In Judicial Watch’s FOIA dispute with the Department of Justice over Fast and Furious documents, there are some curious developments. The Department of Justice produced a so-called Vaughn index this week, which detailed the documents that had been withheld as exempt from disclosure under FOIA and explained, in brief detail, the basis for the withholding. This is standard operating procedure in FOIA litigation. What is hardly standard is that DOJ has withheld as exempt from disclosure maybe a dozen or so e-mails sent by Holder to his wife’s e-mail address. These documents are designated as exempt from disclosure under the “deliberative process” privilege, which protects the internal pre-decisional communications of the government. Thus, for instance, before an agency regulation is adopted, the privilege protects from disclosure all the internal communications of agency staff about the content of the regulation.
So how on earth could a communication between Eric Holder and his wife, a non-governmental physician, be exempt from disclosure? There are a couple of possible explanations. First, the most innocuous one, is that Holder simply used his wife’s e-mail address to e-mail some document from his work address to himself at some other location (home, vacation, etc.). This would not be an earthshattering invocation of the exemption, although it might raise questions of whether Holder has waived the exemption by sharing privileged communications outside the government. Looking at the index, there is some reason to suspect that this is what occurred. For instance, the government withholds all or part of an e-mail from Holder addressed to his wife and his mother on privacy grounds (to protect personal information, such as personal e-mail addresses). That email (entry 15332 on the index) appears from the description to just be forwarding PDFs of letters from Congress. Holder may have simply forwarded them to family e-mail addresses to print for himself. While you can question whether Holder is careless in his handling of federal documents, there is nothing particularly controversial about the claim of a FOIA exemption here if this turns out to be the case.
Delving deeper into the realm of conjecture, it is possible, though less likely, that the government is asserting some sort of spousal communications privilege as an overlay to the deliberative process privilege. Normally, sharing privileged documents with persons unprotected by the privilege waives the privilege. But the government might be contending that there is no waiver here because confidential communications between spouses are protected (in many states) from disclosure in civil litigation and thus are exempt under FOIA. This would be a novel FOIA claim, to be sure, and would likely be met with some skepticism by a federal judge. And given that the privilege logs do not cite the spousal communications privilege, it seems unlikely that the government has ventured down this uncertain road.
The final explanation is that this is simply a baseless claim of deliberative-process exemption. But the career professional DOJ lawyers handling this case (who I once had the privilege of supervising during the Bush administration) are not likely to go for such a ruse. Yes, they ultimately answer to the attorney general, but they have their own professional obligations to the courts and are not likely to risk those for a silly and baseless claim to protect the outgoing AG.
The government will have an opportunity to explain itself shortly, when it submits an affidavit substantiating its exemption claims. While there are certainly reasons to raise an eyebrow or two at these particular assertions of the privilege, it may turn out to be much ado about nothing.