UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLIE SAVAGE, et al.,

Plaintiffs, v. Civil Action No. 22-2477 (JEB)

UNITED STATES DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION

In the last poem of his “Four Quartets,” T.S. Eliot wrote:

We shall not cease from exploration And the end of all our exploring Will be to arrive where we started And know the place for the first time.

Few litigants know this paradox of journeys as well as the parties here, who, on the heels of a

prior dispute in the Second Circuit, return to the same starting point only to find the terrain much

transformed.

Back in 2014, The New York Times Co. and star reporter Charlie Savage sued the

Department of Justice to obtain certain records under the Freedom of Information Act. Their

request? Federal Bureau of Investigation interview memoranda as well as reports from former

Acting U.S. Attorney John Durham related to the criminal investigation into the Central

Intelligence Agency’s rendition, detention, and interrogation program following 9/11 (as well as

1 the Agency’s destruction of videotapes depicting its tactics). In the end, those plaintiffs came up

largely empty.

Much has changed since that suit was filed, including the enactment of the FOIA

Improvement Act of 2016 and the release of other public records concerning the CIA’s use of

torture. In a second bid to secure the same records, The Times and Savage — now joined by

another Plaintiff, longtime investigative journalist and author Scott Shane — filed suit in this

Court, alleging that DOJ’s withholdings under FOIA Exemption 5 flunk the foreseeable-harm

requirement introduced under the 2016 Act and are untenable in light of other relevant

information that has already been disclosed to the public. The parties have now cross-moved for

summary judgment on those issues, although Justice has since withdrawn its Motion in part as to

the withheld interview memoranda. Finding that the disclosure of any portion of the withheld

reports would result in foreseeable harm, the Court will grant DOJ’s Motion (as modified). It

will return to the interview memoranda once the parties have teed up that issue down the road.

I. Background

The following facts are undisputed. In 2008, then-Attorney General Michael Mukasey

appointed John Durham — at the time, an Assistant United States Attorney in Connecticut — to

serve as the Acting United States Attorney for the Eastern District of Virginia and lead an

investigation into the CIA’s destruction of videotapes of detainee interrogations. See ECF No.

25-4 (Declaration of Douglas Hibbard), ¶ 4. In 2009, Mukasey’s successor, Eric Holder,

expanded Durham’s mandate to include whether the treatment of detainees itself violated federal

law. Id., ¶ 5. What followed in the coming years was a series of public announcements from the

Department of Justice concerning the direction and conclusions of his investigation. First, in

November 2010, Justice issued a press release stating that Durham’s investigation into the

2 destruction of tapes had concluded and that he would not pursue criminal charges. Id., ¶ 6. In

June 2011, it announced that, at Durham’s recommendation, a full criminal investigation would

be conducted into the deaths of two individuals and that Durham was vested with authority to

determine whether to bring charges. Id., ¶ 7. Finally, in August 2012, that investigation, too,

came to a close, and the Department announced that no criminal charges would be filed. Id., ¶ 8.

In April 2014, The Times and Savage submitted a FOIA request to DOJ for “any reports

to the attorney general or deputy attorney general describing or presenting [Durham’s] findings,”

and another to both DOJ and the FBI for “all FBI FD-302 reports summarizing interviews

conducted as part of” his investigation. See ECF No. 1 (Compl.), ¶ 16. This first effort yielding

nothing, both requesters filed suit in the Southern District of New York, where the Government

invoked the attorney-work-product and deliberative-process privileges under FOIA Exemption 5

as a basis for categorically withholding every responsive document. See New York Times Co. v.

DOJ,

(S.D.N.Y. 2015). At issue in that litigation were an untold number of

302 forms and ten other reports. Three reports arose from the tape-destruction investigation —

viz., a 1,037-page final report, a 2012 memorandum to the Deputy Attorney General regarding

whether any potential witnesses had lied to investigators or a grand jury, and a draft version of

the same. The other seven derived from the detainee-interrogation investigation — viz., two

“interim reports,” two “supplemental reports,” a final report recommending a full criminal

investigation into the deaths of two detainees, and two reports declining to prosecute anyone in

connection with those deaths. See

at 466–67; see also New York Times Co. v. DOJ, No. 14-

3777 (S.D.N.Y.), ECF No. 17 at 26–27 (2014 Vaughn Index).

The district court granted in part and denied in part the Department’s motion for

summary judgment, concluding that the work-product privilege shielded all the 302s and all but

3 five of the foregoing reports in their entirety. New York Times, 138 F. Supp. 3d at 475–76. As

to the ones it ordered disclosed, the court found DOJ’s withholding invalid under what is known

in the Second Circuit as the “express adoption doctrine.” The doctrine holds that a document

loses its protection under Exemption 5 if the agency “has chosen expressly to adopt it or

incorporate it by reference” into official agency policy, and it rests on the intuition that “[t]he

government may not rely on the legitimacy and authority that a document provides while

keeping that document secret.”

(cleaned up). Justice, according to the district

court, had “expressly adopted” Durham’s final-recommendation and supplemental reports by

publicly announcing that it would pursue a full investigation into the deaths of two detainees, and

his two declination reports by publicly announcing a decision not to file charges — all in explicit

reliance on each document.

at 476–79. Such reliance vitiated whatever work-product or

deliberative-process protection that would otherwise apply.

