FOIA Update: FOIA Counselor: Questions & Answers

January 1, 1988

FOIA Update
Vol. IX, No. 4
1988


FOIA Counselor:  Questions & Answers

Does an "Open America" stay of proceedings include the time required for the preparation of a Vaughn affidavit?

No, not necessarily, but it can extend for such a period. An "Open America" stay of proceedings in a FOIA lawsuit can be issued by a court where necessary to allow a defendant agency a sufficient period of time in which to reach a FOIA request in its existing backlog and to process it in an orderly fashion. This was established in the landmark case of Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 615-16 (D.C. Cir. 1976), which involved a FOIA request which was deep in the FBI's then-existing backlog and which encompassed more than 38,000 pages of responsive records. The D.C. Circuit held in Open America that such circumstances amount to "exceptional circumstances" under the Act and that, so long as an agency is proceeding with "due diligence" and there is no exceptional reason to favor the plaintiff requester over others earlier in line, the agency should be allowed the time reasonably necessary "to complete its review of the records." 547 F.2d at 616 (employing language of 5 U.S.C. § 552(a)(6)(C)). Although it correctly has been observed that Open America does not directly address the further period of time required by an agency to prepare its Vaughn affidavits justifying the nondisclosure of any withheld records once they are processed, see Knight Publishing Co. v. Department of Justice, 608 F. Supp. 747, 750-51 (W.D.N.C. 1984), Open America stays should, as a matter of practicality, be extended to cover such time periods. Indeed, as a practical matter, courts have tended to merge the record-processing and the affidavit-preparation stages when issuing stays of proceedings under Open America. See, e.g., Ettlinger v. FBI, 596 F. Supp. 867, 878-79 (D. Mass. 1984) (Open America stay granted for both processing records and preparing Vaughn affidavit); Shaw v. Department of State, 1 GDS ¶ 80,250, at 80,630 (D.D.C. July 31, 1980) (same). Where necessary, courts have granted lengthy Open America stays. See, e.g., Benny v. Department of Justice, Civil No. 86-1172, slip op. at 6 (D.D.C. Oct. 21, 1986) (stay totaling 21 months granted); Ely v. Executive Office for United States Attorneys, Civil No. 84-2962, slip op. at 1 (D.D.C. Dec. 21, 1984) (24-month stay). See also Caifano v. Wampler, 588 F. Supp. 1392, 1393-95 & nn.2-3 (N.D. Ill. 1984) (effectively granting open-ended stay and denying Vaughn motion as "premature"). Finally, an agency in litigation always has the right to seek additional time required for its preparation of a Vaughn affidavit, even apart from Open America, pursuant to Rule 6(b) of the Federal Rules of Civil Procedure. Accord, e.g., Mackenzie v. CIA, Civil No. 82-1676, slip op. at 2 (D.D.C. Mar. 26, 1984) (20-month stay granted for processing plaintiff's requests; Vaughn affidavit and accompanying dispositive motion to be filed "within a reasonable time" thereafter).

Can "briefing materials" be protected from disclosure under Exemption 5?

Yes, as a general rule. "Briefing materials" -- such as reports or other documents prepared for the purpose of summarizing issues and advising superiors -- generally are the type of predecisional agency records which by their very nature fall within the protective scope of the deliberative process privilege under Exemption 5. It is well recognized that the deliberative process privilege shields from FOIA disclosure any "subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). Documents prepared for briefing purposes can be entitled to broad deliberative process protection on this basis. For example, in Williams v. Department of Justice, 556 F. Supp. 63, 65 (D.D.C. 1982), it was held that "briefing papers prepared for the Attorney General prior to [his] appearance before a congressional committee" were "clearly deliberative" and withholdable in their entireties under Exemption 5. See also, e.g., Washington Post Co. v. Department of Defense, Civil No. 84-2949, slip op. at 20 (D.D.C. Feb. 25, 1987) (Exemption 5 protection for report "produced to assist the Joint Chiefs of Staff" on matters of military strategy). However, briefing materials frequently contain substantial amounts of factual material, which may or may not be exempt, depending upon the circumstances involved. Such material can readily be entitled to deliberative process protection where it consists, for example, of "summaries prepared solely for the purpose of evaluating agency policies or decisions." Id. at 23. The factual portions of briefing materials should be reviewed carefully in each case to determine Exemption 5 applicability. See FOIA Update, Summer 1986, at 6 (specifying bases upon which factual information qualifies for deliberative process protection).

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