Governmental Privileges, According To The Department of Justice 2021

by David L. Cleveland

The Department of Justice, Civil Division, Office of Immigration Litigation [“OIL”] recently released a 56-page powerpoint training, dated October 27, 2021, about “Governmental Privileges” that it gave to its lawyers. It was released in response to a FOIA lawsuit by the Louise Trauma Center.

This article will quote some of the material. The pages are available on the “FOIA” page at www.louisetrauma.weebly.com, entitled “Governmental Privileges Department of Justice 2021.”

“FOIA exemptions and litigation privileges are not the same thing.” Page 8 of 56.

The deliberative process privilege includes personal ideas, opinions, recommendations and advice.

The law enforcement privilege includes “methods and techniques.” Page 19.

USCIS has a Fraud Detection and National Security [FDNS] unit. Three cases were cited at page 22:

Assadi v. U.S. Citizenship & Immigration Servs., No. 12-cv-1374, 2013 WL 230126,

(S.D.N.Y. Jan. 22, 2013):

*1: Applications for immigration benefits are submitted to CIS and assigned to a CIS Immigration Services Officer (CIS adjudicator) who is responsible for adjudicating the matter. If a CIS adjudicator suspects that an application is fraudulent, the application is referred to FDNS for an investigation. “FDNS does not have operational authority and responsibility with regards to adjudicating immigration applications or petitions, nor does it exercise any supervisory authority over the CIS adjudicators and offices that conduct these adjudications.” After a referral, the application is investigated by a FDNS Immigration Officer (IO). The IO memorializes his or her findings or recommendations in a SOF report.

*3: The FDNS does not have decision-making authority—the decision to award immigration benefits lies with the CIS adjudicator, not the IO. …Thus, because the FDNS lacks decision-making authority, the SOFs are necessarily predecisional.[and are protected by the deliberative process privilege]

United States v. Malik, No. 15-cv-9092, 2016 WL 3167307, at *5-6 (D. Kan. June 7, 2016):

Mr. Malik was in a denaturalization procedure, being accused of marrying wife #2 while still being married to wife #1. The Court held that reports of the FDNS investigator

[Statement of Findings, consisting of nine pages, and a Fraud Referral Sheet, consisting of three pages] were protected by the deliberative process privilege. The documents were “recommendations prepared for the purpose of deciding whether to forward Malik’s case for denaturalization litigation,” and would not be used as evidence against Malik.

Pitman v. USCIS, No. 17-cv-166, 2018 WL 6725535, at *3 (D. Utah Dec. 21, 2018) involved possible fraud in a Form I-130 petition. A report of an FDNS officer was protected in part by the deliberative process privilege. However, certain facts could be segregated and released. The Tenth Circuit has explicitly prohibited the withholding of “factual material simply because it reflects a choice as to which facts to include in a document.” Trentadue, 501 F.3d at 1229.

The law enforcement privilege protects detailed internal procedures and system checks that USCIS uses to vet fraud cases. Handwritten notes of the interviewing officer—who was not the ultimate decision maker— are protected, so long as all factual portions of the document are inextricably intertwined with the officer’s evaluations and conclusions.

[Comment by the author: these cases do not mention “harm” to the agency, a requirement added to FOIA in the 2016 amendments, which added § 552(a)(8)(A). That subsection requires the the agency to show that it “reasonably foresees that disclosure would harm an interest

protected by an exemption described in subsection (b).” 5 U.S.C. § 552(a)(8)(A).]

ATTORNEY CLIENT PRIVILEGE Page 41

“The communication relates to a fact of which the attorney was informed: (a) by the client; (b) in confidence; and (c) for the purpose of securing primarily an opinion of law, or legal services or assistance in some legal proceeding.”

Alpha Painting & Constr. Co., Inc. v. Delaware River Port Auth., 208 F. Supp. 3d 607, 623–624 (D.N.J. 2016) (attorney -client privilege protects only those disclosures necessary to obtain legal advice; agency cannot delegate executive functions to lawyers, have those lawyers dictate actions of non-lawyers who communicate with the public, and thereby push communications under umbrella of attorney-client privilege).

In re Kellogg Brown & Root, Inc., 756 F.3d 754, 759–760 (D.C. Cir. 2014) (court should not try to find “the one primary purpose in cases where a given communication plainly has multiple purposes.

