2005-09-15 DOJ reply to Howard Dean

Text
From:
 * U.S. Department of Justice
 * Office of the Solicitor General
 * Washington, D.C. 20530
 * September 15, 2005

To:
 * Governor Howard Dean
 * Democratic National Committee
 * 430 South Capitol Street, SE
 * Washington, DC 20003

Dear Governor Dean,

This letter is in response to your request to this Office under the Freedom of Information Act (FOIA), received August 23, 2005, for all documents in the possession, custody, or control of this Office that were authored, in whole or in part, by John G. Roberts, Jr., during his tenure as Principal Deputy Solicitor General from 1989 to 1993, that refer or relate to 14 specified Supreme Court cases.

This Office does not maintain case files on individual cases after the Supreme Court has disposed of the case. The Office does, however, generally retain copies of the printed briefs (or typescript in forma pauperis briefs) filed with the Supreme Court. In some Supreme Court cases, moreover, the Solicitor General, the Acting Solicitor General (when the Solicitor General is either disqualified or unavailable), or a Deputy Solicitor General acting on Behalf of the Solicitor General (in situations in which that authority has effectively been delegated to the Deputy Solicitors General) will have approved the filing of a petition for a writ of certiorari or an amicus brief on behalf of the government in the Supreme Court. In such cases, written recommendations ordinarily are submitted to the Solicitor General concerning the matter to be decided by him. This Office does not maintain separate case files on those cases, but does maintain in binders copies of the recommendations that are submitted to the Solicitor General by an Assistant to the Solicitor General and the Deputy Solicitor General in such cases, along with a separate sheet signed by the Solicitor General (or a Deputy Solicitor General acting in his stead) that records his decision in the matter. Typically, the underlying recommendation by the Deputy Solicitor General takes the form of annotations on the typescript recommendation submitted by the Assistant to the Solicitor General.

Aside from the copies of briefs filed in the Supreme Court and the binders of confidential recommendations noted above, this Office has no official files specifically relating to the 14 cases identified in your request. Nonetheless, we have reviewed the briefs and confidential recommendations in our possession involving the 14 cases you identify, and have identified fewer than 30 documents containing approximately 630 pages that appear to be responsive to your request. Of those documents, approximately 20 documents containing approximately 620 responsive pages consist of briefs on the merits, certiorari petitions, amicus briefs on the merits and at the petition stage, reply briefs, and responses in opposition to petitions for certiorari in cases in which John Roberts was the Principal Deputy Solicitor General or the Acting Solicitor General. This Office has furnished to the Office of Public Affairs of the Department of Justice, to be made readily available to requesters, copies of all of those documents.

The decision of the Solicitor General (or of a Deputy Solicitor General acting in his stead) in a particular case traditionally has been disclosed to a member of the public upon request. Consistent with that practice, we have furnished to the Office of Public Affairs, for efficient access, computer printouts that disclose the decisions in all such cases in which Mr. Roberts was the Deputy Solicitor General responsible for the case or made the decision on the matter. By contrast, the underlying recommendations submitted to the Solicitor General by Assistants to the Solicitor General, but Deputy Solicitors General, and by other components of the government, have always been regarded as confidential, in order to protect the deliberative process that is critical to ensuring the integrity and soundness of the litigating positions taken on behalf of the United States in the Supreme Court and the lower courts. This Office over the years has consistently declined to make those underlying recommendations available to the public. Those documents are protected by the attorney-client, deliberative-process, and attorney work-product privileges, and, consistent with the Office's past practice, they are being withheld here under Exemption 5 of the FOIA. We have identified fewer than ten such recommendations in the cases specified in your request, containing fewer than ten responsive pages that are being withheld under Exemption 5.

Five attorneys who are now in the Solicitor General's Office were also in the Office when Mr. Roberts served. We asked those attorneys to review any files they may happen to have retained in their individual offices concerning the 14 cases identified in your request. Those attorneys identified approximately two documents that appear to be responsive to your request. Those documents contain approximately 55 responsive pages. All of those materials are confidential internal deliberative materials, and are protected by the attorney-client, deliberative-process, and attorney work-product privileges. They therefore are being withheld under Exemption 5 of the FOIA.

Four of the attorneys who were in the Office when Mr. Roberts served as Principal Deputy Solicitor General also have maintained, to varying extent, their own copies of the same recommendations to the Solicitor General that are contained in the Office's binders. Those copies are duplicates and, as recommendations, are being withheld under Exemption 5 of the FOIA for the same reason that the copies in the binders are being withheld.

If you would like to discuss any matter concerning your request, please contact Edwin S. Kneedler (202 514-3261) or Thomas G. Hungar (202 514-2211), who are Deputy Solicitors General in this Office.

If you are not satisfied with my action on this request you may administratively appeal from this partial denial by writing to a Co-Director of the Office of Information and Privacy, United States Department of Justice, Flag Building, Suite 570, Washington, D.C. 20530-0001, within sixty days from the date of this letter. Both the letter and the envelope should be clearly marked "Freedom of Information Act Appeal."

Sincerely.

Kaletus L. McCain

Freedom of Information Act Officer