore, Sears applied the adoption doctrine

in the context of a final agency adjudicatory opinion, see

421 U.S. at 148, which is a document that provides the

final rationale for an agency’s adjudication and is

required under 5 U.S.C. § 552(a)(2)(A) to be publicly

disclosed by the agency. Although this Court has

applied the adoption doctrine outside the context of

final agency adjudicatory opinions, see La Raza, 411

F.3d at 352–53, that extension of Sears provides an

additional reason to adhere closely to Sears’s


37

Besides its reliance on speculation and inference,

rather than the sort of explicit, public use of the con-

tents of a document to explain and justify the agency’s

action required by La Raza, the district court’s conclu-

sion that OLC’s February 2004 informal advice memo-

randum must be disclosed because USAID and HHS

“took their marching orders—and the rationale for

those orders—directly from DOJ and the Administra-

tion” (SPA 17) also disregards the fact that the advice

memorandum was explicitly tentative. Cf. Coastal

States Gas, 617 F.2d at 869 (“Tentative opinions are not

relied on as precedent; they are considered further by

the decisionmaker.”); National Wildlife Federation v.

U.S. Forest Service, 861 F.2d 1114, 1120 (9th Cir.

1988); Wolfe v. HHS, 839 F.2d 768, 776, 778 (D.C. Cir.

1988). Furthermore, although OLC gave legal advice to

HHS and USAID regarding the relevant statutory

provisions, the ultimate decision whether and how to

enforce the statutes was made by HHS and USAID.

Those agencies, not OLC, promulgated the guidelines

for providing funding under the two relevant statutory

provisions. (JA 318).

The district court’s rationale for concluding that

HHS and USAID had adopted the analysis set out in

the two July 2004 draft OLC memoranda is even more

questionable. The district court did not identify any

statement by either of the agencies or any of their

officials that referred to the draft July 2004 memo-

randa, or the reasoning set out in those memoranda.

That is unsurprising, because the July 2004 drafts were

requirement that adoption be express rather than

implicit.


38

never-finalized drafts, which were shared with HHS

and USAID solely for the purpose of soliciting com-

ments and suggestions. (JA 320, 323–26). Indeed, the

district court acknowledged that the July drafts “were

never mentioned specifically by name,” yet inexplicably

held that the drafts somehow met the Sears/La Raza

test of being expressly adopted by the agencies as the

agencies’ own policy. The district court appears to have

believed that because USAID later happened to have

acted consistently with the conclusions of the July 2004

draft memoranda—a fact that the district court knew

only because it reviewed the draft memoranda in

camera, and which the plaintiff learned only because

the district court disclosed the previously confidential

analysis in those draft memoranda in its decision—the

agency must have expressly adopted the conclusions

and reasoning of the documents. Each of these inferen-

tial steps is unsupported by the record and amounts to

nothing more than guesswork and conjecture. More

fundamentally, “express adoption” accomplished by

silence is simply a contradiction in terms, and cannot

be reconciled with La Raza or Sears or with the purpose

and functions of the deliberative-process privilege

recognized by FOIA Exemption 5.*

* Indeed, in the government’s view, the

incorporation doctrine recognized in Sears applies only

where a non-exempt agency document specifically

adopts or incorporates by reference the content of

another document. See 421 U.S. at 161–62. The fact

that an agency official publicly describes the contents of

a predecisional deliberative document to explain or

justify an agency decision would therefore not

constitute adoption or incorporation in the strict sense,


39

b. The District Court Erred in Relying onConfidential, Leaked, and UnsourcedAgency Statements About thePrivileged Documents as the Basisfor Holding That the DocumentsWere Adopted

In addition to relying on an unsupported theory of

“implied” adoption, the district court also erred by

relying on confidential and intra-agency communica-

tions that refer to privileged documents to hold that the

agencies adopted or incorporated by reference the

analysis in the privileged documents as the agencies’

own rationale for their policies.

