(4) An unsigned handwritten note on the back of the foregoing telegram is exempt pursuant to (b)(5) as attorney work product because it contains comments relating to the contents of the telegram and suggests a manner in which this information could be used in the prosecution. It is also predecisional in that it recommends other possible uses for the information contained in the telegram. D. AG/FIVE (item #4, FitzSimon Letter): The document consists of a two-page letter dated November 17, 1980, from the Attorney General to Mr. George Koelzer, Mr. Williams' attorney, and two attached memoranda. The two-page letter to Mr. Koelzer and one of the memoranda, dated October 28, 1980, are attached without excision as Exhibits G(1) and G(2), respectively. The remaining memorandum, dated November 10, 1980, from Criminal Division Deputy Assistant Attorney General Irvin Nathan to Ann Hoffman, Executive Assistant to the Attorney General, is withheld in its entirety on the basis of 5 U.S.C. 552(b)(S). This two-page predecisional memorandum sets forth an evaluation of a meeting held between Mr. Koelzer and representatives of the Criminal Division regarding whether or not to seek indictment of his client, Mr. Williams, and the Division's refutation of certain points raised by Mr. Koelzer at that meeting. It also sets forth recommendations and proposed responses pertaining to certain issues raised by Mr. Koelzer in his letter. E. AG/SIX (item #6, FitzSimon Letter): This document consists of a one-page cover letter dated January 9, 1981, from USA Robertson to the Attorney General and the Deputy Attorney General enclosing a letter and two memoranda. The second paragraph of this cover letter is exempt from disclosure pursuant to 5 u.s.c. 552(b)(5) as the information consists of Mr. Robertson's recommendation as to personnel to be excluded from internal DOJ review procedures of certain government employees. Disclosure of this information would make it unlikely that the Attorney General would receive candid opinions and recommendations, of this type from mid-level management personnel. The portion which is not exempt is attached as Exhibit H. The attachments to Mr. Robertson's letter have been referred as follows: F. Two-page letter dated January 9, 1981, from USA Robertson Seven-page memorandum dated January 6, 1981, from Fifteen-page memorandum dated December 17, 1980, from AG/SEVEN (item #7, FitzSimon Letter): This document consists of a three-page memorandum dated January 13, 1981, from Assistant Attorney General Heymann, Criminal Division, to the Attorney General with a two-page attachment of a memorandum dated January 9, 1981, from Messrs. Plaza and weir to four judges. The attachment was referred to the Executive Office for United States Attorneys for direct response to the requester. Mr. Heymann's memorandum is exempt in its entirety pursuant to 5 U.S.c. 552(b)(5). This material consists solely of Mr. Heymann's evaluation and analysis of the events and actions of the individuals involved in the Plaza/Weir dispute and sets forth his recommendations for proposed action by the Department. Additionally, paragraph three of page one and the last nine lines of page two of this memorandum are exempt pursuant to 5 v.s.c. 552(b)(6) as they contain allegations of possible unprofessional conduct on the part of certain Department of Justice employees. IV-12 G. AG/EIGHT (item #1, FitzSimon Letter): This two-page letter dated January 14, 1981, from Attorney General Civiletti to USA Robertson regarding their meeting of that date is exempt in its entirety pursuant to 5 U.S.C. 552(b)(5) as attorney work product. The letter sets forth to USA Robertson specific instructions pertaining to certain courses of action and procedures to be followed in the ABSCAM cases. These instructions constitute the Attorney General's determination of the strategies to be employed in developing certain pretrial procedures in these cases. Additionally, the first full paragraph of page two is exempt pursuant to 5 U.S.C. 552(b)(6) as it contains information exploring the possibility of seeking indictment in a related public integrity investigation. The individual whose privacy is being protected was never indicted. Furthermore, this paragraph is also exempt on the basis of 5 U.S.c. 552(b)(7) (C) is 'disclosure would lead to irreparable damage to the reputation of a public official who was never indicted. H. AG/NINE (item #10, FitzSimon Letter): A nine-page memorandum dated March 2, 1981, to Michael Shaheen, Office of Professional Responsibility, from Charles Renfrew, Special Assistant to the Attorney General, is exempt in its entirety pursuant to 5 U.S.c. 552(b)(5). (This document was not maintained or located in the files of the Office of the Attorney General; it did, however, surface in a search for records responsive to this request in the files of the Cffice of the Associate Attorney General.) This predecisional memorandum consists of Mr. Renfrew's candid analysis and evaluation of the actions of certain Department personnel relating to the ABSCAM prosecutions with his conclusions and recommendations included. Additionally, this document is exempt in its entirety on the basis of 5 U.S.C. 552(b)(6) as it discusses the perceived actions and motives of certain Department employees which, if disclosed, could subject those individuals to unfounded public attention, criticism and embarrassment. I. AAG/TEN (item #9, FitzSimon Letter): A three-page memorandum dated July 21, 1981, from Michael Shaheen, Office of Professional Responsibility, to Associate Attorney General Giuliani. The document is exempt in its entirety pursuant to 5 U.S.C. 552(b)(5). This predecisional memorandum consists of Mr. Shaheen's evaluation of the actions of certain Department personnel and relates collaterally to the ABSCAM prosecutions. It sets forth his recommendations and proposals with regard to the individuals involved. Additionally, this document is exempt in its entirety on the basis of 5 U.S.c. 552(b)(6) as it discusses the perceived actions and motives of certain Department employees which, if disclosed, could subject those individuals to unfounded public attention, criticism and embarrassment. I declare under penalty of perjury that the foregoing is true and correct. less, we do not believe that the government's evidence entitles it to summary judgment. [8] The Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.CL 385, 91 L.Ed 451 (1947) recognized that the work-product doctrine "protects from discovery materials prepared or collected by an attorney 'in the course of preparation for possible litigation." In re Grand Jury Investigation, 599 F.2d 1224, 1228 (3d Cir. 1979), quoting Hickman, 329 U.S. at 505, 67 S.CL at 390. The burden of demonstrating that a document is protected as work-product rests with the party asserting the doctrine. [9] Our reading of the affidavit leads us to conclude that the Department of Justice has failed to establish that the document was prepared by or at the direction of an attorney, that it was prepared in anticipation of litigation, or that the litigation with Conoco was still viable at the time this document was prepared. In fact, the best the affiant could say about the undated, unsigned, handwritten notes was that they "apparently contain the attorney's notes." Under these circumstances, summary judgment is inappropriate. The matter will therefore be remanded and the Department of Justice will have an opportunity to go forward on the merits of its requested exemption. On remand the district court will make findings of fact and conclusions of law on the work-product issue. The district court will, of course, have the option of examining the document in camera. Ferri v. Bell, 645 F.2d 1213, 1222 (3d Cir. 1981). B. Exemption 7(C) and (D) [10] Exemption 7(C) provides a safeguard against "unwarranted invasion[s] of personal privacy," while 7(D) protects "the identity of a confidential source" or "confidential information furnished only by the confidential source." The Department of Justice claims Exemption 7 for Document Nos. 5 and 7. As the district court properly observed, tradict the assertions of the Department of Jus ATTACHMENT B 46 [91] consultation with Amistant United States Attorney on type of consent order, nature of criminal offenam and plea bargaining |