The courts in Shapiro v. U.S. Dep’t of Justice, No. 12-1883 (D.D.C. Sept. 18, 2013), and Judicial Watch, Inc. v. CFPB, No. 12-0931 (D.D.C. Sept. 30, 2013), addressed the scope of the attorney-client privilege and work product protection exemptions to the government’s obligations to produce information requested pursuant to FOIA.
In Shapiro, the plaintiff sought all documents in a “brief bank” created by the Department of Justice for its lawyers’ reference in FOIA cases. The brief bank included actual briefs or excerpts of briefs that had been filed by the government in prior FOIA cases across the country, as well as objective summaries of the briefs, and some subjective information about the importance of the various briefs, which had been prepared by one or more attorneys in the DOJ. The court rejected the government’s assertions that the documents were intra-agency or inter-agency memoranda or that they were protected work product. The briefs themselves were already a matter of public record, so placing them into an intranet platform did not transform the documents into intra-agency or inter-agency documents. The contents of the brief bank were not work product, because (1) the brief bank was prepared not for any particular anticipated litigation, but because the DOJ had an on-going general concern regarding future FOIA litigation; and (2) neither the objective description of public documents or case law nor the selection of briefs for the bank revealed the mental impressions or opinions of counsel.
In Judicial Watch, the court held that communications prepared by the CFPB surrounding the President’s recess appointment of Richard Corday as director of the CFPB were protected work product. The CFPB reasonably anticipated that specific litigation would be brought to challenge the appointment, and therefore the emails satisfied the requirement of the work product doctrine that materials be prepared in anticipation of “some articulable claim that is likely to lead to litigation.”