Cause of Action sent 20 FOIA requests to federal agencies regarding the White House’s review of FOIA and other document requests. Four federal agencies produced documents that were included in our report released for Sunshine Week 2014.
The U.S. Department of Agriculture (USDA) received our FOIA request on November 26, 2013 and sent us a response letter on February 26, 2014. The documents produced by USDA used heavy (b)(5) redactions to the point where no substantive information was included (email subject headings were also redacted). Compared to 3 other agencies that produced documents, USDA’s was the only agency that failed to provide any substantive information. In USDA’s response letter, it stated it made the redactions pursuant to the attorney-client privilege.
One such privilege is the attorney-client privilege, which protects confidential communications between an attorney and client relating to a legal matter for which the client has sought professional advice. This privilege also encompasses any opinions the attorney gives to the client based upon those facts, as well as communications between attorneys that reflect client-supplied information. We have withheld information from the responsive records, including confidential communications between OGC and the Office of the White House Counsel, internal, confidential communications between OGC attorneys and client agencies, and other records reflecting the advice of counsel with regard to legal matters.
As we note in our appeal:
The privilege properly applies only to communications created in the context of an actual attorney-client relationship, and not simply whenever an agency communicates with another entity composed of lawyers. Indeed, the privilege “must be ‘strictly confined within the narrowest possible limits consistent with the logic of its principle.”‘ Quite simply, the White House Counsel’s Office does not provide legal services to USDA (or to other agencies), but rather provides legal assistance to the President and the White House staff in their official capacities. USDA has not identified any facts or cited any legal authority that suggests that an attorney-client relationship exists between the agency and the White House Counsel’s Office. (emphasis added)
Documents:
November 26, 2013 FOIA Request
February 26, 2014 USDA Production Letter
March 25, 2014 USDA Appeal WH Equities by CauseOfAction
February 27, 2014 USDA Production WH Equities by CauseOfAction