. Following another round

of summary-judgment briefing, in which the Government invoked other exemptions to withhold

certain information within those five reports, the Court ordered the Government to produce them

with redactions. New York Times Co. v. DOJ,

(S.D.N.Y. 2017).

The Second Circuit reversed in part, clarifying that the express-adoption doctrine did not

apply. See New York Times Co. v. DOJ,

, 492–93 (2d Cir. 2019) (doctrine applies

only where “previously-privileged intra-agency document has become binding ‘working law,’”

which did not occur here). The court also found, however, that the Department had waived any

claim of privilege over portions of the responsive documents “relat[ing] to the conclusion that

some of the detainees were not in CIA custody” because the Attorney General had divulged that

information in a public statement.

. All told, only a portion of one of Durham’s reports

was released to The Times. See New York Times Co. v. DOJ,

, 30–31

4 (S.D.N.Y. 2021); see also ECF No. 25-4 at 86–88 (Vaughn Index). The Government was

permitted to cloak the rest.

In June 2016 — after the aforementioned lawsuit was filed but before any records were

disclosed — Congress enacted the FOIA Improvement Act, which introduced, in relevant part, a

new requirement that an agency may withhold information subject to a FOIA exemption only if

it “reasonably foresees that disclosure would harm an interest protected by [the] exemption.”

(a)(8)(A)(i)(I). Whether DOJ had satisfied this new foreseeable-harm requirement

was not an issue in the New York case. See ECF No. 29 (Pl. MSJ) at 10 & n.4. Dissatisfied

with the fruits of that litigation and sensing an opportunity for further relief (based on the change

in law and other developments that they believe have placed portions of the withheld reports in

the public domain), The Times and Savage submitted another FOIA request to DOJ on June 7,

2022 — to wit, “all reports to the attorney general or deputy attorney general describing or

presenting findings and recommendations, and all FBI FD-302 forms and FD-1023 forms

summarizing witness and source interviews, in connection with John Durham’s investigation into

the CIA’s rendition, detention, and interrogation program.” Compl., ¶ 23. Shane submitted a

separate but identical request to DOJ and two of its components — the Criminal Division and

Office of Information Policy — three weeks later. Id., ¶ 24.

Plaintiffs then filed the present lawsuit in August 2022 after the Department failed to

release responsive documents or otherwise make a final determination on their FOIA requests.

Id., ¶ 25. The agency subsequently informed Plaintiffs that its search efforts had located no

1023s, and that it was withholding the reports and 302s that its search had uncovered. See

Hibbard Decl., ¶ 18; see generally Pl. MSJ. Because Plaintiffs do not contest the adequacy of the

5 search, at issue is only Justice's withholding of the same ten reports and FD-302s that were at

stake in the New York litigation. See Vaughn Index.

The parties have agreed to bifurcate the briefing in this matter, allowing the Court to

address first whether the documents at issue are categorically exempt from disclosure under the

attorney-work-product and/or deliberative-process privileges under Exemption 5. If so, this

would spare the Government the inconvenience of carving out withholdings on a more surgical

basis under other FOIA exemptions. See Minute Order of May 2, 2023. Before the Court now

are the parties’ dueling Motions for Summary Judgment on that categorical issue. The Times

and Savage conceded at their earlier joust with the Government in New York that all of the

relevant records fall within one or both of those privileges, and neither they nor Shane argue

otherwise now. See New York Times,

. Rather, they stake their case

on the twin hills of foreseeable harm and waiver through public disclosure. See Pl. MSJ at 16.

On March 28, 2024, the Court — as it often does in these circumstances — ordered the

Government to submit all withheld records for in camera review. See Minute Order of March

28, 2024. While carrying out that request, however, the Government discovered that certain

302s had been disclosed to “individuals outside the Government” and that the Federal Bureau of

Investigation had identified another file room where additional responsive 302 forms might be

stored. See ECF No. 43 (Mot. to Modify) at 3–4. DOJ, accordingly, withdrew its argument that

the 302s were categorically exempt under Exemption 5 and resolved to fully process them —

i.e., review them and apply further (more limited) FOIA exemptions in consultation with the

CIA.

at 4–5.

Noting the unique burdens associated with organizing in camera review of these highly

classified materials and having withdrawn the sole basis for withholding the 302s in full, DOJ

6 asked the Court to exempt those documents from its review.

at 5–6. The Court has obliged

and reviewed only the ten reports that remain at issue.

II. Legal Standard

Summary judgment must be granted 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); see also Anderson v. Liberty Lobby, Inc.,

, 247–48 (1986);

Holcomb v. Powell,

(D.C. Cir. 2006). A fact is “material” if it can affect the

substantive outcome of the litigation. See Liberty Lobby,

; Holcomb,

. A dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Liberty Lobby,

; see also Scott v. Harris,

(2007); Holcomb,

. “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion” by “citing to particular parts of materials in the

record” or “showing that the materials cited do not establish the absence or presence of a genuine

dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.

R. Civ. P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a

genuine issue of material fact. See Celotex Corp. v. Catrett,

(1986).

“FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defenders of Wildlife v. U.S. Border Patrol,

(D.D.C. 2009); Brayton v.

