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The U.S. Court of Appeals for the D.C. Circuit ruled unanimously Tuesday that the manual — created in the wake of the Justice Department acknowledging failures in the prosecution of the late Sen. Ted Stevens (R-Alaska) — is exempt from disclosure under the Freedom of Information Act. | AP Court: Feds need not release post-Ted Stevens evidence guide

A federal appeals court has declared that the Justice Department need not make public a guide to when prosecutors should disclose evidence to defendants in criminal cases, but two of the three judges deciding the case took the unusual step of indicating that they believe the manual should be public.

The U.S. Court of Appeals for the D.C. Circuit ruled unanimously Tuesday that the manual — created in the wake of the Justice Department acknowledging failures in the prosecution of the late Sen. Ted Stevens (R-Alaska) — is exempt from disclosure under the Freedom of Information Act because the guide qualifies as privileged attorney-work product.

The main opinion in the case, authored by Judge Sri Srinivasan, affirms a district court's decision rejecting a lawsuit in which the National Association of Criminal Defense Lawyers demanded release of the manual.

What's more striking is the concurring opinion from Judge David Sentelle, stating his view that while D.C. Circuit precedent required the rejection of the defense lawyers' plea for access, that precedent is wrong and should be overturned in favor of greater public access to federal prosecutors' litigation policies and practices.

"There is no area in which it is more important for the citizens to know what their government is up to than the activity of the Department of Justice in criminally investigating and prosecuting the people," Sentelle wrote, in a concurring opinion joined by Judge Harry Edwards. "The government certainly has the power to claim a FOIA exemption to hide its internal manuals describing how it goes about that awesome undertaking. But if it chooses to exercise that power, then the people might be forgiven for cynically asking 'what is it you have to hide?'"

The main legal issue in the case is whether legal advice given in connection with a broad category of cases should be entitled to the same protection from disclosure in the same way such advice or lawyers' notes are in connection with a specific trial, case or action.

Sentelle said that the D.C. Circuit unwisely agreed in a 1992 case, Schiller v. NLRB, to treat the more broadly focused materials as identical to those related to specific matters. He also cast his lot with FOIA users who complain that an exemption in the law called Exemption 5 is being read so broadly that vast swaths of government information are withheld as privileged.

Sentelle said it was sensible to allow lawyers to withhold notes related to a specific case to allow for confidential strategy making.

"That goal is accomplished by an exemption which protects from disclosure the litigation decisions and related information in the handling of specific litigation. I grant that it is possible to interpret Exemption 5 broadly; that does not mean it is appropriate to do so," Sentelle wrote.

Both Sentelle and Edwards indicated through the concurrence that they would favor the full bench of the D.C. Circuit overturning or modifying Schiller. However, both are in senior status, so they don't get to vote on such en banc review. In any event, the D.C. Circuit very rarely grants it.

Sentelle's opinion also notes that the Supreme Court could take up the question and reverse the D.C. Circuit decision, striking a blow for transparency. The opinion does not note explicitly that the Obama administration could simply release the manual as a matter of discretion, rather than fighting its disclosure in the courts.

The Sentelle-Edwards concurrence is also notable because the two judge hail from different ends of the political spectrum. Sentelle was appointed by President Ronald Reagan. Edwards was named to the court by President Jimmy Carter.

Srinivasan was appointed by President Barack Obama.

Josh Gerstein is a senior reporter for POLITICO.