The Blue Book And Reasonable Segregation

The United States Court of Appeals has revised and reissued an opinion originally filed on July 19

The National Association of Criminal Defense Lawyers submitted a request under the Freedom of Information Act to obtain an internal Department of Justice publication known as the Federal Criminal Discovery Blue Book. The Blue Book is a manual created by the Department to guide federal prosecutors in the practice of discovery in criminal prosecutions. It 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.

The Department refused to disclose the Blue Book, invoking the Freedom of Information Act’s Exemption 5, which exempts from disclosure certain agency records that would be privileged from discovery in a lawsuit with the agency. The Department maintained that the Blue Book fell within the attorney work-product privilege, and therefore Exemption 5, because it was prepared by (and for) attorneys in anticipation of litigation. The district court agreed that the Blue Book is privileged attorney work product and thus is exempt from disclosure. We likewise conclude that the Blue Book consists of exempt attorney work product, but we remand to the district court for an assessment of whether the Blue Book also contains non-exempt policy statements amenable to reasonable segregation from the privileged work product.

From today’s order

In light of the government’s submission, we think it appropriate to assess whether the Blue Book contains non-exempt statement of policy that are reasonably segregable for the protected attorney work product and therefore should be disclosed. Because the district court did not consider whether the Blue Book contains reasonably segregable statements of the government’s discovery policy, we remand for the court to conduct that analysis in the first instance. Such an analysis, we have explained, does not call for parsing the Blue Book “line-by-line” or segregating material “dispersed throughout the document.” Mead Data, 566 F.2d at 261. Instead, the emphasis is on segregation of non-exempt material found in “logically divisible sections.” Id. at 261 n.54. If the district court concludes that the Blue Book contains non-exempt and reasonably segregable statements of the government’s discovery policy, the court could then consider whether Exemption 7(E) of FOIA would protect any of that material from disclosure. The district court to this point has had no occasion to examine the government’s argument that Exemption 7(E) shields the Blue Book from disclosure.”…

(Mike Frisch)