Office of U.S. Trade Rep.,

(D.C. Cir. 2011). In a FOIA case, a court may

grant summary judgment based solely on information provided in an agency’s affidavits or

declarations when they “describe the justifications for nondisclosure with reasonably specific

detail, demonstrate that the information withheld logically falls within the claimed exemption,

and are not controverted by either contrary evidence in the record nor by evidence of agency bad

7 faith.” Larson v. U.S. Dep’t of State,

(D.C. Cir. 2009) (citation omitted).

Such affidavits or declarations “are accorded a presumption of good faith, which cannot be

rebutted by purely speculative claims about the existence and discoverability of other

documents.” SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991) (citation and

internal quotation marks omitted). “Unlike the review of other agency action that must be

upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly

places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine

the matter de novo.’” DOJ v. Reps. Comm. for Freedom of the Press,

(1989)

(quoting

(a)(4)(B)). Summary judgment is only proper when the court is assured

that the record justifies the result. See Ctr. For Investigative Reporting v. Customs & Border

Prot.,

, 100 (D.D.C. 2019).

III. Analysis

Under FOIA, “each agency, upon any request for records which (i) reasonably describes

such records and (ii) is made in accordance with published rules[,] . . . shall make the records

promptly available to any person.”

(a)(3)(A). If the records fall into one of nine

statutorily created exemptions, however, the Government need not turn over the requested

information.

§ 552(b)(1)–(9). To show that an exemption applies and justifies the

withholding of records, the Government “must provide a ‘relatively detailed justification’” for its

withholding, “specifically identifying the reasons why [the] exemption is relevant.” Morley v.

CIA,

(D.C. Cir. 2007) (quoting King v. DOJ,

(D.C. Cir.

1987). This Court can compel the release of any records that do not satisfy the requirements of

at least one exemption. See Reps. Comm. For Freedom of Press,

.

8 At issue here is Exemption 5, which applies to “inter-agency or intra-agency

memorandums or letters that would not be available by law to a party other than an agency in

litigation with the agency.”

(b)(5). In other words, under Exemption 5, an agency

may withhold from a FOIA requester any “documents[] normally privileged in the civil

discovery context.” NLRB v. Sears, Roebuck & Co.,

(1975); see also United

States v. Weber Aircraft Corp.,

(1984). The only Exemption 5 privileges

contested here are deliberative process and the attorney work product. The former permits

withholding “predecisional” and “deliberative” agency records, Access Reps. v. DOJ,

(D.C. Cir. 1991), to protect the free exchange of “opinions, ideas, and points of

view” within an agency’s operations and decisionmaking processes. Ackerly v. Ley,

(D.C. Cir. 1969). The latter, meanwhile, “shields materials prepared in anticipation

of litigation,” McKinley v. Bd. of Governors of the Fed. Reserve Sys.,

(D.C.

Cir. 2011) (cleaned up), to protect from disclosure the “mental impressions, conclusions,

opinions, or legal theories of an attorney or other representative of a party concerning litigation.”

Heggestad v. DOJ,

(D.D.C. 2000).

It is important to bear in mind that Plaintiffs have no quarrel with the general

applicability of the privileges to all ten reports. They challenge only DOJ’s application of the

“foreseeable-harm” standard to the documents. This standard dictates that an agency may

withhold information that falls within a FOIA exemption’s scope “only if . . . the agency

reasonably foresees that disclosure would harm an interest protected by” the exemption at issue.

See

(a)(8)(A)(i)(I); see also Reporters Committee for Freedom of Press v. FBI,

(D.C. Cir. 2021) (The agency invoking an exemption must provide a “focused

and concrete demonstration of why disclosure of the particular type of material at issue will, in

9 the specific context of the agency action at issue, actually impede those same agency

deliberations going forward.”) (emphasis added); see also Ctr. for Investigative Reporting, 436 F.

Supp. 3d at 106 (explaining that agency must “identify specific harms to the relevant protected

interests that it can reasonably foresee would actually ensue from disclosure of the withheld

materials” and “connect [such] harms in a meaningful way to the information withheld”)

(cleaned up).

This case, accordingly, centers on whether Justice has sufficiently articulated a harm —

as to all the reports — meeting the foregoing standard. The parties have raised two threshold

issues, however, that could potentially obviate the need to consider that question: (1) Is this

lawsuit precluded by the judgment entered in the Southern District of New York? (2) Are the

reports (or portions thereof) already in the public domain, thereby waiving any assertion of

privilege? The Court begins with these questions; ultimately answering both in the negative, it

then turns to foreseeable harm.

A. Res Judicata

Justice initially argues that Plaintiffs’ claims are all precluded “by virtue of the

2014 litigation before the Southern District of New York and the United States Court of Appeals

for the Second Circuit.” ECF No. 32 (Def. Reply & Opp.) at 2. Plaintiffs riposte that such

position has been waived because DOJ did not plead it in its Answer, see ECF No. 10 (Answer),

¶ 3 (asserting only that Savage and The Times are “collaterally estopped from challenging the

same issues that were decided” in New York case) (emphasis added); that the addition of Shane

as a Plaintiff eliminates any preclusive effect that prior litigation would otherwise have; and that,

in any event, that material factual and legal developments post-dating the filing of the New York

Complaint — i.e., the passage of the FOIA Improvement Act and certain public disclosures

10 regarding the CIA’s detention and interrogation program — render preclusion inoperative. See

ECF No. 35 (Pl. Reply) at 2–5.

