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.

Plaintiffs challenged: 1) the adequacy of the initial search; 2) the determination that the 41 pages were not “agency records;” 3) the claim of attorney work product on six redacted documents; and 4) the claim concerning the deliberative process privilege.

1. Adequacy of the Search. The Court concluded that DOJ’s search of its paper, electronic, and email files was adequate, and that plaintiffs’ conjecture that there should be additional records was insufficient to justify a different conclusion. See, Weisberg v. Department of Justice, 705 F.2d 1344 (D.C. Cir. 1983); Iturralde v. Comptroller of the Currency, 315 F.3d 311 (D.C. Cir. 2003) (agency’s search must be reasonably calculated to uncover all relevant documents, measured by the search methods and not by the results of the search).
    
2. Agency records. In rejecting the Plaintiffs request for the Solicitor General’s correspondence about her nomination to the Supreme Court, the D.C. Circuit Court found the correspondence “was not relied upon by the [Office of Solicitor General] in carrying out its business, but rather was used for a purely personal objective…the documents were personal, not attributable to the agency, and therefore were not “agency records.”
    
3. Exemption 5 to FOIA, and the “Work Product Privilege.” Exemption 5 to FOIA allows an agency to withhold records that would be privileged from discovery during litigation. This exemption incorporates the work product doctrine and the deliberative process privilege. Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001). Applying Exemption 5 and the attorney work product doctrine, the court rejected plaintiffs’ argument that a specific claim is necessary to invoke the doctrine. Instead, an objectively reasonable belief that litigation is a real possibility triggers the privilege. The Court did not reach the deliberative process question.

For reference to Washington’s PRA exemptions for attorney-client and other privileges that may give rise to exemptions from disclosure, see WA Court of Appeals Decision in Zink v. City of Mesa Has Many Public Records Act Lessons for Municipalities.
 

The U.S. Supreme Court is expected to hear arguments in the case in the spring and issue a decision by the end of June 2010.