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Rockwell Int'l Corp. v. Department of Justice

ELR Citation: 31 ELR 20416
Nos. No. 99-5218, 235 F.3d 598/(D.C. Cir., 01/05/2001)

The court upholds a district court decision rejecting a former nuclear plant operator's request to release a series of intraagency and interagency documents that were cited and referred to in an internal U.S. Department of Justice (DOJ) report defending its prosecution of the operator for environmental crimes allegedly committed at the Rocky Flats nuclear facility in Colorado. The public version of the report, which was issued after a congressional subcommittee criticized DOJ for its "extreme conservatism" in pursuing the Rocky Flats prosecution, excluded documents that were attached to the report sent to Congress. The operator sought to compel DOJ's disclosure of the documents, arguing that the documents were incorporated by reference into the report. The court first holds, however, that the report sets forth the conclusions of a voluntarily undertaken internal agency investigation, not a conclusion about agency action in an adversarial dispute with another party. Incorporation, therefore, is irrelevant. The court next holds that DOJ did not waive its Freedom of Information Act (FOIA) protection by sending the documents to Congress. The documents were not created specifically to assist Congress, but rather were created as part of DOJ's deliberative process—precisely the kind of interagency and intraagency memoranda protected by FOIA. Moreover, DOJ gave the documents to Congress only after Congress expressly agreed not to make them public. The court further holds that DOJ did not waive protection for the documents under the attorney work-product privilege. None of DOJ's actions was inconsistent with keeping the documents secret, nor did it make testimonial use of the attachments by relying on them to put to rest criticisms of the Rocky Flats prosecution. It did not use the documents in an adversary proceeding, but instead used them in a dispute with a co-equal branch of government and in the ensuing struggle for public opinion.

Counsel for Appellant
John T. Rich
Shea & Gardner
1800 Massachusetts Ave. NW, Washington DC 20036
(202) 828-2000

Counsel for Appellee
Michael C. Johnson, Ass't U.S. Attorney
U.S. Attorney's Office
5806 Judiciary Center Bldg.
555 4th St. NW, Washington DC 20001
(202) 514-7566

Before Williams and Randolph, JJ.