Whatever the merits of Plaintiffs’ first contention, the latter two suffice to allow this

lawsuit to proceed. The doctrine of claim preclusion provides that “a final judgment forecloses

successive litigation of the very same claim, whether or not relitigation of the claim raises the

same issues as the earlier suit.” Taylor v. Sturgell,

(2008). “Issue preclusion,

in contrast, bars successive litigation of an issue of fact or law actually litigated and resolved in a

valid court determination essential to the prior judgment, even if the issue recurs in the context of

a different claim.”

Both doctrines serve to prevent “parties from contesting matters that they

have had a full and fair opportunity to litigate.”

As such, they generally do not apply to

nonparties, except in six specific circumstances. See

at 893–95 (listing them).

There is clearly no claim- or issue-preclusive effect as to Shane because he was not a

party in the New York case, and no recognized basis for nonparty preclusion applies here.

Insisting otherwise, DOJ points to two: first, Shane, as a former writer for The Times, has a

preexisting “substantive legal relationship” with the company, and second, his interests were

otherwise “adequately represented” by it previously. See Def. Reply & Opp. at 4. But Justice

cites no case in which a prior employment relationship was deemed to have created an identity of

interests so strong as to preclude a later suit by employer or employee.

(citing caselaw on

“[b]usiness partners” or “LLC” and “its sole member” or “individual and his company”). And an

employment relationship bears no resemblance to the kinds of ties that have previously been

found to merit preclusion. See Taylor,

(listing as examples “preceding and

succeeding owners of property, bailee and bailor, and assignee and assignor”); see also Charles

Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 4460 (3d ed. Apr. 2023)

11 (“Without more, litigation by an employer is not binding on employees.”). Nor was Shane

“adequately represented” because there is no evidence that The Times and Savage “understood

[themselves] to be acting in a representative capacity” for him in their earlier litigation or that the

New York courts “took care to protect [Shane’s] interests.” Taylor,

(characterizing both factors as “minimum” requirements for adequate representation); see also

, 905–07 (finding that antique-aircraft enthusiast’s prior FOIA lawsuit did not necessarily

preclude subsequent suit by his “close associate” for same records, in part because latter’s

interests were not adequately represented). At the least, then, Shane may press this suit forward

on his own.

In any event, for all parties, this lawsuit presents issues and claims that were not (and

could not have been) raised at the time the New York suit was filed in May 2014. See The New

York Times Co. v. DOJ, No. 14-3777 (S.D.N.Y.). The sole issues here are whether certain

public disclosures postdating that suit have waived DOJ’s asserted privileges and whether

Defendant has met the foreseeable-harm requirement introduced by an act of Congress in 2016.

See FOIA Improvement Act of 2016,

Stat. 538. Plaintiffs’ only claims

arise from Justice’s refusal to provide documents in response to their separate FOIA requests in

June 2022 — a refusal made in the context of a reconfigured factual and legal landscape. See

Am. C.L. Union v. DOJ,

(D.D.C. 2004) (“It is clear that res judicata does

not preclude claims based on facts not yet in existence at the time of the original action.”); cf.

Ctr. for Nat. Pol’y Rev. on Race & Urb. Issues v. Richardson,

(D.C. Cir. 1976)

(holding that appellants would need to file a new FOIA request if they wished to litigate whether

Congress’s recent amendment entitled them to records previously found to be exempt from

12 disclosure, as that question presents “a different case and controversy”). Even without Shane,

ergo, this lawsuit would not be precluded.

B. Public Domain

Next up is Plaintiffs’ contention that DOJ’s across-the-board withholding is untenable

because parts of the Durham reports have now entered the public domain. See Pl. MSJ at 26–33.

They identify four relevant disclosures. The first is the partial declassification of a report by the

Senate Select Committee on Intelligence (SSCI) on the CIA’s rendition, detention, and

interrogation program in December 2014. Id. at 6. The second is the public testimony of a

psychologist, James E. Mitchell — whom Plaintiffs consider “a key architect” of that program —

at Guantanamo Bay military commission proceedings in 2020 and 2022. Id. at 7. Third is the

release over time of certain portions of CIA Inspector General reports on the use of enhanced

interrogation techniques on specific detainees. The first such report was partially declassified in

piecemeal fashion between 2008 and 2016, and the second was partially declassified in 2022. Id.

at 8. Finally, Plaintiffs point to a 2011 memoir by former FBI agent Ali Soufan describing his

interrogations of detainees, which the CIA allowed to be published without redactions in 2020.

Id. at 8–9. Although Plaintiffs admit that “it is impossible [for them] to know precisely how

much of the [withheld] information is in the public domain,” they maintain that some of it is

bound to overlap with the four aforementioned disclosures, given that they cover the same (or

similar) subject matter. Id. at 26.

This argument can be dispensed with quickly. Under our Circuit’s public-domain

doctrine, “materials normally immunized from disclosure under FOIA lose their protective cloak

once disclosed and preserved in a permanent public record.” Cottone v. Reno,

(D.C. Cir. 1999). The doctrine only applies, however, if three requirements are met: “(1) the

13 ‘information requested must be as specific as the information previously released’; (2) ‘the

information requested must match the information previously disclosed’; and (3) ‘the

information requested must already have been made public through an official and documented

disclosure.’” CNN v. FBI,

(D.D.C. 2018) (quoting ACLU v. DOD,

(D.C. Cir. 2011)).

