Freedom of Information Act Guide, May 2004
Exemption 5 of the FOIA protects "inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than
an agency in litigation with the agency." (1) The courts have construed this somewhat
opaque language, with its sometimes confusing threshold requirement, (2) to "exempt
those documents, and only those documents that are normally privileged in the civil
discovery context." (3)
Although originally it was "not clear that Exemption 5 was intended to
incorporate every privilege known to civil discovery," (4) the Supreme Court
subsequently made it clear that the coverage of Exemption 5 is quite broad,
encompassing both statutory privileges and those commonly recognized by case
law, and that it is not limited to those privileges explicitly mentioned in its legislative
history. (5) Accordingly, the Court of Appeals for the District of Columbia Circuit has
stated that the statutory language "unequivocally" incorporates "all civil discovery
rules into FOIA [Exemption 5]." (6) However, this incorporation of discovery privileges
requires that a privilege be applied in the FOIA context exactly as it exists in the
discovery context. (7) Thus, the precise contours of a privilege, with regard to
applicable parties or the types of information that are protectible, are also
incorporated into the FOIA. (8)
Additionally, it is not the "hypothetical litigation" between particular parties
(in which relevance or need are appropriate factors) that governs Exemption 5's
applicability; (9) rather, it is the circumstances in civil litigation in which memoranda
would "routinely be disclosed." (10) Therefore, whether the privilege invoked is
absolute or qualified is of no significance. (11) Accordingly, no requester is entitled to
greater rights of access under Exemption 5 by virtue of whatever special interests
might influence the outcome of actual civil discovery to which he is a party. (12) Indeed,
such an approach, combined with a careful application of Exemption 5's threshold
language, is the only means by which the Supreme Court's firm admonition against
use of the FOIA to circumvent discovery privileges can be given full effect. (13)
Nevertheless, the fact that information is not generally discoverable does not
necessarily mean that it is not discoverable by a specific class of parties in civil
litigation, so just as the FOIA's privacy exemptions are not used against a first-party
requester, (14) a privilege that is designed to protect a certain class of persons cannot
be invoked against those persons as FOIA requesters. (15)
The three primary, most frequently invoked privileges that have been held to
be incorporated into Exemption 5 are the deliberative process privilege (referred to
by some courts as "executive privilege"), the attorney work-product privilege, and
the attorney-client privilege. (16) First, however, Exemption 5's threshold requirement
must be considered.
The threshold issue under Exemption 5 is whether a record is of the type
intended to be covered by the phrase "inter-agency or intra-agency memorandums" -- a phrase which, at first glance, would seem to encompass only documents
generated by an agency and not documents circulated beyond the executive
branch. (17) Three years ago, the Supreme Court shed light on this issue when it ruled
on the contours of Exemption 5's "inter-agency or intra-agency" threshold
requirement for the first time in Department of the Interior v. Klamath Water Users
Protective Ass'n. (18) In a unanimous decision, the Court ruled that the threshold of
Exemption 5 did not encompass communications between the Department of the
Interior and several Indian tribes which, in making their views known to the
Department on certain matters of administrative decisionmaking, not only had "their
own, albeit entirely legitimate, interests in mind," (19) but also were "seeking a
Government benefit at the expense of other applicants." (20) Thus, records submitted
to the agency by the Tribes, as "outside consultants," did not qualify for attorney
work-product and deliberative process privilege protection in the case. (21)
Significantly, the Supreme Court's holding in Klamath rested on distinctly
narrower grounds than did the appellate court's ruling below. (22) Before the case
reached the Supreme Court, the Court of Appeals for the Ninth Circuit had held that
Exemption 5's threshold could not accommodate communications between an
agency and any "outside consultant" who has a "direct interest" in the subject of its
"consultation" with the agency. (23) But this simplistic "direct interest" test did not
survive the Supreme Court's review. (24)
Rather, while acknowledging that "consultants whose communications have
typically been held exempt have not been communicating with the Government in
their own interest" or on behalf of anyone else "whose interests might be affected by
the Government action addressed by the consultant," (25) the Supreme Court went one