The incorporation doctrine is intended to apply

where an agency “explicitly adopt[s] [a predecisional,

privileged document] as part of its policy.” La Raza, 411

F.3d at 359–60. In La Raza itself, the Court concluded

that there was explicit adoption in the form of repeated

public statements that the OLC memorandum, and the

legal analysis it contained, represented the official

policy of DOJ and was DOJ’s public justification for the

lawfulness of joint enforcement efforts that DOJ was

undertaking with state and local law enforcement. Id.

at 358 (“the Department publicly and repeatedly

depended on the Memorandum” (emphasis added));

although such public statements may well be the basis

for finding that a predecisional document was no longer

predecisional, or that any applicable privilege had been

waived. For purposes of this case, however, the

distinction is not material, as the “evidence” considered

by the district court does not establish either

incorporation or waiver.


40

accord County of Erie, 473 F.3d at 418 n.5 (La Raza’s

adoption doctrine applies where agency has “repeat-

edly, publicly and expressly rel[ied] upon [another

document’s] reasoning and ha[s] adopted its reasoning

as authoritative within the agency” (emphasis added)).

This Court recognized in Wood that there is no adoption

where no “high-level [agency] officials made any public

references” to the reasoning of a privileged document.

432 F.3d at 84. Here, in sharp contrast to La Raza and

Wood, the district court improperly relied on private

communications to conclude that the agencies incorpo-

rated the rationale set out in the February 2004 OLC

memorandum as the agencies’ own official explanation

of the rationale for their agency policies.

First, and as noted above, the district court improp-

erly relied on the substance of the three privileged OLC

documents themselves, which the district court re-

viewed in camera and ex parte, as relevant evidence of

“express adoption.” (SPA 16). By definition, a document

that was never publicly released and has been reviewed

only by the court in camera does not demonstrate that

an agency has publicly and expressly adopted the

rationale of a privileged document as its own policy in

a manner that supports compelled disclosure. The

district court’s contrary conclusion was particularly

egregious with respect to the two July 2004 draft OLC

opinion memoranda, which were never finalized, had

never been publicly referenced in any way by an agency

official, and for which even the bottom-line conclusions

remained confidential until they were disclosed by the

district court in its order.

The district court also treated as “[s]ignificant” “the

exchange of emails between OLC and HHS and USAID


41

before and after the issuance” of the February 2004

informal advice memorandum—emails that showed

that HHS and USAID were seeking legal advice about

the implementation of the funding-eligibility conditions

in the Leadership Act and the TVPRA. (SPA 17). These

emails became public only because the government

voluntarily disclosed them in this case, years after the

communications were made, in an effort to resolve this

litigation, not to explain or justify the agency’s policy at

that time it was made. This is a far cry from the explicit

and public reliance on privileged documents as the

contemporaneous justification for agency policy pre-

sented in La Raza and similar cases. An agency’s

decision to reveal the existence of a privileged docu-

ment years after the fact, in order to provide greater

transparency about the decisional process, should not

be penalized by being treated as the equivalent of a

public and express reliance on the contents of the

document to explain an agency decision at the time it is

made. Cf. Tigue, 312 F.3d at 81 (rejecting the argument

that agency’s decision to reveal the existence of privi-

leged memorandum and to quote from one sentence of

the memorandum constituted incorporation).

Similarly, the district court placed significant

weight on a September 2004 letter from an OLC official

to HHS, which described how HHS had asked for advice

about whether HHS could implement provisions of the

TVPRA and the Leadership Act, and stated that, “[a]t

that time, I understand that DOJ gave its tentative

advice that the so-called ‘organization restrictions’ set

forth in 22 U.S.C.A. § 7110(g)(2) and 22 U.S.C.A.

§ 7631(f) could, under the Constitution, be applied only

to foreign organizations acting overseas.” (JA 207–08).

The letter goes on to explain that “[w]e have reviewed


42

the matter further and we are withdrawing that

tentative advice.” (JA 207–08). The letter notes that

“there are reasonable arguments to support [the]

constitutionality” of the provisions and that OLC

believes “that HHS may implement these provisions.”