Crucially, a disclosure is not deemed “official” if it is “made by someone other than the

agency from which the information is being sought.” Frugone v. CIA,

(D.C.

Cir. 1999); see also Knight First Amend. Inst. at Columbia Univ. v. CIA,

, 44

(D.D.C. 2020) (“[E]ach agency speaks for itself on FOIA disclosure.”), aff’d,

(D.C.

Cir. 2021); Nat’l Sec. Archive v. CIA, No. 23-5017, slip op. at 9–10 (D.C. Cir. June 7, 2024).

There is only one exception to this general rule — namely, that a public disclosure “made by an

authorized representative of the agency’s parent . . . is official as to the subordinate agency.”

Knight First Amend. Inst.,

(cleaned up). The Circuit has applied that exception

in two circumstances. First, “a disclosure by one component of an executive department may

bind another component within the same department.”

(cleaned up). Second, “the

President, as the ‘head’ of the entire Executive Branch, may make official acknowledgments

binding on its agencies.”

(citations omitted).

Plaintiffs’ position falters (most obviously) on this official-disclosure requirement

because none of the four proffered disclosures can be attributed to the Department of Justice. To

start, the SSCI report, as they concede, “emanated from Congress rather than DOJ.” Pl. MSJ at

31; see also Knight First Amend. Inst.,

(noting that D.C. Circuit has “rejected

attempts to establish an agency’s official acknowledgement based on disclosures by Congress”

and collecting cases). To get around this fact, they highlight the President’s involvement in

14 releasing the portions of the report at issue. See Pl. MSJ at 32 (“[T]he President agreed to direct

a declassification review and release of the SSCI report.”) (cleaned up). But a report authored by

a congressional committee on an investigation it conducted does not constitute a disclosure by

him — even if he approved (as Plaintiffs imply) its partial declassification. Cf. Afshar v. U.S.

Dep’t of State,

, 1133–34 (D.C. Cir. 1983) (books by former CIA agents and

officials submitted to CIA “for prepublication review,” and presumably published only upon

agency’s approval, did not constitute official disclosures by agency). Such approval presumably

reflects a judgment that a limited disclosure to the public would not appreciably harm the

national interest. That is distinct, however, from an endorsement of its contents or confirmation

of its veracity.

As for the other three disclosures — involving the CIA IG reports, James Mitchell’s

testimony, and Ali Soufan’s memoir — Plaintiffs have not even attempted to link them to DOJ

or the President in a way that could possibly satisfy the official-disclosure requirement. See Pl.

MSJ at 8 (noting that “CIA allowed the unredacted republication” of Soufan’s memoir, but

failing to contend with Afshar’s holding that such approval is not official acknowledgement); id.

at 28 (arguing that disclosures were made “with the approval of the executive branch,” without

providing further specifics). Nor would such an attempt have succeeded. To begin, the CIA is

not a component of DOJ. Even if the President played a role in directing the partial

declassification of the CIA IG reports, such disclosure (again) does not resemble the kind of

substantive acknowledgment that would bind any executive agency. Cf. Am. C.L. Union v. CIA,

, 428–29 & n.7 (D.C. Cir. 2013) (finding that President officially acknowledged

that United States engages in drone strikes through his and his counterterrorism advisor’s public

statements to that effect). Mitchell, moreover, worked under contract with the CIA between

15 2001 and 2009 and had no “authority to waive that agency’s privilege” via testimony well after

the contract ended, let alone DOJ’s. See Def. Reply & Opp. at 28; CNN,

(“Statements made by former government officials, even high-level ones, do not constitute

official acknowledgment.”). The same goes for Soufan, whose memoir, like any other work

written in the first person, is “received as the private product of [its] author[]” (rather than of any

government agency) and “accorded such respect as [its] content seems to deserve.” Afshar,

.

In a last-ditch appeal to “common sense,” Plaintiffs accept the “general rule” that “‘a

third party agency’s disclosures cannot waive the asserting agency’s right to [withhold],’” but

maintain that “such disclosures may well shift the factual groundwork upon which a district court

assesses the merits of such a response, revealing the futility of withholding when extensive

official disclosures have been made.”

at 32 (quoting Florez v. CIA,

(2d

Cir. 2016)). This point seems orthogonal to the issue at hand: whether the public-domain

doctrine applies. Because Plaintiffs have not identified an official disclosure by DOJ, the answer

is assuredly no.

C. Foreseeable Harm

Having followed these detours to their logical conclusion, the Court returns to the main

route: foreseeable harm. DOJ has asserted attorney-work-product privilege as to every document

it withheld and the deliberative-process privilege as to some of them. See Vaughn Index.

Because the Court ultimately finds that for every report or segregable portion thereof, there is

some reasonably foreseeable harm from disclosure associated with the former privilege, it so

limits its analysis.