ATTORNEY WORK PRODUCT DOCTRINE Page 44

The District of Columbia Circuit has distinguished between “neutral, objective analyses of agency regulations'' and “more pointed documents” that “advise the agency of the types of legal challenges likely to be mounted against a proposed program, potential defenses available to the agency, and the likely outcome” in determining whether a document is prepared in anticipation of litigation. Delaney, Migdail& Young, Chartered v. IRS, 826 F.2d 124, 127 (D.C. Cir. 1987).

The doctrine does not protect “the agency's view of the law” which a lawyer could use to “advise clients on how to comply” with the law; the doctrine does protect “the agency's attorneys' assessment of the program's legal vulnerabilities” which a lawyer could use in arguments against a program.

COMMENTS OF THE AUTHOR

Trainings by senior lawyers to junior lawyers may be protected by the attorney-client privilege

Most people believe the “attorney-client privilege” protects “confidential disclosures by a client to an attorney made in order to obtain legal assistance.” Fisher v. U.S. 425 U.S. 391, 403 (1976). That belief is correct. However, some communications from the attorney to the client are protected as well. The privilege “exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.” Upjohn Co. v U.S. 449 U.S. 383, 392, (1981).

The D.C. Circuit stated: “As relevant here, the privilege applies to a confidential communication between attorney and client if that communication was made for the purpose of obtaining or providing legal advice to the client.” In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757, 410 U.S.App.D.C. 382, 385 (C.A.D.C., 2014)

The Department of Justice cites the above cases, to convince judges that trainings given by senior lawyers to junior lawyers are privileged. In the governmental context, the ‘client’ may be the agency and the attorney may be an agency lawyer.

 This argument is flawed; however, here is some background:

Corporations are subject to a “vast and complicated array of regulatory legislation” which requires them to “constantly go to lawyers to find out how to obey the law, ... particularly since compliance with the law in this area is hardly an instinctive matter.” Upjohn Co. v U.S. 449 U.S. 383, 392, (1981). So, corporations often undertake internal investigations “to ensure the company’s compliance with the law.” Communications are made by employees to company attorneys. These communications are privileged.

Some investigations are mandated by regulation; some are voluntarily conducted in the discretion of the company.

In re Kellogg Brown & Root, Inc., 756 F.3d 754 (C.A.D.C., 2014) involved a qui tam action against a defense contractor under the False Claims Act. The district court held that an internal investigation was not privileged, because its “primary purpose” was to comply with a Department of Defense regulation, rather than “to obtain or provide legal advice.” The D.C. Circuit reversed, stating that communications can be made both for legal purposes and for business purposes. It is wrong to try to find the one primary purpose. The correct test is:

Was obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication?

Providing legal advice could be privileged, if the advice is based on confidential facts obtained from the client. “Communications from attorney to client are shielded if they rest on confidential information obtained from the client.” In re Sealed Case, 737 F. 2d 94, 99 (D.C.Cir.1984). Correlatively, “when an attorney conveys to his client facts acquired from other persons or sources, those facts are not privileged.” Brinton v. Department of State, 636 F.2d 600, 604 (D.C.Cir.1980)

The Department of Justice argues that Employee #1 gives “confidential information” to Lawyer. Later, the lawyer gives training to other lawyers, using that information. Therefore, the training is protected by the attorney-client privilege. Is this in fact what happened? The burden of proof is on the agency to demonstrate the above.

Are “facts” required to be in the “communications”? What if “information” is given by the employee to the lawyer. Is that the same as “facts”? The case law is not crystal clear.

National Press Club Journalism Institute v. US ICE sets forth the attorney-client privilege requirements clearly

In National Press Club Journalism Institute v. United States Immigration and Customs Enforcement, 2023 WL 9001337, at *1 (D.D.C., 12-28-2023), the Court stated:

*12 : “The government bears the burden of proving, through ‘detailed and specific information,’ that the withheld information falls within the attorney-client privilege.”