step further than the Ninth Circuit in its analysis. "While this fact alone distinguishes
tribal communications from the consultants' examples recognized by several Courts
of Appeals," the Court reasoned, "the distinction here is even sharper, in that the
Tribes are self-advocates at the expense of others seeking benefits inadequate to
satisfy everyone." (26) Indeed, by limiting its holding to only those communications in
which the "outside consultant" has an interest in the outcome of the decisionmaking
process and in which other existing parties have competing interests in "benefits
inadequate to satisfy everyone," the Court pointedly refrained from adopting a rule
any broader than the facts of the case required. (27) Rather, it limited its holding to
situations involving the advocacy of competing external interests by those who
might otherwise qualify as consultants for purposes of satisfying Exemption 5's
During the years leading up to Klamath, in recognition of the necessities and
practicalities of agency functioning, many courts had construed the scope of
Exemption 5 to include various types of communications originating outside of
agencies. (29) This pragmatic approach to the "inter-agency or intra-agency" threshold
requirement, which in light of Klamath may be characterized as an "outside
consultant" test, in the past often was characterized as a "functional test" for
assessing the availability of Exemption 5 protection. (30) In Klamath, the Supreme
Court assumed for purposes of its decision, and thereby implicitly strengthened, the
pragmatic "outside consultant" approach to Exemption 5's threshold language. (31)
Regarding records generated outside an agency but created through agency
initiative, whether purchased or provided voluntarily without compensation, the
Court of Appeals for the District of Columbia Circuit observed in Ryan v. Department
of Justice (32) that "Congress apparently did not intend 'inter-agency or intra-agency' to
be rigidly exclusive terms, but rather to include [nearly any record] that is part of the
deliberative process." (33) Included in this category are recommendations from
Members of Congress, (34) recommendations from an office of an agency to a
commission established to assist another agency's policymaking, (35) consultations
with a state agency concerning a joint state-federal regulatory project, (36) and
documents provided by an agency's contractor employees. (37) Likewise, the D.C.
Circuit has held that Exemption 5 applies to documents originating with a court. (38)
Under this commonsense approach, documents generated by consultants outside of
an agency were typically found to qualify for Exemption 5 protection because
agencies, in the exercise of their primary functions, commonly have "a special need
for the opinions and recommendations of temporary consultants." (39) Indeed, it has
long been recognized under the FOIA that such advice can "play an integral
function in the government's decision[making]." (40)
While agencies often are the recipients of expert advice, they also
occasionally provide it. In Dow Jones & Co. v. Department of Justice, the D.C. Circuit
held that documents conveying advice from an agency to Congress for purposes of
congressional decisionmaking are not "inter-agency" records under Exemption 5 for
the simple reason that Congress is not an "agency" under the FOIA -- though the
court also held that agencies may protect communications outside of an agency if
they are "part and parcel of the agency's deliberative process." (41)
Just this past year, the District Court for the District of Columbia tried to apply
similar logic to a presidential commission, holding that the presidentially created
National Energy Policy Development Group is not an "agency" and that therefore
documents submitted to it by government agencies could not be said to be
contributing to an agency's decisionmaking process and cannot be withheld under
Exemption 5. (42) This decision, however, ignored an essential preliminary holding of a
thirty-year-old Supreme Court decision, EPA v. Mink, in which the Court declared
that it was "beyond question that [agency documents prepared for a presidentially
created committee organized to advise him on matters involving underground
nuclear testing] are 'inter-agency or intra-agency' memoranda or 'letters' that were
used in the decisionmaking processes of the Executive Branch." (43)
Just as the Supreme Court long ago recognized that agency
recommendations to the President must qualify as inter-agency communications for
purposes of Exemption 5, the D.C. Circuit similarly so held in the very recently
decided case of Judicial Watch, Inc. v. Department of Justice, in which it ruled that
certain Department of Justice communications to the President or the Office of the
President regarding pardons were properly protected under the presidential
communications privilege. (44) Significantly, the necessary implication of the D.C.