16 As noted earlier, under the FOIA Improvement Act, an agency may withhold exempt

records only if it “reasonably foresees that disclosure would harm an interest protected by” the

exemption at issue. See

(a)(8)(A)(i)(I). Congress derived this requirement from

an identical Department of Justice policy originally introduced in 1993 to address “concerns that

some agencies [were] overusing FOIA exemptions that allow, but do not require, information to

be withheld from disclosure” — particularly Exemption 5 and the deliberative-process

privilege. See S. Rep. No. 114-4, at 2–3; see also H.R. Rep. No. 114-391, at 9–10 (“[T]here is

concern that agencies are overusing [FOIA’s] exemptions to protect records that should be

releasable under the law. . . . The deliberative process privilege is the most used privilege and

the source of the most concern regarding overuse.”); RCFP,

. The requirement

forces agencies to “articulate both the nature of the harm [from release] and the link between the

specified harm and specific information contained in the material withheld.” RCFP,

(quoting H.R. Rep. No. 114-391, at 9). They can, consequently, no longer “rely on mere

speculative or abstract fears, or fear of embarrassment to withhold information. Nor may the

government meet its burden with generalized assertions.”

(cleaned up).

The Government contends, as a preliminary matter, that the burden of establishing

foreseeable harm is “lower” for the work-product privilege than it is for deliberative process

because the “risk of harm through disclosure is more self-evident and the potential for agency

overuse is attenuated.” Def. MSJ at 24 (quoting Energy Pol’y Advocs. v. U.S. Dep’t of State,

, at *7 (D.D.C. June 27, 2023)). Plaintiffs, for their part, rejoin that there is no

statutory basis for that distinction and that the “foreseeable harm provision applies with equal

force to all discretionary withholdings.” Pl. MSJ at 18. If the Government means to suggest that

disclosure of work product is ipso facto harmful, such that a generic recitation of interests the

17 privilege protects will discharge its obligations under FOIA, then Plaintiffs are certainly right to

object. See, e.g., Jud. Watch, Inc. v. DOJ,

, at *3–5 (D.D.C. Sept. 24, 2019)

(finding asserted harms too generic to justify withholding based on work-product privilege). If,

however, the Government means that the Court’s review of whatever harm an agency articulates

with respect to the deliberative-process privilege will be comparatively more exacting, the

argument is sound given Congress’s focus on the overuse of that privilege, see H.R. Rep. No.

114-391, at 10, which our Circuit and other courts in this district have repeatedly acknowledged.

E.g., RCFP,

; Ctr. for Investigative Reporting v. U.S. Customs & Border Prot.,

, 104–05 (D.D.C. 2019). The Court thus proceeds with this latter understanding.

To establish that the burden to show harm is met, Justice relies on several averments in

the declaration of OIP’s Chief of Initial Request Staff, Douglas Hibbard — viz., that disclosing

the at-issue reports would reveal the investigating attorneys’ “mental impressions, conclusions,

opinions, or legal theories concerning anticipated or pending litigation,” and it would “‘hinder

the government’s ability to investigate’ future legal violations because Department ‘attorneys

would no longer feel free to pursue lines of questioning, [to explore] avenues of investigation, or

to memorialize important thoughts on potential litigation strategies for fear that the information

might be disclosed to the detriment of the Government’s current and future litigation positions.’”

Def. MSJ at 22, 25 (quoting Hibbard Decl., ¶ 37). Plaintiffs, meanwhile, assail these asserted

harms as being “generic,” “nebulous,” “boilerplate,” and “untethered to the contents of the

Durham Reports.” Pl. MSJ at 21 (citation omitted).

Although DOJ’s description of the relevant harm is hardly a paragon of specificity, our

Circuit has nevertheless upheld agency withholdings where the “very context and purpose” of

the sought-after documents “make the foreseeability of harm manifest.” RCFP,

.

18 Such is the case here, where the documents contain attorney impressions going to core legal

strategy rather than, for instance, discussion of ancillary procedural matters. The general content

of each report is scrupulously described in John Durham’s declaration, which was originally

prepared for the New York case. See ECF No. 25-4 at 31–40 (Durham Decl.). As he explains,

the three tape-destruction reports “memorialized [his team’s] analyses and thought processes

concerning whether to initiate any criminal prosecutions and [their] ultimate conclusion not to

file charges.” Id., ¶ 9. This entailed, among other things, “evaluating facts, statements and

testimony of witnesses, and other evidence[,] . . . [and] assess[ing] the admissibility of the

evidence in judicial proceedings.” Id., ¶ 10.

The two interim reports and the final report on the interrogation investigation “discussed

the strengths and weaknesses of the facts and evidence uncovered in the course of [Durham’s]

preliminary reviews, the potential applicability of various criminal statutes against that evidence,

and ultimately why no full criminal investigations should be pursued with the exception of” the

deaths of two detainees. Id., ¶ 14. The two supplemental reports “provided additional detail to

support” that recommendation, including “an in-depth recitation, analysis, and evaluation of the

facts and evidence uncovered in the course of [his] preliminary reviews,” “supporting legal and

factual justification . . . under the governing standards,” and an outline of “the key areas [his

team] would pursue in a full criminal investigation, as well as the potentially applicable criminal

statutes.” Id., ¶ 15. These materials were prepared for the Attorney General, who was “the final

decisionmaker as to whether these full criminal investigations” would be pursued. Id.

