This appeal centers on communications between the U.S. Department of Justice ("DOJ") and a telecommunications company, in which the company allegedly lobbied DOJ to take its side in litigation with a client of law firm Hunton and Williams, LLC ("Hunton"). The district court upheld DOJ’s decision to deny Hunton’s request under the Freedom of Information Act, 5 U.S.C. § 552 (2006), ("FOIA") for records of those communications. Hunton contends that it is entitled to the records, regardless of whether they satisfied the requirements of the so-called common interest doctrine, which enables parties with a shared legal interest to pursue a joint legal strategy. DOJ argues not only that common interest communications are exempt from FOIA, but that we should defer to the agency’s invocation of the common interest doctrine without demanding any serious inquiry into the validity of its common interest claims.
Both sides have a point, though only a partial one. DOJ argues persuasively that FOIA does not strip the government of its civil discovery privileges or its valuable right to partner with other parties in litigation or in anticipation of the same. At the same time, however, Hunton correctly contends that common interest assertions by government agencies must be carefully scrutinized. For the doctrine to apply, an agency must show that it had agreed to help another party prevail on its legal claims at the time of the communications at issue because doing so was in the public interest. It is not enough that the agency was simply considering whether to become involved.