(JA 207–08).

But this letter was never officially released to the

public by OLC or HHS, and the government has never

relied on the letter as a public exposition of, or explana-

tion for, agency policy. The letter was a confidential

communication between OLC and HHS, which appears

to have been improperly leaked and subsequently to

have come into the possession of one or more members

of Congress. Treating a leaked communication as

equivalent to the official public statements by the

agency itself in La Raza would inappropriately permit

an unauthorized government employee with access to

a privileged document to waive privilege on behalf of

the government agency. Cf. United States v. Chen, 99

F.3d 1495, 1503 (9th Cir. 1996) (holding that unautho-

rized former corporate official lacked the power to waive

attorney-client privilege on behalf of the corporation).

And in any event, the letter did not reveal any of the

analysis in the February 2004 informal advice or the

July 2004 draft memoranda.

The district court also relied on a Wall Street

Journal article published in February 2005, which

reported (without identifying a source) that the Execu-

tive Branch had previously applied the Leadership Act

and TVPRA funding-eligibility conditions “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


43

applicants support Mr. Bush’s policy,” but that “the

Justice Department reversed itself ” in fall 2004.

(SPA 14). Once again, the statement of an unidentified

source does not constitute official adoption by a federal

agency within the meaning of La Raza or Sears. A

statement of this type does not show that the agency

has adopted the reasoning of a predecisional document

as its own in a manner that transforms it into an

official and public statement by the agency that it is

prepared to hold out as its own and to defend, or even

that the agency relied on the analysis in a predecisional

document to justify the lawfulness of agency conduct.

In sum, the district court erred in relying on “inter-

nal government letters and memoranda,” “materials

reviewed by the Court in camera,” and other non-public

agency communications to find express adoption or

incorporation. (SPA 16). Under Sears and La Raza,

adoption applies when an agency itself publicly identi-

fies a privileged document as setting forth the basis for

agency action, and describes and adopts the reasoning

in that document as agency policy. Adoption does not

occur whenever review of the historical record, includ-

ing leaked documents, internal communications re-

leased years later, and other non-public agency commu-

nications, supports an inference that privileged docu-

ments might have influenced agency decisionmaking.


44

c. The District Court Erred in Relying onStatements by Employees of OtherAgencies to Conclude That HHS andUSAID Expressly Adopted the OLCDocuments as Agency Policy

Just as the district court erred in relying on non-

public, leaked, and privileged documents as establish-

ing express incorporation of OLC’s legal advice memo-

randa into HHS’s and USAID’s formal agency policy, so

too did the district court err in relying on statements

made by officials of other agencies to conclude that

HHS and USAID had adopted the rationale for the OLC

advice as their own explanation of agency policy.

First, and as noted above, the district court gave

weight to the September 2004 letter from an OLC

official to HHS, describing OLC’s withdrawal of its

February 2004 informal advice about the funding

conditions in the Leadership Act and the TVPRA and

its conclusion that there are reasonable arguments to

support the constitutionality of the provisions as

applied to all grantees. (SPA 13–14). Apart from the

critical flaw that this letter became public only because

it was apparently improperly leaked, the district court’s

reliance on this letter also was erroneous because the

letter did not express the views of the agencies claimed

to have expressly adopted the privileged OLC docu-

ments, i.e., HHS and USAID.

The September 2004 letter does not make any

statement about HHS’s policy on enforcement of the

funding conditions in the Leadership Act and the

TVPRA. The district court mischaracterized the Sep-

tember 2004 letter as discussing a “policy change”


45

(SPA 18), ignoring the fact that OLC’s role is to advise

the agencies on the law, not to make policy (JA 318); see

Sears, 421 U.S. at 138 (understanding role of docu-

ments “crucial”); Grumman, 421 U.S. at 170–71 (“essen-

tial”). And although HHS was sent this letter in Sep-

tember 2004, neither HHS nor USAID announced any

policy change until May and June 2005. (SPA 15).