The two declination reports, finally, “modeled the format of . . . [a] criminal prosecution

memorand[um].” Id., ¶ 18. They “memorialized [the team’s] analyses and thought processes

concerning whether to initiate any criminal prosecutions and [their] ultimate conclusion not to

19 file charges.” Id. More specifically, they “traced the path of [Durham’s] investigations in the

two detainee deaths[,] . . . analyzed the substantial volume of evidence gathered[,] . . . assessed

the admissibility of the evidence in judicial proceedings[,] . . . analyzed the type and nature of

criminal charges that could be brought against suspected wrongdoers, along with various

defenses” they could raise, “discussed what the evidence showed and did not show, and

evaluated previous investigations conducted by other entities.” Id.

Given that each report contains Department attorneys’ opinions on highly sensitive

issues, including the strengths and weaknesses of potential criminal charges and the weight of

evidence, it is obvious that harm would result from their wholesale disclosure. A lawyer — no

less a federal prosecutor — requires a “certain degree of privacy” to “sift what he considers to be

the relevant from the irrelevant facts, prepare his legal theories and plan his strategy.” Hickman

v. Taylor,

, 510–11 (1947). Were the records of those thoughts routinely made

public, “[i]nefficiency, unfairness and sharp practices would inevitably develop in the giving of

legal advice and in the preparation of cases for trial.”

. Because the Durham reports

primarily reflect such sifting and strategizing, it seems clear that these ills would follow if they

were all disclosed in full, notwithstanding the vagueness of Defendant’s representations on this

issue. See, e.g., Louise Trauma Ctr. LLC v. U.S. Dep’t of Homeland Sec.,

, at

*5–6 (D.D.C. Apr. 11, 2022) (assertion that disclosure of immigration trial attorney’s notes

would “chill or deter [agency] employees from engaging in candid and frank discussions” too

“boilerplate,” but “context and purpose” of notes make the harm “self-evident”) (cleaned up).

Resisting this conclusion, Plaintiffs raise a number of other relevant considerations that

they think counsel a different conclusion. First, they highlight that Durham’s were high-profile

investigations and note that DOJ has a recent history of publicly releasing special-counsel reports

20 in similar circumstances. See Pl. MSJ at 22–23 (citing as examples release of Kenneth Starr’s

1998 report on his investigation into President Bill Clinton, Robert Mueller’s reports on Russian

interference in the 2016 presidential election, and a recent report by Durham himself on potential

prosecutorial misconduct during the Mueller investigation); see also ECF No. 36 (Notice of

Suppl. Authority) (attaching DOJ letter explaining that public release earlier this year of Robert

K. Hur’s report on President Joseph Biden’s handling of classified documents was consistent

with Department policy). Because “future special prosecutors and counsels now understand that

their own reports could very well become public,” they reason, releasing Durham’s reports

would not chill prosecutors’ willingness to fully express and document their work in future

investigations. See Pl. MSJ at 23.

Durham, however, conducted the investigations in his capacity as the Acting United

States Attorney for the Eastern District of Virginia — not as a “special counsel” within the

meaning of

, et seq. — which, as Justice explains, places him “among the far

more common pool of career Department attorneys appointed to specially investigate and, if

necessary, prosecute a sensitive matter.” Def. Reply & Opp. at 14; see also Hibbard Decl., ¶ 4.

Even if the public disclosure of special-counsel reports is routine (rare though such appointments

are), there is little reason to believe that other career Department officials would, for that reason,

expect the records of their own sensitive investigations to be released to the public. See, e.g.,

Durham Decl., ¶ 19 (“I expected that these reports would remain confidential.”).

Plaintiffs also contend that there can be no foreseeable harm to the extent that

information contained in the reports is already public. See Pl. MSJ at 24. But even if public

records contain some information about what the CIA did or did not do — which Plaintiffs

reasonably infer the Durham reports would likely also contain — there has been no official

21 confirmation by Justice that the information is true (or not true), or of the role that specific

information may have played in its investigative and prosecutorial decisions. Indeed, this

Circuit’s public-domain caselaw includes an official-disclosure requirement because such

confirmation can be informative in itself. See Knight First Amend. Inst.,

(“[A]

statement made by one in a position to know is given unique meaning and weight. While

information from outside an agency may be viewed as possibly erroneous, confirmation by the

agency itself would remove any lingering doubts.”) (cleaned up). To accept Plaintiffs’ logic

would be to circumvent the carefully defined boundaries of that doctrine.

Plaintiffs’ last consideration is slightly more persuasive — though it, too, ultimately

provides no reason to release the withheld reports in their entirety. They cite DOJ’s 1994

Guidance implementing its then-self-imposed foreseeable-harm requirement, believing that it

favors disclosure here. See Pl. MSJ at 19–20; see also ECF No. 30-38 (1994 OIP Guidance).

The Guidance explains that the work-product privilege, as implemented under Federal Rule of

Civil Procedure 26(b)(3), “establishes a ‘two-tiered’ structure of protection: It provides that an

attorney’s ‘mental impressions, conclusions, opinions or legal theories’ are privileged

‘absolutely’ and never have to be disclosed in civil discovery, but it affords everything else

prepared in anticipation of litigation only a ‘qualified’ privilege that can be overcome with a

showing of need.” 1994 OIP Guidance at 5. While Exemption 5 applies to work product in its

entirety, regardless of the tier in which it falls, there will often be “little need for an agency to

assert the work-product privilege” for information in the “fact-laden tier of the privilege” if it has

“no inherent sensitivity.”

at 5–6. The Guidance then enumerates four factors to consider in

assessing work-product-related harm: (1) time — whether “the case [is] still pending” or

“sufficiently past that the sensitivity . . . has faded”; (2) connection to litigation — “[i]f the case

22 itself is at an end,” whether the information “truly remain[s] sensitive due to its connection to

similar or recurring litigation”; (3) substantive scope — whether the document constitutes

“attorney thought process” information within the privilege’s “first tier” or “pure facts” within its

“other tier”; and (4) inherent sensitivity.

at 6–7.

