Washington, DC — August 11, 2011
Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that a federal court rejected a claim of the attorney work product doctrine by the Department of Justice (DOJ) for documents prepared after the government dismissed its case against the New Black Panther Party for Self Defense on May 15, 2009, and ordered the agency to provide better justification for withholding those documents related to the aftermath of its decision to drop its complaint against several members of the New Black Panther Party who were accused of engaging in voter intimidation during the 2008 presidential campaign. The ruling came in a Freedom of Information Act (FOIA) lawsuit filed by Judicial Watch (Judicial Watch v. U.S. Department of Justice, No. 10-851(RBW)).
In his August 4, 2011, decision, U.S. District Judge Reggie B. Walton rejected the Obama Justice Department’s arguments that documents prepared after the government dismissed its case (against the New Black Panther Party on May 15, 2009) could be withheld under the “attorney work product privilege” exemption. Judge Walton explained:
Although an injunction remains in place in the New Black Panther Party case…the filing of the motion for voluntary dismissal largely marked the end of the litigation. As such, the documents prepared subsequent to that event were not prepared in contemplation of litigation and are thus outside the scope of the work-product privilege.
Because the case had essentially ended on May 15, 2009, Judge Walton found that “it is difficult to see how” the 24 documents created after May 15, 2009, “were prepared or obtained because of the prospect of litigation, which is the testing question the Court must answer in evaluating the DOJ’s work-product claim.” Although Judge Walton found that the DOJ improperly withheld the 24 documents under the attorney work product doctrine, Judge Walton concluded that the documents were properly withheld under the deliberative process privilege, an entirely discretionary claim of exemption.
Yet, Judge Walton also found that the DOJ failed to satisfy its burden of showing that the 24 documents may be withheld in their entirety. Under the deliberative process privilege, the DOJ may only withhold information that is “predecisional and deliberative.” Judge Walton explained:
As it stands now, the description of the DOJ’s segregation efforts is too general for the Court, and the plaintiff, to evaluate whether any factual material in these documents is ‘inextricably intertwined’ with the deliberative material and would thus permit the DOJ to withhold the documents in their entirety.
Therefore, Judge Walton provided the DOJ a second chance to satisfy its burden by submitting “a renewed motion for summary judgment accompanied by a declaration or other documentation that solely addresses the segregability issue.” If the DOJ fails to “provide adequate detail regarding why these documents cannot be segregated, the DOJ will be required to disclose the non-exempt portions to the plaintiff.”
DOJ’s renewed motion for summary judgment is due September 30, 2011. Judge Walton hopes to rule by February 3, 2012.
According to a Justice Department document previously produced to Judicial Watch, top political appointees at the DOJ were involved in the decision to dismiss its voting rights case against the New Black Panther Party, including Associate Attorney General Thomas Perrelli, the third highest ranking official at the Obama Justice Department. Attorney General Eric Holder also received “an update on a planned course of action in the NBPP” from Acting Assistant Attorney General Loretta King, dated May 12, 2009, just three days before the case was dismissed, according to a Vaughn index uncovered by Judicial Watch. A Vaughn index describes documents being withheld from disclosure under FOIA and the basis for the withholdings.
Previous documents uncovered by Judicial Watch, which include descriptions of internal DOJ email correspondence, directly contradict sworn testimony by Thomas Perez, Assistant Attorney General for the Civil Rights Division, who testified before the U.S. Commission on Civil Rights that no political leadership was involved in the decision.
“The Obama Justice Department is going to extraordinary lengths to make sure no more details emerge regarding the Black Panther scandal,” said Judicial Watch President Tom Fitton. “We already know the Obama administration’s claim that political appointees were not involved in this decision is patently false. And now Justice Department officials continue to fight tooth and nail to stonewall the release of additional information. What else do they have to hide? This new court ruling means we may pry loose some additional information on this voter intimidation scandal.”