Court Shields Release of Feds’ Prosecution Manual

     (CN) — Criminal defense lawyers cannot crack open the Justice Department’s how-to manual on navigating criminal prosecution discovery, the D.C. Circuit ruled.
     The National Association of Criminal Defense Lawyers sent the U.S. Justice Department a Freedom of Information Act, or FOIA, request seeking disclosure of the Federal Criminal Discovery Blue Book in December 2012.
     The group says the manual gives federal prosecutors advice on “how to handle different scenarios and problems” in discovery in criminal prosecutions.
     Susan Gerson, the Executive Office for U.S. Attorneys’ assistant director in the FOIA/Privacy Act staff, determined in 2013 that the manual should be withheld in full.
     The agency invoked FOIA Exemption 5, which shields from disclosure certain agency records that would be privileged from discovery in a lawsuit with the agency.
     An unsuccessful appeal led the lawyers association to file suit in Washington, D.C. Federal Court.
     A federal judge ultimately awarded the Justice Department summary judgment in 2014, agreeing that the entire book is protected as attorney work product.
     The lawyers association again appealed, but the D.C. Circuit affirmed the lower court’s ruling Tuesday.
     The Justice Department “contends that disclosure would afford anyone who wanted to read the Blue Book (including opposing counsel) ‘unprecedented insight into the thought processes of federal prosecutors,'” Judge Sri Srinivasan wrote for a three-judge panel. “Disclosure thus would ‘undermine the criminal trial process by revealing the internal legal decision-making, strategies, procedures, and opinions critical to the department’s handling of federal prosecutions.'” (Parentheses in original.)
     Release of the manual would also “‘severely hamper the adversarial process[,] as DOJ attorneys would no longer feel free to memorialize critical thoughts on litigation strategies for fear that the information might be disclosed to their adversaries to the detriment [of] the government’s current and future litigating positions,'” according to the ruling.
     “Taking into account the nature, content, and function of the Blue Book as described in DOJ’s affidavits, we believe it ‘can fairly be said to have been prepared . . . because of the prospect of litigation,'” Srinivasan wrote. “Our in camera review of the Blue Book confirms that the affidavits accurately describe the book and its contents. The book therefore qualifies for the work-product privilege.”
     The D.C. Circuit tossed aside the lawyers’ claim that the manual falls outside that privilege because it aims to advance a nonadversarial function — the education and training of prosecutors.
     “To be sure, the Blue Book contains certain information—such as ‘compilations of cases,’—that may come with a seeming air of neutrality if considered in strict isolation,” Srinivasan wrote. “But disclosure of the publicly available information a lawyer has decided to include in a litigation guide—such as citations of (or specific quotations from) particular judicial decisions and other legal sources—would tend to reveal the lawyer’s thoughts about which authorities are important and for which purposes.” (Parentheses in original.)
     The judge noted that the manual “does not include lists of cases in a vacuum. It instead ‘offers compilations of cases that prosecutors can use to support different arguments’ in litigation as well as ‘[c]ases illustrating potential pitfalls that prosecutors should avoid’ when conducting discovery. That sort of information squarely implicates the work-product privilege.”
     In a separate concurring opinion, Judge David Sentelle wrote, “I join the judgment of the majority, not because I want to, but because I have to,” saying he is “compelled to do so by precedent.”
     “It is often said that justice must not only be done, it must be seen to be done. Likewise, the conduct with the U.S. Attorney must not only be above board, it must be seen to be above board. If the people cannot see it at all, then they cannot see it to be appropriate, or more is the pity, to be inappropriate,” Sentelle wrote. “I hope that we shall…someday see the day when the people can see the operations of their Department of Justice.”
     One of the lawyers association’s attorneys, Kerri Ruttenberg with Jones Day in D.C., said they are reviewing the decision.
     Justice Department spokeswoman Nicole Navas, and John Cline in San Francisco, representing amicus curiae supporting the lawyers association, the American Civil Liberties Union, declined to comment on the ruling.
     Attorneys for the other amici curiae supporting the lawyers association did not return requests for comment Friday. They are Jason Burge, Alysson Mills, and Jesse Stewart with Fishman Haygood in New Orleans for 63 law professors; and Timothy O’Toole and Addy Schmitt with Miller & Chevalier in D.C., representing the Constitution Project and the Innocence Project.

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