Georgia Fights for Justice Department Records in Election Case

Georgia’s claim the Justice Department must only conduct litigation strategy discussions with outside groups verbally to avoid a public records request is “quite breathtaking,” the chief judge of the Washington federal appeals court said.

A three-judge panel for the US Court of Appeals for the D.C. Circuit on Friday weighed whether the state can access communications between the Justice Department and voting rights groups collaborating under a common-interest agreement in challenges to a state voting law.

Gene Schaerr of Schaerr Jaffe, representing Georgia, told the panel at argument that records created between lawyers for DOJ and private advocacy groups should be subject to the Freedom of Information Act, and not shielded under an exemption for internal communications.

If the federal government wanted to avoid making litigation strategy accessible to the opposing side, they would need to limit their strategy discussions to Zoom meetings or other verbal conversations, Schaerr said.

“They have to do everything orally? They can’t exchange emails about strategy?” Chief Judge Sri Srinivasan said. “That’s quite breathtaking.”

Judge Robert Garcia raised similar concerns about other “serious practical consequences” of not exempting those communications between the federal government and outside groups in this context.

He floated a hypothetical where the Justice Department is representing a non-employee, such as a member of Congress, a circumstance he said would also not be exempted under Schaerr’s interpretation.

“So there would essentially just be no attorney-client privilege at all where DOJ is representing non-agency personnel?” Garcia said.

Schaerr responded that there “may well be some other way” to protect those communications, and to the extent it is an issue, it Congress could amend FOIA.

“There’s no escaping the language” of this exemption, Schaerr said. “It may well be that the enemy of my enemy is my friend, but it’s a much longer step to say the enemy of my enemy is actually part of me.”

Justice Department attorney Jeffrey Sandberg said the privilege isn’t waived for records created after the common-interest agreement was reached because the outside groups are part of the government’s litigation team.

Judge Judith Rogers also sat on the panel, appearing remotely.

Election Challenges

The dispute centers on the limits of Exemption 5 of the public records law, which guards interagency and intra-agency communications from release.

The Justice Department and dozens of private organizations sued over parts of a 2021 Georgia law, known as SB 202, that limits access to mail-in voting. They argue some of its provisions disproportionately affect Black voters.

Passed in after the contested 2020 presidential election, the law shortened the window for absentee mail-in voting, imposed additional identification requirements to apply for absentee ballots, and restricted the number of ballot drop boxes in each county, among other provisions.

Some of the suits have been combined in Georgia federal court for discovery, and the Justice Department and the private challengers, including the NAACP Legal Defense Fund, entered into a common interest agreement to share litigation materials and other communications, according to court filings.

The state of Georgia filed a FOIA request seeking records related to the DOJ’s suit challenging the election law, including communications between the department and outside groups, and then sued when the department didn’t respond by the required deadline.

DOJ then conducted a search and turned over some records. But it withheld some of the responsive documents under the contested exemption for interagency or intra-agency communications.

Georgia challenged that exemption, and a Washington federal trial judge sided with the state, finding that the exemption didn’t apply to the department’s communications with outside groups.

This case is not about the substance of the election law, but rather about whether outside organizations “may lobby and seek to influence DOJ’s litigation strategy under a veil of secrecy,” Georgia state officials argued in a brief at the appeals court.

The federal government countered in a court brief at the DC Circuit that these withheld materials are “indisputably of the kind protected by attorney work-product privilege,” which it said the claimed exemption has long been interpreted to cover.

State of Georgia v. DOJ, D.C. Cir., No. 23-5083, 10/4/24