Of course, the FOIA Improvement Act does not obligate DOJ to “mechanically recite”

these foreseeable-harm factors when explaining its withholdings — and they certainly do not

bind courts. See Rosenberg v. U.S. Dep’t of Def.,

, 260 n.7 (D.D.C. 2020)

(finding “no basis in FOIA’s test or case law” for such a recitation). But they carry some

persuasive weight in this case because they come from Defendant itself, and they implement a

DOJ policy that Congress expressly adopted. See S. Rep. No. 114-4, at 3 (recognizing that Act

codified and clarified existing policy).

Whether DOJ’s withholding passes muster under this rubric is by no means obvious. On

one hand, it is difficult to ignore the fact that there is no pending litigation or prospect of such

arising from Durham’s investigation, which has been closed for over a decade. Cf. Friends of

the River v. U.S. Army Corps of Engineers,

, at *8 (D.D.C. June 21, 2023)

(foreseeable-harm requirement met because “[defendant’s] being ordered to disclose materials it

withheld under the work-product privilege would force the agency to divulge to [plaintiff] (and

to the public) its preparation for anticipated litigation with [plaintiff]”). On the other hand,

regardless of how much time has passed or whether a case is pending, the reports are inherently

sensitive because of their content and purpose — which includes considering legal theories,

weighing evidence, and reaching charging decisions, all of which are particularly important

components of a prosecutor’s preindictment decisionmaking process.

23 The Court thus stands by its conclusion that the foreseeable harm in releasing the reports

wholesale is obvious, a conclusion bolstered by its own in camera review. Given the absence of

litigation and passage of time, however, it also finds that there would be no foreseeable harm —

at least based on the work-product privilege — in releasing any “purely factual” segments within

the reports that reveal little about investigators’ mental processes. The question now is whether

any such segment exists that can be segregated and released to the public.

D. Segregability

Under FOIA, an agency must release “[a]ny reasonably segregable portion of a record.”

(b). Congress re-emphasized this point in the FOIA Improvement Act, which —

in addition to making foreseeable harm a precondition for withholding — requires agencies to

“consider whether partial disclosure of information is possible whenever the agency determines

that a full disclosure of a requested record is not possible” and to “take reasonable steps

necessary to segregate and release nonexempt information.”

§ 552(a)(8)(A)(ii)(I)–(II).

Defendant explains that it “carefully reviewed each [report] to determine whether any

information could be segregated for release” and determined that none could. See Def. MSJ at

31 (quoting Hibbard Decl., ¶ 44). Its sole rationale with respect to the work-product privilege,

however, is that “all ten reports at issue in this case are covered by” it, and where a document is

“fully protected as work product[,] . . . segregability is not required.” Id. at 31–32. The

Government, in other words, believes that it was not obligated to review whether the harms it

foresees from disclosure would be attenuated with respect to any particular segment of the

withheld reports. While this position may have been sound before the FOIA Improvement Act,

see Citizens for Responsibility & Ethics in Washington v. DOJ,

(D.D.C.

2014), the D.C. Circuit has recently made clear that “[t]he segregability requirement . . . extends

24 to both steps of FOIA’s sequential inquiry.” Leopold v. DOJ,

(D.C. Cir. 2024).

“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.”

The Government having conducted its segregability review on a faulty legal premise and

having provided no detail as to how the reports are structured, the Court is left to assess on its

own whether any part of any report is segregable as “purely factual.” Although this is not the

preferable route, in the interest of efficiency (and recognizing that Leopold postdates the briefing

on the present Motions), the Court will not require the Government to file further declarations

but will instead conduct the segregability review itself.

Having done so in camera, the Court finds that the facts and investigators’ mental

impressions are inextricably intertwined throughout each of the disputed reports such that

nothing is releasable. The reports outline thorough and exhaustive investigations, based on a

significant number of witness interviews, aimed at determining what happened and whom to

believe. Each report and attachment is an analytical document where lawyers are discussing

evidence, evaluating the credibility of witnesses, finding facts by comparing their testimony, and

making legal judgments about the strength of prosecution for certain crimes. Even the

discussion of facts therein reflects the kind of judgment and deliberation within the core of the

work-product privilege’s protective sweep.

* * *

In short, Justice has met its burden to show that reasonably foreseeable harm to an

interest protected by the work-product privilege under Exemption 5 would result if any portion

of the reports were released. Even though “purely factual” information devoid of an attorney’s

25 mental impressions would be suitable for public disclosure, the Court is unable to identify a

segregable portion of any report meeting that description. As a result, only the 302s remain at

issue in this litigation. Once the Government has fully processed them, any further dispute can

be addressed on a subsequent motion for summary judgment.

IV. Conclusion

For the foregoing reasons, the Court will grant Defendant’s (now partial) Motion for

Summary Judgment and deny Plaintiffs’. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: June 7, 2024

26