The government must show:

(1) [T]he holder of the privilege is, or sought to be, a client; (2) the person to whom the communication is made is a member of the bar or his subordinate and, in connection with the communication at issue, is acting in his or her capacity as a lawyer; (3) the communication relates to a fact of which the attorney was informed by his client, outside the presence of strangers, for the purpose of securing legal advice; and (4) the privilege has been claimed by the client. 2023 WL 9001337, at *12

The government must also show: the communication was made in confidence at the time of the communication, and that such confidentiality has been “maintained since.” 2023 WL 9001337, at *13 [emphasis in original]

The government must also show: securing legal advice was a primary purpose of the

withheld communications. Id. at *13

= == =

Wilderness Workshop v. Dep’t of Agric., Civ. A. No. 21-2108 (JMC), 2023 WL

5672578, at *9 (D.D.C. Sept. 1, 2023) involved land surrounded by a national forest. A company wanted to construct roads to provide access to homes. Concerning the attorney-client privilege, the Court stated:

The privilege does not protect communications in which an “attorney conveys to his client facts acquired from other persons or sources.” In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984). Nor does it protect the facts themselves, which might be contained in a privileged communication but are discoverable by other means. Upjohn, 449 U.S. at 395–96. Finally, the privilege applies only to confidential communications; if an otherwise-protected communication is subsequently disclosed to a third party—even inadvertently—the privilege is waived not only as to that specific communication, but also as “to all other communications relating to the same subject matter.” In re Sealed Case, 877 F.2d 976, 980–81 (D.C. Cir. 1989).

Shteynlyuger v. Centers for Medicare and Medicaid Services, 2023 WL 6389139, at *29 (D.D.C., 9-30-2023) involved a request by a physician for records pertaining to the requirements of the Health Insurance Portability and Accountability Act [HIPAA]. The Court criticized the agency’s description of why the attorney-client privilege protected some documents:

“This generic description does not allow the Court to determine whether the withheld material constitutes ‘confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice.’.... To take just one example, stylistic suggestions (‘don't split your infinitives), even if offered by a lawyer, are not necessarily privileged.”

Some cases suggesting that training materials are protected under the attorney-client privilege

Nat’l Sec. Couns. v. CIA, 206 F. Supp. 3d 241, 285–87 (D.D.C. 2016) involved training slides about responding to FOIA requests. The agency declarant stated that the records were always maintained confidentially. There was no evidence that the records were shared broadly in the agency. The Court held the privilege applied.

[Comment: the Court did not mention the word “facts.” The Court did not discuss what facts went from the client to the lawyer.]

On appeal, the slides were not discussed. 969 F.3d 406 (D.C. Cir. 2020). The Court discussed a FOIA request for opinions of the Office of Legal Counsel in the Department of Justice. The lawyer mentioned the opinions in public. Does that constitute a waiver? No, because the privilege is held by the client. If a lawyer betrays the secret, there is no waiver. A lawyer may not waive the privilege.

Willis v. Progressive Direct Ins. Co., Civ. A. No. 22-0349, 2023 WL 4305130, at *4 (W.D. Okla. June 30, 2023) involved training given by an insurance company to its employees. A lawyer instructed employees how to properly handle first and third party claims in accordance with Oklahoma [law].” “Here, the Court finds that the PowerPoint slides contain legal advice and are squarely protected by attorney-client privilege.”

[comment by the author: the Court does not discuss whether the client gave “facts” to the lawyer, or whether the training contained facts}

= = = =

In re Currency Conversion Antitrust Litig., Civ. A. No. 05-7116, 2010 WL 4365548, at *6 (S.D.N.Y. Nov. 3, 2010) involved decisions by a bank, about whether to add arbitration provisions to their consumer credit card agreements. To be privileged, a communication must be for the purpose of obtaining or providing legal advice and assistance. Where, as here, in-house counsel, who are often business executives, are involved in the communications, “the question usually is whether the communication was generated for the purpose of obtaining or providing legal advice as opposed to business advice.” County of Erie, 473 F.3d at 419; see also AIU Ins. Co., 2008 WL 4067437, at *6 (“[W]here in-house counsel also serves as a business advisor within the corporation, only those communications ‘related to legal, as contrasted with business, advice are protected.(quoting TVT Records v. Island Def Jam Music Group, 214 F.R.D. 143, 144 (S.D.N.Y.2003)). The test to be employed is “whether the predominant purpose of the communication is to render or solicit legal advice.” Id. at 420.

Furthermore, the originator of the communication must have intended that it be kept confidential, and it may not be circulated beyond those employees with the need to know the information.