Circuits ruling was that these records were protected under Exemption 5 despite
the fact that neither the President nor the Office of the President is an "agency"
subject to the FOIA. (45) In short, the wooden test of Dow Jones must bow when it
comes to agency communications with the President. (46)
Fifteen years ago, in Formaldehyde Institute v. HHS, (47) the D.C. Circuit found
that Exemption 5's "inter-agency or intra-agency" threshold requirement was
satisfied even where no "formal relationship" existed between HHS and an outside
scientific journal engaged in the process of reviewing an article that was submitted
by an HHS scientist for possible publication. (48) The D.C. Circuit stated that the
deciding factor was the "role" that the evaluative comments from the journal's
reviewers played in the process of agency deliberations -- that is, they were
regularly relied upon by agency authors and supervisors in making the agency's
decisions. (49) More recently, in Public Citizen, Inc. v. United States Department of
Justice, (50) the D.C. Circuit protected the consultative relationship between former
Presidents and agencies under the Presidential Records Act, (51) going so far as to
conclude that "[c]onsultations under the Presidential Records Act are precisely the
type that Exemption 5 was designed to protect." (52) It should be noted, moreover,
that the Supreme Court in Klamath explicitly left open the continued viability of the
D.C. Circuit's precedents in both Public Citizen and Ryan, noting that these two
decisions "arguably extend" beyond the "typical examples" of cases in which
communications of outside consultants have been held to satisfy "inter-agency or
intra-agency" threshold. (53) It remains to be seen how such pre-Klamath precedents
will develop further under Klamath in future cases involving the contours of
Exemption 5's threshold. (54)
In two cases decided subsequent to Klamath, though, federal district courts
have misread the threshold test as laid out by the Supreme Court. In Merit Energy
Co. v. United States Department of the Interior, (55) the District Court for the District of
Colorado held that communications between a Native American tribe and the
agency did not meet the "inter or intra-agency" test, solely on the basis that the tribe
was advocating its own interests. (56) In so ruling, the court failed to address the
essential second part of the Klamath test -- namely, whether the tribe was
advocating its interests at the expense of other parties. (57)
Similarly, in Center for International Environmental Law v. Office of the United
States Trade Representative, (58) the District Court for the District of Columbia refused
to allow the United States Trade Representative to protect documents exchanged
by his office with the Government of Chile in the course of bilateral trade
negotiations between the United States and the Chilean government. (59) In a flawed
analysis, this court first properly discussed the Supreme Court's holding that
possession of a distinct interest by an outside consultant is not, by itself, enough to
disqualify that party from meeting Exemption 5's threshold, (60) even quoting the
Court's opinion to the effect that '"the dispositive point is that the apparent object of
the Tribe's communications is a decision by the agency of the Government to
support a claim by the Tribe that is necessarily adverse to the interests of
competitors.'" (61) In spite of this, however, the district court then abruptly proceeded
to inexplicably conclude that the "critical factor" in the case before it was the "degree
of self-interest" pursued by the outside party, "as compared to its interest in
providing neutral advice" (62) -- a standard created entirely out of whole cloth that
completely ignores the critical second component of the Supreme Court's Klamath
test, i.e., the question of whether Chile's advocacy came at the expense of another
party. Indeed, as there is absolutely nothing in Klamath (or elsewhere) that calls for
the use of such a balancing test in such cases, this poorly reasoned decision should
not be followed. (63)
The most commonly invoked privilege incorporated within Exemption 5 is the
deliberative process privilege, the general purpose of which is to "prevent injury to
the quality of agency decisions." (64) Specifically, three policy purposes consistently
have been held to constitute the bases for this privilege: (1) to encourage open,
frank discussions on matters of policy between subordinates and superiors; (2) to
protect against premature disclosure of proposed policies before they are finally
adopted; and (3) to protect against public confusion that might result from
disclosure of reasons and rationales that were not in fact ultimately the grounds for
an agency's action. (65)
Logically flowing from the foregoing policy considerations is the privilege's
protection of the "decision making processes of government agencies." (66) In concept,
the privilege protects not merely documents, but also the integrity of the
deliberative process itself where the exposure of that process would result in
Indeed, in a major en banc decision, the Court of Appeals for the District of
Columbia Circuit emphasized that even the mere status of an agency decision within
an agency decisionmaking process may be protectible if the release of that
information would have the effect of prematurely disclosing "the recommended
outcome of the consultative process . . . as well as the source of any decision." (68) This
is particularly important to agencies involved in a regulatory process that specifically
mandates public involvement in the decision process once the agency's
deliberations are complete. (69) Moreover, the predecisional character of a document
is not altered by the fact that an agency has subsequently made a final decision (70) or