Furthermore, the letter does not even purport to

describe HHS’s views on the constitutionality of appli-

cation of the funding conditions to U.S. organizations;

whether HHS followed OLC’s advice; or, critically,

whether HHS agreed with and intended to officially

adopt as its own the reasoning in the privileged OLC

documents. Without that kind of explicit linkage, there

is not an adequate basis for finding incorporation. See,

e.g., Wood, 432 F.3d at 84.

The district court also relied, in finding incorpora-

tion, on a 2007 letter from DOJ’s Office of Legislative

Affairs to a Member of Congress, recounting the history

of communications between OLC and the agencies.

Once again, although this letter briefly refers to OLC’s

February 2004 informal advice memorandum, it does

not indicate that HHS or USAID adopted the rationale

set out in that memorandum as the agency’s own.

Incorporation of a privileged document’s reasoning as

well as its conclusion is necessary for the document to

lose its protection against disclosure. See Point A,

supra. And the district court’s reliance on the letter was

fatally flawed because the letter, which was authored

by a DOJ official, cannot be attributed to either HHS or

USAID, much less serve as a basis for determining that

either agency expressly adopted the reasoning set out

in OLC’s February 2004 informal advice or the July


46

2004 draft OLC memorandum as the agency’s contem-

poraneous justification and explanation for a policy

change.

d. The Remaining Stray and IsolatedReferences to the February 2004Informal Advice Memorandum DoNot Show Express Adoption by theAgencies of That Document’sRationale

The final set of statements on which the district

court relied to find express adoption of the three

privileged OLC documents consist of a handful of

statements or publications by USAID or USAID

officials that referred to OLC advice. These communica-

tions, however, are the type of stray and isolated

references that this Court has repeatedly recognized do

not establish express public incorporation by an agency

of an otherwise privileged analysis as its own statement

of policy. At most, they demonstrate that USAID

followed the conclusion in the February 2004 OLC

memoranda, not that USAID or HHS accepted and

adopted the rationale supporting that conclusion as the

agency’s own reasoning, to be presented and defended

as such.

One of the documents on which the district court

relied was a guidance document issued by USAID in

July 22, 2004, which described the funding eligibility

condition in the Leadership Act and stated in a footnote

that “[OLC] in a draft opinion determined that this

provision only may be applied to foreign non-govern-

mental organizations and public international organi-

zations because of the constitutional implications of


47

applying it to U.S. organizations.” (JA 197). This brief

reference to what might be the February 2004 OLC

informal advice memorandum and its bottom-line

conclusion is too fleeting and casual to establish

adoption. In Tigue, this Court held that the reference to

a privileged memorandum in a task force report, and a

quotation of a sentence of the privileged memorandum,

did not constitute “express adoption or incorporation.”

312 F.3d at 81. In La Raza, the Court also emphasized

that a “casual reference to a privileged document does

not necessarily imply that an agency agrees with the

reasoning contained in those documents.” 411 F.3d at

358. Other courts have similarly recognized that a

“casual allusion in a post-decisional document to

subject matter discussed in some pre-decisional,

intra-agency memoranda is not the express adoption or

incorporation by reference” that serves to remove the

protection of Exemption 5 under Sears. Common Cause,

646 F.2d at 660.*

The district court also relied on congressional

testimony in March 2005 by USAID’s Administrator,

* Similarly, although the district court did not

mention this reference, the statement by USAID in

July 2005 that “[c]onsistent with guidance from [DOJ],

the [Leadership Act funding condition] now appl[ies] to

U.S. organizations as well as foreign organizations”

(JA 223) is only a casual or minor reference that cannot

be read as an express adoption or incorporation of the

analysis in the February 2004 informal advice

memorandum or the July 2004 draft memoranda. See

La Raza, 411 F.3d at 359; Tigue, 312 F.3d at 81;

Common Cause, 646 F.2d at 660.