Nor does the Court agree with Plaintiffs' contention that such things as training materials are, by definition, business documents, and cannot be privileged because the predominant purpose of these documents was not to convey legal advice. Thus, according to Plaintiffs, “a lawyer simply drafting a Q & A is a lawyer engaged in a business practice.” (Pls.' Reply Mem. at 7, n.8.) Having reviewed the draft training materials, which were authored by an attorney and sent to other attorneys for revisions, it is clear that these are materials for which a corporation would choose to rely upon an attorney's advice and legal expertise. In the materials, attorneys are advising customer service representatives as to what the arbitration provision means and entails, and how to respond to customer questions about the arbitration provision. Where interactions with customers can reasonably be expected to have legal consequences, advice from an attorney on how to respond to customer inquiries is legal advice.

[Comment by the author: the court does not discuss whether “facts” were given by the client to the lawyer.]

Santer v. Tchrs. Ins. & Annuity ***’n, Civ. A. No. 06-1863, 2008 WL 821060, at *1

(E.D. Pa. Mar. 25, 2008) involved materials related to training that defendant Standard Insurance Company (Standard) provided to its claims department representatives concerning bad faith insurance practices, insurance litigation in general, and privacy rights.

The Third Circuit sets forth this test:

(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his or her subordinate, and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in some legal proceeding, and (d) not for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

Rhone-Poulnec Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 862 (3d Cir.1994).

“The contents of the materials, generally speaking, include explanations of basic legal concepts and direction concerning where claims representatives fit into the legal process when Standard is sued. The materials are thus communications from an attorney to a client that reflect communications from the client to the attorney for the purpose of securing an opinion of law.”

Santer, 2008 WL 821060, at *1

[comment by the author: the court does not explain what the “communications from the client to the attorney” were. The Third Circuit requires a fact of which the attorney was informed by his client. The Santer court does not mention the word “fact.”

WORK PRODUCT

To show that information is exempt from FOIA as attorney work product, an agency “must

(1) provide a description of the nature and contents of the withheld document, (2) identify the

document’s author or origin (by job title or otherwise), (3) describe the factual circumstances that

surround the document’s creation, and (4) provide some indication of the type of litigation for

which the document’s use is at least foreseeable.” Am. Immigr. Council v. Dep’t of Homeland

Sec., 21 F. Supp. 3d 60, 78 (D.D.C. 2014).

=

FORESEEABLE HARM

The agency must show that it “reasonably foresees that disclosure would harm an interest

protected by an exemption described in subsection (b).” 5 U.S.C. § 552(a)(8)(A).

“[I]n the case of the attorney-client and work-product privileges, ‘for which the risk of

harm through disclosure is more self-evident and the potential for agency overuse is attenuated,’

an agency may not need to provide as much information to satisfy the foreseeable harm

requirement.” Wilderness Workshop v. Dep’t of Agric., Civ. A. No. 21-2108 (JMC), 2023 WL

5672578, at *9 (D.D.C. Sept. 1, 2023)

DUTY TO SEGREGATE AND RELEASE PORTIONS

The duty to segregate and release portions is mentioned twice in the FOIA: once in §552(b) and again in § 552(a)(8).

5 U.S.C. § 552(b) lists exemptions to the requirements of FOIA. After nine exemptions are set forth, the text provides: “Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” This requirement is set forth in § 552(b)(1)(9).

  • 552(a)(8)(A)(ii) provides that an agency must “consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible” and must “take reasonable steps necessary to segregate and release nonexempt information.”

The D.C. Circuit explains: “The segregability requirement thus extends to both steps of FOIA's sequential inquiry: Even if an exemption covers an entire agency record, the agency still must release any reasonably segregable information within the record that could be disclosed without causing reasonably foreseeable harm to an interest that the exemption protects. Leopold v Department of Justice, 94 F.4th 33, 37 (D.C.Cir. 2024).

The agency must attempt to determine if there are any segregable portions of the otherwise exempt document that can be released. The agency must explain its efforts to find such portions. In Shteynlyuger v. Centers for Medicare and Medicaid Services, 2023 WL 6389139, at *31 (D.D.C., 9-30-2023) the Court criticized the agency’s description of its efforts:

The problem is that “the Court need not [and ought not] blindly accept an agency's conclusory assurance that it has taken reasonable steps to segregate information if the record suggests otherwise or the Vaughn index and declarations are not sufficiently detailed to permit the Court to meaningfully assess whether further segregability is possible.”


About The Author

David L. Cleveland was the Chair of the AILA Asylum Committee [2004-05] and has secured asylum or withholding for persons from 48 countries. He has assisted the Louise Trauma Center in many FOIA lawsuits. Based in Washington DC, he is available at louise.trauma.ltc@gmail.com

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.