Opinion

William Jordan v. United States Department of Justice

  • 591 F.2d 753
  • 192 U.S. App. D.C. 144
Court
Court of Appeals for the D.C. Circuit
Filed
Oct 31, 1978
Status
Published
Author
Bazelon
On the bench
Wright, Bazelon, McGowan, Tamm, Leven-Thal, Robinson, MacKinnon, Robb, Wilkey, Leventhal
Cited by
407 cases
Authority
More cited than 25.1%

Overruled in part, on other grounds by Michael Alan Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (1981)

stating “[t]he work-product rule does not extend to every written document generated by an attorney; it does not shield from disclosure everything that a lawyer does. Its purpose is more narrow, its reach more modest.... [T]he purpose of the privilege is to encourage effective legal representation within the framework of the adversary system by removing counsel’s fears that his thoughts and information will be invaded by his adversary. In other words, the privilege focuses on the integrity of the adversary process itself____ This focus on the integrity of the trial process is reflected in the specific limitation of the privilege to materials ‘prepared in anticipation of litigation or for trial.’ ”

How later courts described this case

  • stating “[t]he work-product rule does not extend to every written document generated by an attorney; it does not shield from disclosure everything that a lawyer does. Its purpose is more narrow, its reach more modest.... [T]he purpose of the privilege is to encourage effective legal representation within the framework of the adversary system by removing counsel’s fears that his thoughts and information will be invaded by his adversary. In other words, the privilege focuses on the integrity of the adversary process itself____ This focus on the integrity of the trial process is reflected in the specific limitation of the privilege to materials ‘prepared in anticipation of litigation or for trial.’ ”
  • finding that documents reflecting an “agency’s group thinking in the process of working out its policy and determining what its law shall be” are exempt under FOIA Exemption 5
  • stating that the deliberative process privilege applies to “communications ... that are actually antecedent to the adoption of an agency policy”
  • distinguishing, in dicta, between “policy guidelines and manuals of general applicability, established prior to and independently of a prosecutorial decision in any particular case” and “documents reflecting the reasons for prosecution or non-prosecution in particular cases or explaining such decisions”

Written by the judges who cited it.

Later courts went against this

  • Overruled in part, on other grounds by Michael Alan Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (1981)

    591 F.2d 753, 772 (1978) (en banc), overruled on other grounds by Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1053
    Court of Appeals for the D.C. CircuitDec 16, 198143 citing opinionsother groundsin partRead it
  • Superseded by statute, as recognized in American Civil Liberties Union v. Federal Bureau of Investigation

    591 F.2d 753, 764 (D.C. Cir. - 13 - 1-23-1863 1978), superseded in part by statute as recognized in American Civil Liberties Union of Northern California v. Federal Bureau of Investigation, 881 F.3d 776
    Court of Appeals for the Ninth CircuitFeb 1, 20182 citing opinionsby statutein partRead it

The opinion

BAZELON, Circuit Judge,

concurring:

I concur in the court’s opinion, and write separately only to stress what I view as an important feature of this decision: hereafter the settled standards which guide the United States Attorney’s discretion will be available to the Bench, Bar and the public at large. One of the principal purposes of the Freedom of Information Act is to eliminate “secret law.” 1 The settled practices of the government, in deciding which cases to prosecute and which eases to divert from the courts are, if not codified “law,” at least as important as any statute to the individual charged with a crime.

[T]he standards which guide prosecutors in the exercise of their discretion are as much a part of the law as the rules applied in court. Indeed, the impact of such standards is more decisive for many defendants than that of any other legal rules.

Scott v. United States, 136 U.S.App.D.C. 377 , 390, 419 F.2d 264, 277 (1969).

The public availability of these general policy manuals will serve fundamental interests in the criminal justice system by helping to assure that the exercise of prosecutorial discretion is even-handed, rational, and consonant with statutory intent, which are touchstones for the proper exercise of such discretion. See, e. g., Hutcherson v. United States, 120 U.S.App.D.C. 274 , 284-287, 345 F.2d 964, 972-977 (1965) (Bazelon, C. J., concurring and dissenting), cert. denied, 382 U.S. 894 , 86 S.Ct. 188 , 15 L.Ed.2d 151 (1965). 2 Since prosecutors’ discretion may be all but unreviewable in individual *782 cases, it is all the more important that the public and the courts be informed of the general criteria which prosecutors apply in selecting which cases to prosecute and what charges to bring. 3

I find it appropriate that the Freedom of Information Act, which was designed to shed sunlight on the processes of government, should direct its illuminating rays on this vitally important aspect of the criminal process.

. N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132, 153 , 95 S.Ct. 1504 , 44 L.Ed.2d 29 (1975); Schwartz v. IRS, 167 U.S.App.D.C. 301, 303 , 511 F.2d 1303, 1305 (1975).

. Judge Leventhal has cogently identified one important reason for concluding that refusing to disclose these guidelines might lead to inequitable treatment of some defendants. See concurring op. at -- of 192 U.S.App.D.C., at 784 of 591 F.2d.

. The ABA has fully supported this view, recommending not only that prosecutors develop a statement of policies to guide discretion, but that these be disclosed to the public. “The public interest will be best served by having general policies, procedures and guidelines known to the bar and, indeed, to the courts.” ABA Standards Relating to the Prosecution Function (approved draft 1971) § 2.5 (commentary).

. 173 U.S.App.D.C. 187 , 523 F.2d 1136 (1975). The word “opinions” is used here to include both Judge Wilkey’s opinion for the panel, and Judge Leventhal’s concurring opinion. Both are cited with approval in Rose, Judge Wilkey’s at 425 U.S. 365 -66, 96 S.Ct. 1592 , and Judge Leventhal’s at 425 U.S. 370 n. 7, 96 S.Ct. 1592 .

. S.Rep.No.813, 89th Cong., 1st Sess. 8 (1965) U.S.Code Cong. & Admin.News 1966, p. 2418.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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