48

stating that OLC initially provided “tentative advice” to

implement the Leadership Act’s funding-eligibility

condition only against foreign organizations but with-

drew that advice in September 2004, and that USAID

was “simply following the legislation and the advice to

implement that.” (SPA 14–15; JA 236). Assuming that

the “tentative advice” referred to in the testimony is the

substance of the February 2004 OLC informal advice

memorandum, this passing reference to the existence of

the advice and its bottom-line conclusion does not

demonstrate adoption. It would be particularly anoma-

lous to rely on this testimony as a basis for adoption of

the February 2004 OLC informal advice memorandum

because, by the date of the hearing, USAID had

changed its official policy and no longer restricted its

enforcement of the funding eligibility conditions to

foreign organizations. Nor would it make sense to rely

on the Administrator’s statement that OLC withdrew

its earlier advice in September 2004 and that USAID

was “simply following” OLC’s advice to find adoption of

the July 2004 draft OLC memoranda. The Administra-

tor never explained whether USAID took that step

because it agreed with the rationale set out in the two

draft opinion memoranda circulated by OLC in July

2004, which were never finalized, and never repre-

sented OLC’s official policy, or instead for some other

reason. Based on the Administrator’s testimony, it is

impossible to know whether the relevant decision-

makers at USAID even saw the July 2004 draft OLC

memoranda before determining what agency action to

undertake.

* * * * *

In sum, the district court erroneously relied on a

theory of implied incorporation; its review of the


49

substance of confidential, non-public, and privileged

documents; and stray and casual references to the

existence of one of the privileged OLC documents and

its bottom-line conclusion, to find that HHS and USAID

adopted the rationale set out in the three privileged

documents as their own official agency policy. There

was not a single express statement by an agency head

or similarly high-level official that the agency had

adopted the analysis in a predecisional document as its

own rationale to justify agency policy. There was

nothing remotely equivalent to the four public letters

by the Attorney General and high-level Department of

Justice officials in La Raza—which said, “[l]et me first

state clearly the policy of the Department on this

issue,” followed immediately by a detailed recitation of

the reasoning in a predecisional document, concluding

with “[t]hus” followed by a description of the new policy.

411 F.3d at 353–54. Nor is there anything equivalent to

a top advisor to the head of the agency providing a

public summary of that predecisional document and its

reasoning, to assure third parties that there was a legal

basis for the agency’s policy on which they similarly

could rely to change their own policies. Id. There is

nothing in this case that meets the requirements of

Sears and La Raza that an agency, or its high-level

officials authorized to do so, clearly and expressly state

to the public that the agency is adopting a particular

document’s conclusions and rationale as its own.

Because of the absence of any such express adoption

or incorporation of the reasoning of the privileged OLC

documents, disclosure is not required here—and indeed

would cause the very harms that Congress sought to

prevent by enacting Exemption 5. The deliberative-

process privilege secures important public interests: it


50

protects candid exchanges of views, thorough evalua-

tions of opposing arguments, and confidentiality for

proposed policies that have not yet been adopted, in

order to enhance agency decisionmaking. See Tigue, 312

F.3d at 76.

Those harms are manifest in the circumstances

presented by this case: OLC’s role is to provide candid

and forthright legal advice to agencies throughout the

federal government, a sensitive task for which confiden-

tiality is inherently necessary. (JA 318, 321–23). In

carrying out its function, OLC engages in a robust

deliberative process, in which draft documents serve an

important role in developing OLC’s view of the law—a

process that would be disrupted by public disclosure of

draft opinions, which have not undergone final review

and may not reflect OLC’s actual position. (JA 323–24).

Disclosure of OLC documents based simply on the fact

that its client agencies followed OLC’s advice, as the

district court ordered here, would not only cause harm

to the government in this particular case, it would

inhibit OLC’s very ability to carry out its process of

intra-governmental review and its mission as the

government’s confidential legal advisor. And more

broadly, it would deter agency officials from disclosing

to the public that they had consulted with counsel, for

fear of being deemed to have adopted the legal advice

they received—thus, ironically, making the public less

well informed about the operations of its government,

contrary to the central purpose of FOIA.

