Secrecy: FOIA

Messages Between U.S. Agencies and Foreign Governments Not Protected by FOIA Exemption 5, Sixth Circuit Rules

By Michael Linhorst
Tuesday, March 28, 2017, 3:00 PM

The Freedom of Information Act’s Exemption 5 does not shield communications between U.S. agencies and foreign government agencies, the Sixth Circuit Court of Appeals held on Friday in Lucaj v. FBI.

Generally, FOIA gives the public a right to obtain documents held by federal agencies, although it includes several exemptions that let those agencies shield certain documents from disclosure. Exemption 5 allows the government to withhold “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” The FBI argued the exemption covers two requests for assistance sent from the Justice Department to foreign organizations—the Central Authority of Austria and an unnamed country. The requests related to an FBI investigation of a man suspected of aiding attacks intended to influence elections in Montenegro.

But the Sixth Circuit, in an opinion written by Judge Karen Nelson Moore, said Exemption 5 does not protect the documents.

The court focused on the language of the exemption. The “inter” of “inter-agency memorandums” requires that both the sender and receiver of a document are agencies, the court determined. A memo sent from one agency to a non-agency is thus not an inter-agency document.

Can foreign government entities be agencies? Certainly not, the court concluded. FOIA itself defines “agency” as “each authority of the Government of the United States.” So, to be an “inter-agency memorandum,” a document “must have been sent from an authority of the Government of the United States to an authority of the Government of the United States.”

The court also rejected the government’s argument that the requests at issue are covered by the “common-interest doctrine.” The doctrine comes from a series of Fourth Circuit cases that held Exemption 5 “permits parties whose legal interests coincide to share privileged materials with one another in order to more effectively prosecute or defend their claims.”

Although agencies may sometimes need to share confidential information with foreign organizations, the court concluded that Exemption 5 simply does not reach that far:

[H]owever important it may be for the [Justice Department’s Office of International Affairs] to have frank communications with the Central Authority of Austria and an unnamed foreign government, however common the interest between the OIA and its international partners, the Central Authority of Austria and an unnamed foreign government are not, so far as Congress has defined the term, agencies.

The defendant in the case is Doda Lucaj. The FBI suspected Lucaj was involved in “attacks made by an ethnic Albanian group against facilities in Montenegro in hopes of influencing Montenegrin elections.”

In 2006, he was indicted by Montenegro and arrested in Vienna. Lucaj claims his arrest was illegal and the United States was improperly involved. To gather more information, he sent a FOIA request to the FBI seeking three things: (1) any information related to any investigation, or his arrest, detention, or interrogation; (2) any documents related to those things; and (3) the names of any agents who witnessed any interview or interrogation.

The FBI found 1,922 pages of potentially responsive documents, including the two requests for assistance.

Although the court decided the requests were not covered under Exemption 5, it emphasized that the “case and the policy questions it raises are not over.” It suggested Exemptions 3, 6 or 7 might apply, or that Congress might step in to protect communications with foreign government agencies.