Parts of Govt.'s Criminal Discovery Manual May Not Be Secret

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By Bernie Pazanowski

Parts of the government's internal criminal discovery handbook may be open for inspection by defense attorneys, the U.S. Court of Appeals for the District of Columbia Circuit said Dec. 20 ( N.A. of Criminal Def. Lawyers v. U.S. Dep’t of Justice Exec. Office for U.S. Attorneys , 2016 BL 422313, D.C. Cir., No. 15-5051, 12/20/16 ).

In a July ruling, the court held that the Department of Justice could keep the Federal Criminal Discovery Blue Book secret under Exemption 5 to the Freedom of Information Act, which permits the government to withhold FOIA-responsive documents that would be privileged in a civil litigation.

The FCD Blue Book is generally a privileged work product, but it may contain non-exempt policy statements that may be reasonably segregated, the court said in its order amending the earlier ruling.

The case was remanded to the district court to determine whether there are logically divisible sections of non-exempt material. If so, then it must consider whether they fall under FOIA Exemption 7(E), which applies to guidelines for law enforcement investigations or prosecutions that could be used to circumvent the law.

The per curiam amendment stemmed from the National Association of Criminal Defense Lawyers’ petition for panel rehearing, which the court denied.

Judges Sri Srinivasan, David B. Sentelle and Harry T. Edwards were on the panel.

Jones Day represented the NACDL. DOJ attorneys represented the government.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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