Since the district court’s decision in this case,

litigants have filed suit seeking disclosure under FOIA

of any legal advice provided by DOJ regarding the

targeted use of lethal force against U.S. citizens who


51

are al-Qaeda operatives, invoking theories similar to

those accepted by the district court here. See New York

Times Co. v. U.S. Department of Justice, No. 11 Civ.

9336, Complaint (S.D.N.Y. filed Dec. 20, 2011). The

plaintiffs in that case, citing references in press articles

by anonymous government officials to the existence of

a legal advice memorandum, as well as apparently

leaked information reported in the press about an

alleged memorandum authorizing the targeting of

Anwar al-Awlaki, have asserted an entitlement to

public disclosure of any such legal advice opinions or

memoranda authored since 2001. Id. at 3, 6–7, 9.

Needless to say, public disclosure of any such docu-

ments could cause substantial harm to our national

security and to the deliberative processes of govern-

ment officials charged with making significant deci-

sions in that area. This Court’s guidance is greatly

needed, to correct the multiple errors in the district

court’s overbroad application of the adoption doctrine,

and clarify the narrow scope of the exception to Exemp-

tion 5 recognized in Sears and La Raza.

C. The District Court Also Erred in CompellingDisclosure of the February 2004 InformalAdvice Memorandum, Because ThatMemorandum Is an Attorney-Client-Privileged Document That Is Shielded fromDisclosure Under FOIA Exemption 5

Wholly apart from the fact that the agency state-

ments and publications relied on by the district court

were legally insufficient to demonstrate adoption under

Sears and La Raza, the district court also erred in

compelling disclosure of the February 2004 informal

advice memorandum because that memorandum is


52

shielded from disclosure under Exemption 5 as an

attorney-client-privileged document. The circumstances

presented in this case are a far cry from the facts in La

Raza, where this Court held that the attorney-client

privilege was overcome where Justice Department

officials repeatedly referred publicly to the privileged

document, described its analysis, and indicated that

third parties should rely on that analysis as dispositive.

In any event, the basis for the adoption recognized by

the Supreme Court in Sears does not support the

compelled disclosure under FOIA of an attorney-client-

privileged document.

1. The “Evidence” of Adoption of theFebruary 2004 OLC Informal AdviceMemorandum Was Inadequate toOvercome the Attorney-Client PrivilegeUnder La Raza

In compelling disclosure of the February 2004 OLC

informal advice memorandum in this case, the district

court reasoned that the conduct the court viewed as

demonstrating adoption was sufficient to overcome not

only the deliberative-process privilege, but also the

attorney-client privilege. (SPA 18–19). The district

court relied on this Court’s holding in La Raza for that

proposition. (SPA 18–19).

But the evidence of adoption on which the district

court relied fell far short of the standard applied in La

Raza to find adoption sufficient to overcome the

attorney-client privilege. There, DOJ officials had

explicitly and publicly adopted the legal analysis in an

OLC memorandum as agency policy; had publicly

summarized the contents of the memorandum, includ-


53

ing the legal analysis; and had expressly invoked the

legal analysis to indicate that state and local law

enforcement officials should change their own policies.

411 F.3d at 360–61. Although the Court in La Raza did

not decide whether that conduct would suffice to waive

the attorney-client privilege under normal waiver

standards, id. at 361 n.9, it was similar to conduct that,

in the context of litigation, has been held to waive

privilege. Compare id. at 361 (“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.”), with

United States v. Workman, 138 F.3d 1261, 1263–64 (8th

Cir. 1998) (“attorney-client privilege cannot be used as

both a shield and a sword”); 3 Weinstein’s Federal

Evidence § 503.41 (J. McLaughlin, ed., 3d ed. 2011)

(waiver of attorney-client privilege found “when a party

takes a position in litigation that makes it unfair to

protect that party’s attorney-client communications”).

