17‐2066‐cv The New York Times Company and Charlie Savage v. United States Department of Justice UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _____________________ AUGUST TERM 2018 (ARGUED: DECEMBER 13, 2018 DECIDED: SEPTEMBER 27, 2019) No. 17‐2066 _____________________ THE NEW YORK TIMES COMPANY AND CHARLIE SAVAGE Plaintiffs‐Appellee‐Cross‐Appellants, ‐v.‐ UNITED STATES DEPARTMENT OF JUSTICE, Defendant‐Appellant‐Cross‐Appellee. 1 Before: JACOBS and CALABRESI, Circuit Judges, and RAKOFF, District Judge.1 _______________________ At issue in this case is whether a series of memoranda and accompanying exhibits prepared by a U.S. Attorney acting at the direction of then‐Attorney General Eric Holder are protected from disclosure under Exemption 5 of the Freedom of Information Act. The district court (Oetken, J.) held that, because the memoranda were “expressly adopted” by Holder, Exemption 5 had been overcome, but a subsequent decision of this Court, American Civil Liberties Union v. National Security Agency, 925 F.3d 576 (2d Cir. 2019), has now clarified that the “express adoption” exception to Exemption 5 does not apply in the instant context. This leaves the issue of waiver. The Court concludes that Mr. Holder’s public statements only waived the work product privilege with respect to one of the memoranda’s conclusions, so that only the portions of the memoranda and exhibits related to that conclusion must be disclosed. Accordingly, the judgment of the district court is hereby AFFIRMED IN PART and REVERSED IN PART. _______________________ APPEARING FOR APPELLANT: JEANNETTE A. VARGAS, Assistant U.S. Attorney United States Attorney’s Office for the Southern District of New York New York, NY APPEARING FOR APPELLEES: DAVID EDWARD MCCRAW The New York Times Company New York, NY 1 Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. 2 _______________________ RAKOFF, District Judge: Plaintiffs‐appellees The New York Times and reporter Charlie Savage (collectively “The Times”) seek access under the Freedom of Information Act (“FOIA”) to five internal memoranda of defendant‐appellant the Department of Justice (“DOJ”) and accompanying exhibits. These memoranda and exhibits detail DOJ’s legal reasoning and factual analysis in making the determinations, first, that it would formally investigate only two of more than one hundred alleged instances of abuse of detainees allegedly held overseas in the custody of the Central Intelligence Agency (“CIA”) and, subsequently, that it would not bring criminal charges in either of those two cases. DOJ argues, and the plaintiffs do not contest, that these memoranda and exhibits were attorney work product when drafted, which would generally shield them from disclosure under FOIA’s Exemption 5. Plaintiffs argue, however, that two public statements thereafter made by then‐Attorney General Eric Holder had the effect of (a) expressly adopting or incorporating by reference the contents and reasoning of the memoranda and exhibits or (b) waiving the work product protection under common law principles, in either case removing 3 them from Exemption 5 protection. The District Court granted, in relevant part, the Times’s motion for summary judgment, holding that Attorney General Holder’s public statements expressly adopted the memoranda by relying on their ...
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