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Second Circuit Cuts Back on “Express Adoption” Doctrine in FOIA Case Over Torture Memos

By Alexandra Perloff-Giles

In a decision from September, the Second Circuit substantially limited the "express adoption" doctrine, which had been an important vehicle for FOIA requesters seeking disclosure of legal memoranda from the government.

The decision came in The New York Times Co. & Charlie Savage v. United States Department of Justice, which addressed whether a series of memoranda prepared by an Assistant United States Attorney appointed to investigate the legality of CIA interrogation techniques were exempt from disclosure under the deliberative privileges incorporated into Exemption 5 of FOIA.

The Second Circuit rejected The Times's main argument – that the secret memos must be released because DOJ had relied upon them in public statements after the conclusion of the investigation.

The case had its origins in the Bush administration, when AUSA John Durham was appointed to lead an investigation into whether CIA interrogators had violated federal law in interrogating detainees overseas and whether criminal charges should be brought. In a series of reports, Mr. Durham concluded that full criminal investigations were warranted in connection with the death of two detainees in the custody of the United States, but that the investigation could be closed as to the remaining 99 incidents of alleged mistreatment of detainees.

Attorney General Eric Holder issued a press release in June 2011, accepting Durham's recommendations. Two full criminal investigations followed, for which grand jury subpoenas were issued, but no indictments were ultimately issued. Eventually, in 2012, following subsequent reports by Durham, the criminal investigations into the deaths of the two detainees were closed.

Again, Holder adopted Durham's recommendations and announced in an August 2012 press release that the Department of Justice would not initiate criminal charges in either of the two matters.

In April 2014, New York Times reporter Charlie Savage submitted a FOIA request to DOJ, seeking the reports from Durham's investigations. In May 2014, after DOJ refused to produce the documents, The New York Times filed suit in the Southern District of New York. The parties cross-moved for summary judgment, with DOJ asserting that the documents were properly withheld under FOIA Exemptions 1 (national security), 3 (other federal law), 5 (privileged communications), 6 (personal privacy), and 7(c) (law enforcement information that could constitute an unwarranted invasion of personal privacy).

Judge Paul Oetken granted in part and denied in part both motions for summary judgment. In relevant part, Judge Oetken held that Exemption 5 did not apply because Holder had "expressly adopted" the contents of Durham's memoranda through public statements. Under the "express adoption" doctrine, if an agency "expressly adopts" the reasoning of an internal memorandum or "incorporates by reference" the document into a final decision, Exemption 5 no longer applies.

Judge Oetken did, however, permit redactions of the portions of the memoranda that were no adopted by Holder or that were justified by other FOIA exemptions.

Following DOJ's appeal, the Second Circuit affirmed in part and reversed in part. The court concluded that DOJ had waived the attorney work-product privilege as to information in the memoranda relating to the conclusion that some of the detainees were not in CIA custody. The court ordered those sections of the memos released.

But the more significant part of the decision was the court's narrowing of the scope of the "express adoption" doctrine, through which The Times sought the release of extensive portions of the memos. The ruling was the latest in a series of decisions in which the Second Circuit has attempted to delineate two waiver doctrines: working law and express adoption.

The courts have long held that agencies must release secret legal memos if they are the "working law" of the agency, setting out the law and rules that the agency must follow.

Then, in Brennan Center v. United States Department of Justice, 697 F.3d 184 (2d Cir. 2012), the court laid out "express adoption" as a separate doctrine from working law. The court characterized express adoption as a "distinct path[] through which Exemption 5's protections could be lost," separate and apart from the "working law" doctrine.

While working law referred to the secret law governing an agency, express adoption applied when an agency made public statements relying on a document's analysis even if that analysis was not publicized. See, e.g., Nat'l Council of La Raza v. DOJ, 411 F.3d 350, 358-59 (2d Cir. 2005). The La Raza approach, which was embraced by Brennan, found that it was offensive to FOIA for an agency to give public assurances of a decision's legality and then refuse to share the legal analysis that supported that conclusion.

However, in ACLU v. NSA, 925 F.3d 576 (2d Cir. 2019), the Second Circuit began to walk away from that distinction, suggesting that the "express adoption" doctrine applies to documents that have "become an agency's 'effective law and policy" and that its contours were therefore coterminous with "working law." In the Durham torture memo case, the Second Circuit, citing the ACLU v. NSA, went a step further. It held that "an 'express adoption' inquiry is only relevant insofar as the previously-privileged intra-agency document has become binding 'working law,'" setting out an agency's policy in its dealings with the public.

Because Durham's recommendations to Holder "are not binding on the public")—even if expressly adopted by Holder in his final decision—and because prosecutorial decisions in any given case "are not precedential" in any future case, Durham's recommendations were not working law, the court concluded.

The New York Times decision thus goes one step further than the ACLU decision: While ACLU stated that "a document embodies an agency's 'working law' when the document binds agency officials or members of the public," 925 F.3d at 594 (emphasis added), New York Times implies that working law must bind both the agency and the public.

Alexandra Perloff-Giles is the New York Times's 2019-2020 First Amendment Fellow. The New York Times Company and Charlie Savage were represented by David McCraw, the company's senior vice president and deputy general counsel. The government was represented by DOJ Attorney H. Thomas Byron III and by AUSAs Benjamin H. Torrance and Jeannette Anne Vargas.

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