Two FOIA Decisions Affecting Criminal Law – Update for July 21, 2016

We’re still doing a weekly newsletter … we’re just starting to post pieces of it every day.  The news is fresher this way …

(Note: We updated this post on July 23, 2016)



GBL160725Two Freedom of Information Act decisions of particular interest to our readers were handed down in the past few days, one good for inmates and one bad.  And a case filed in D.C. Federal Court accuses the FBI of a FOIA practice that;s just plain ugly.

The Good: A week ago, the 6th Circuit reversed its 20-year holding that arrestees’ mugshots are discoverable by the news media and public under FOIA. The Court summarized its holding as follows: “In 1996, we held that FOIA required the release of booking photos of criminal defendants who have appeared in court during ongoing proceedings, finding that criminal defendants lack any privacy interest in the photos. Detroit Free Press, Inc. v. Dep’t of Justice (Free Press I), 73 F.3d 93 (6th Cir. 1996). Twenty years and two contrary circuit-level decisions later, we find Free Press I untenable. Individuals enjoy a non-trivial privacy interest in their booking photos. We therefore overrule Free Press I.”

The holding is especially important because it affected arrestees around the country. No matter what other circuits said, if a newspaper in Los Angeles, for instance, needed the booking photo of Dennis Defendant – who was being held in San Diego – the reporters would just call a buddy at the Detroit News (or anywhere else in the 6th Circuit). The Detroit reporter would request the picture, and because any FOIA action to get it could be filed in the 6th Circuit, the San Diego cops would send the photo.

 No more free booze at Christmas for 6th Circuit-based reporters...
No more free booze at Christmas for 6th Circuit-based reporters…

No more. The 6th Circuit is now aligned with other federal circuits. This means that reporters in Detroit doing favors for their friends elsewhere in America can no longer look forward to that bottle of single malt arriving every Christmas.

The Bad: The National Association of Criminal Defense Lawyers asked the DOJ for a copy of the Federal Criminal Discovery Blue Book. The Blue Book is a manual created by DOJ to guide federal prosecutors in the practice of discovery in criminal prosecutions containing advice about conducting discovery, including guidance about the obligation to provide discovery to defendants. It would be a treasure trove for defense attorneys, like having the other team’s playbook before the game.

Naturally, DOJ refused to disclose the Blue Book, invoking FOIA Exemption 5, which exempts from disclosure agency records that would be privileged from discovery in a lawsuit with the agency. DOJ said the Blue Book fell within the attorney work-product privilege, and therefore Exemption 5, because it was prepared by and for attorneys in anticipation of litigation. The district court agreed . Last week, the D.C. Circuit did, too.

Under Exemption 5, agencies may 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.” Exemption 5 allows the government to withhold records under at least three privileges: the deliberative-process privilege, the attorney-client privilege, and the attorney work-product privilege.

Here, the Court said, release would offend the attorney work-product privilege. The privilege provides a working attorney with a ‘zone of privacy’ within which to think, plan, weigh facts and evidence, candidly evaluate a client’s case, and prepare legal theories, the Court said. “Protecting attorney work product from disclosure prevents attorneys from litigating “on wits borrowed from the adversary.”

In ascertaining whether a document is covered by the work-product privilege, the Court applied a “‘because of’ test, asking whether, in light of the nature of the document and facts in the case, the document “can fairly be said to have been prepared or obtained because of the prospect of litigation.” For that standard to be met, the attorney who created the document must have “had a subjective belief that litigation was a real possibility,” and that subjective belief must have been “objectively reasonable.”

BlueBook160725The Blue Book describes the nature and scope of federal prosecutors’ discovery obligations under applicable constitutional provisions, caselaw, and the Federal Rules of Criminal Procedure. It has nine chapters, written by DOJ prosecutors with expertise in a wide range of discovery-related topics, addressing subjects including: Federal Rule of Criminal Procedure 16, regarding discovery; the government’s obligations to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972); disclosure duties arising from the Jencks Act, 18 U.S.C. § 3500; items protected from disclosure; and the use of protective orders and ex parte and in camera submissions in discovery. The Blue Book contains confidential legal analysis and strategies to support the Government’s investigations and prosecutions, and is nothing less than an internal manual containing litigation strategies.

Thus, the Court concluded, the Blue Book was “created in anticipation of reasonably foreseeable litigation,” namely, federal criminal prosecutions, and does not have to be disclosed.

The Ugly:  A lawsuit filed recently in the U.S. District Court for the District of Columbia claims the FBI uses outdated information technology systems to deliberately block FOIA requests. A Massachusetts Institute of Technology security researcher claims the agency deliberately runs FOIA searches through a decades-old system – knowing the searches will fail to produce any results.

“The FBI will do anything in their power to maintain functional immunity from FOIA requests. They’re outright hostile to FOIA,” the researcher told the Wall Street Journal. He says instead of full-text search, the agency uses an antiquated index system similar to a library card catalogue.

The FBI denies the allegation.




Detroit Free Press v. Dept. of Justice, Case No. 14-1670                           (6th Cir. July 14, 2016)

Nat’l Ass’n of Criminal Defense Attorneys v. Dept. of Justice,                  Case No. 15-5051 (D.C. Cir. July 19, 2016)

FBI Blocking FOIA Requests With Aging IT, Lawsuit Alleges, Wall Street Journal (July 22, 2016)


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