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DC Circuit Agrees that U.S. Attorney’s Discovery Handbook is Exempt from FOIA

by Derek Gilna

In a setback for the National Association of Criminal Defense Attorneys (NACDL), the Court of Appeals for the DC Circuit declined to overturn a district court’s judgment that found the U.S. Attorney’s discovery handbook, also known as the “Blue Book,” was not subject to disclosure under the Freedom of Information Act (FOIA).

According to the appellate opinion, the Blue Book “contains information and advice for prosecutors about conducting discovery in their cases, including guidance about the government’s various obligations to provide discovery to defendants.”

NACDL filed a public records request for a copy of the Blue Book but the U.S. Department of Justice (DOJ) refused to comply, citing Exemption 5 of the FOIA statute, which exempts from disclosure records that would be privileged from normal litigation discovery, claiming the handbook was attorney work-product. Both the district court and Court of Appeals agreed.

The DOJ had argued that “the Blue Book is not a ‘neutral analysis of the law’ but rather ‘contain[s] confidential legal analysis and strategies to support the Government’s investigations and prosecutions.’ ... In contrast with publicly-available documents such as the United States Attorneys’ Manual, which set out statements of agency policy, the Blue Book is an internal manual containing litigation strategies.”

The DOJ also stated the discovery handbook “essentially provide[s] a road map to the strategies federal prosecutors employ in criminal cases.... 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.”

In its July 19, 2016 decision, the DC Circuit was not persuaded by NACDL’s arguments that the Blue Book “was created in contemplation of litigation generally,” was not privileged attorney work-product because it advances an educational rather than adversarial function, was more in the nature of a treatise, and should be disclosable at least in part. See: NACDL v. U.S. DOJ Exec. Office for United States Attys., 844 F.3d 246 (D.C. Cir. 2016), rehearing en banc denied. 

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Related legal case

NACDL v. U.S. DOJ Exec. Office for United States Attys.