even has decided to not make a final decision. (71) Nor is it altered by the passage of
time in general. (72)
Traditionally, the courts have established two fundamental requirements,
both of which must be met, for the deliberative process privilege to be invoked. (73)
First, the communication must be predecisional, i.e., "antecedent to the adoption of
an agency policy." (74) Second, the communication must be deliberative, i.e., "a direct
part of the deliberative process in that it makes recommendations or expresses
opinions on legal or policy matters." (75) The burden is upon the agency to show that
the information in question satisfies both requirements. (76)
In determining whether a document is predecisional, an agency does not
necessarily have to point specifically to an agency final decision, but merely
establish "what deliberative process is involved, and the role played by the
documents in issue in the course of that process." (77) On this point, the Supreme Court
has been very clear:
Thus, so long as a document is generated as part of such a continuing process
of agency decisionmaking, Exemption 5 can be applicable. (79) In a particularly
instructive decision, Access Reports v. Department of Justice, (80) the D.C. Circuit
emphasized the importance of identifying the larger process to which a document
sometimes contributes. Further, "predecisional" documents are not only those
circulated within the agency, but can also be those from an agency lacking
decisional authority which advises another agency possessing such authority. (81)
They even can be "documents which the agency decisionmaker herself prepared as
part of her deliberation and decisionmaking process." (82) Lastly, it has been held that
the privilege is not limited to deliberations connected solely to agency activities that
are specifically authorized by Congress. (83)
In contrast, however, are postdecisional documents. They generally embody
statements of policy and final opinions that have the force of law, (84) that implement
an established policy of an agency, (85) or that explain actions that an agency has
already taken. (86) Exemption 5 ordinarily does not apply to postdecisional documents,
as "the public is vitally concerned with the reasons which did supply the basis for an
agency policy actually adopted." (87) However, if a document is postdecisional in form
but predecisional in its content, it may be protectible. For example, one court has
held that an
e-mail message generated after the relevant agency decision had been made, but
which merely reiterated the agency's predecisional deliberations and the author's
own recommendations, was essentially predecisional and thus protectible under
Exemption 5. (88)
Many courts have confronted the question of whether certain documents at
issue were tantamount to agency "secret law," i.e., "orders and interpretations which
[the agency] actually applies to cases before it," (89) and which are "routinely used by
agency staff as guidance." (90) Such documents should be disclosed because they are
not in fact predecisional, but rather "discuss established policies and decisions." (91)
Only those portions of a postdecisional document that discuss predecisional
recommendations not expressly adopted can be protected. (92)
Several criteria have been fashioned to clarify the "often blurred" distinction
between predecisional and postdecisional documents. (93) First, an agency should
determine whether the document is a "final opinion" within the meaning of one of the
two "automatic" disclosure provisions of the FOIA, subsection (a)(2)(A). (94) In an
extensive consideration of this point, the Court of Appeals for the Fifth Circuit held
that, inasmuch as subsection (a)(2)(A) specifies "the adjudication of [a] case,"
Congress intended "final opinions" to be only those decisions resulting from
proceedings (such as that in Sears) in which a party invoked (and obtained a
decision concerning) a specific statutory right of "general and uniform" applicability. (95)
However, the D.C. Circuit has stated that Field Service Advice memoranda ("FSAs")
issued by the Internal Revenue Service's Office of Chief Counsel are not predecisional
documents, because they constitute "statements of an agency's legal position." (96)
The court reached this conclusion even though the opinions were found to be
"nonbinding" on the ultimate decisionmakers. (97)
Second, one must consider the nature of the decisionmaking authority vested
in the office or person issuing the document. (98) If the author lacks "legal decision
authority," the document is far more likely to be predecisional. (99) A crucial caveat in
this regard, however, is that courts often look "beneath formal lines of authority to
the reality of the decisionmaking process." (100) Hence, even an assertion by the
agency that an official lacks ultimate decisionmaking authority might be "superficial"
and unavailing if agency "practices" commonly accord decisionmaking authority to
that official. (101) Conversely, an agency official who appears to have final authority
may in fact not have such authority or may not be wielding that authority in a
particular situation. (102)
Careful analysis of the decisionmaking process is sometimes required to
determine whether the records reflect an earlier preliminary decision or
recommendations concerning follow-up issues, (103) or whether the document sought
reflects a final decision or merely advice to a higher authority. (104) Thus, agency
recommendations to OMB concerning the development of proposed legislation to be
submitted to Congress are predecisional, (105) but descriptions of "agency efforts to
ensure enactment of policies already established" are postdecisional. (106)
Third, it is useful to examine the direction in which the document flows along
