The nomination of Solicitor General Elena Kagan to the Supreme Court prompted document requests to the Department of Justice (DOJ). The D.C. District Court recently upheld a DOJ determination that records from the office of the Solicitor General were exempt from disclosure under the Freedom of Information Act (FOIA). The records either were privileged or were not “agency records” subject to disclosure. Media Research Center v. U.S. Department of Justice and Judicial Watch v. U.S. Department of Justice, 2011 WL 4852224 (Oct. 13, 2011).
In response to FOIA requests, DOJ began an electronic search of its files encompassing the dates of Justice Kagan’s tenure as Solicitor General. The search identified 1400 pages. After review, DOJ concluded that 86 pages were responsive to the requests under FOIA.
DOJ released 45 of the 86 pages, and withheld 41 pages under two theories: first, that they were not “agency records,” and second, that they fell under the “work product privilege” (exemption 5 to FOIA). DOJ released a log (often referred to as a “Vaughn Index”) providing its reasoning for every withheld or redacted document.