No comparable government conduct is presented

here. The government did not repeatedly and publicly

invoke the analysis in the February 2004 informal

advice memorandum as the reason for the agency’s

implementation policies; nor did government officials

seek to invoke the privileged document affirmatively to

recommend that third parties adopt similar policies.

This is not a situation in which a government official

has sought to invoke a privileged document as a sword

and yet to maintain the shield of the privilege. Given

the broad public interest at stake in protecting the

attorney-client privilege, and the need for “caution”

before adopting rules that weaken the privilege, see In

re County of Erie, 546 F.3d 222, 228 (2d Cir. 2008), the

district court should have required far more before


54

compelling disclosure of the February 2004 informal

advice memorandum.

2. La Raza Erred in Extending the Sears

Adoption Doctrine to Overcome theAttorney-Client Privilege

To the extent the analysis in La Raza supports the

district court’s ruling that the attorney-client privilege

would not protect the February 2004 informal advice

memorandum from compelled disclosure under FOIA,

moreover, that analysis misconstrues Sears. Although

Sears held that a document may not simultaneously be

“predecisional” and a “final opinion,” the Supreme

Court has recognized that other privileges, which

extend beyond the privilege for predecisional materials,

may still be viable even for documents covered by

§ 552(a)(2): “[i]t should be obvious that the kind of

mutually exclusive relationship between final opinions

and statements of policy, on one hand, and predeci-

sional communications, on the other, does not necessar-

ily exist between final statements of policy and other

Exemption 5 privileges.” Federal Open Market Commit-

tee v. Merrill, 443 U.S. 340, 360 n.23 (1979). Whether a

document is predecisional has nothing to do with

whether it is protected by other privileges incorporated

in Exemption 5, including the attorney-client privilege.

Although this Court in La Raza applied Sears to

overcome the protection of the attorney-client privilege,

see 411 F.3d at 360–61, in the government’s view, that

holding was in error. In holding that a predecisional

document, once incorporated by reference into a final

adjudicatory opinion, was not exempt from disclosure

under FOIA, the Sears Court explicitly recognized that


55

if a document were both a final opinion and also “an

intra-agency memorandum within Exemption 5, it

would be nondisclosable.” 421 U.S. at 154 n.21. Fur-

thermore, the Court refused to compel the disclosure of

documents protected by the work-product privilege,

even though those privileged documents had been

incorporated into a final memorandum directing the

filing of a complaint. Id. at 154–55. Significantly, the

Sears Court reached this conclusion despite the fact

that the final memoranda in which the privileged

documents were referenced might have been the type of

documents subject to a mandatory publication require-

ment under FOIA. 421 U.S. at 160. As applied here, the

Sears analysis would require protecting the February

2004 OLC informal advice memorandum against

disclosure under Exemption 5, because that memoran-

dum is protected by the attorney-client privilege. To the

extent La Raza compels a different result, the govern-

ment preserves its challenge to that holding for pur-

poses of further review.


56

Conclusion

The district court’s order should be reversed.

Dated: New York, New York

January 6, 2012

Respectfully submitted,

PREET BHARARA,

United States Attorney for the

Southern District of New York,

Attorney for Defendants-

Appellants.

BENJAMIN H. TORRANCE,

SARAH S. NORMAND,

Assistant United States Attorneys,

Of Counsel.

TONY WEST,

Assistant Attorney General

BETH S. BRINKMANN,

Deputy Assistant Attorney General

MICHAEL S. RAAB,

SHARON SWINGLE,

Attorneys, Appellate Staff

Civil Division

Department of Justice


CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of

Appellate Procedure, the undersigned counsel hereby

certifies that this brief complies with the type-volume

limitation of Rule 32(a)(7)(B). As measured by the word

processing system used to prepare this brief, there are

13,691 words in this brief.

PREET BHARARA,

United States Attorney for the

Southern District of New York

By: BENJAMIN H. TORRANCE,

Assistant United States Attorney