the decisionmaking chain. Naturally, a document "from a subordinate to a superior
official is more likely to be predecisional" (107) than is one that travels in the opposite
direction: "[F]inal opinions . . . typically flow from a superior with policymaking
authority to a subordinate who carries out the policy." (108) However, under certain
circumstances, recommendations can flow from the superior to the subordinate. (109)
Indeed, even a policymaker's own predecisional notes to herself may be
protectible. (110) Perhaps the most important factor to consider is the "'role, if any, that
the document plays in the process of agency deliberations.'" (111)
Finally, even if a document is clearly protected from disclosure by the
deliberative process privilege, it may lose this protection if a final decisionmaker
"chooses expressly to adopt or incorporate [it] by reference." (112) However, a few
courts have suggested a less stringent standard of "formal or informal adoption." (113)
Also, although mere "approval" of a predecisional document does not necessarily
constitute adoption of it, (114) an inference of incorporation or adoption has twice been
found to exist where a decisionmaker accepted a staff recommendation without
giving a statement of reasons. (115) Nevertheless, where it is unclear whether a
recommendation provided the basis for a final decision, the recommendation should
be protectible. (116)
A second primary limitation on the scope of the deliberative process privilege
is that of course it applies only to "deliberative" documents and it ordinarily is
inapplicable to purely factual matters, or to factual portions of otherwise
deliberative memoranda. (117) Not only would factual material "generally be available
for discovery," (118) but its release usually would not threaten consultative agency
functions. (119) This seemingly straightforward distinction between deliberative and
factual materials can blur, however, where the facts themselves reflect the agency's
deliberative process (120) -- which has prompted the D.C. Circuit to observe that "the
use of the factual matter/deliberative matter distinction produced incorrect
outcomes in a small number of cases." (121) In fact, the full D.C. Circuit has firmly
declared that factual information should be examined "in light of the policies and
goals that underlie" the privilege and in "the context in which the materials are
Recognizing the shortcomings of a rigid factual/deliberative distinction, courts
generally allow agencies to withhold factual material in an otherwise "deliberative"
document under two general types of circumstances. (123) The first circumstance
occurs when the author of a document selects specific facts out of a larger group of
facts and this very act is deliberative in nature. In Montrose Chemical Corp. v. Train,
for example, the summary of a large volume of public testimony compiled to
facilitate the EPA Administrator's decision on a particular matter was held to be part
of the agency's internal deliberative process. (124) The D.C. Circuit held that the very
act of distilling the testimony, of separating the significant facts from the
insignificant facts, constitutes an exercise of judgment by agency personnel. (125) Such
"selective" facts are therefore entitled to the same protection as that afforded to
purely deliberative materials, as their release would "permit indirect inquiry into the
mental processes," (126) and so "expose" predecisional agency deliberations. (127) Thus, to
protect the factual materials, an agency must identify a process which "could
reasonably be construed as predecisional and deliberative." (128)
A D.C. Circuit opinion concerning a report consisting of factual materials
prepared for an Attorney General decision on whether to allow former U.N.
Secretary General Kurt Waldheim to enter the United States provides an illustration
of this factual/deliberative distinction and of the breadth of deliberative process
privilege coverage under prevailing case law. (129) The D.C. Circuit found that "the
majority of [the report's] factual material was assembled through an exercise of
judgment in extracting pertinent material from a vast number of documents for the
benefit of an official called upon to take discretionary action," and that it therefore
fell within the deliberative process privilege. (130) By contrast, it also held that a
chronology of Waldheim's military career was not deliberative, as it was "neither
more nor less than a comprehensive collection of the essential facts" and "reflect[ed]
no point of view." (131)
The second such circumstance is when factual information is so inextricably
connected to the deliberative material that its disclosure would expose or cause
harm to the agency's deliberations. If revealing factual information is tantamount to
revealing the agency's deliberations, then the facts may be withheld. (132) For
example, the D.C. Circuit has held that the deliberative process privilege covers
construction cost estimates, which the court characterized as "elastic facts," finding
that their disclosure would reveal the agency's deliberations. (133)
Similarly, when factual or statistical information is actually an expression of
deliberative communications, it may be withheld on the basis that to reveal that
information would reveal the agency's deliberations. (134) Exemption 5 thus covers
scientific reports that constitute the interpretation of technical data, insofar as "the
opinion of an expert reflects the deliberative process of decision or policy making." (135)
It has even been extended to cover successive reformulations of computer programs
that were used to analyze scientific data. (136) The government interest in withholding
technical data is heightened if such material is requested at a time when disclosure
of a scientist's "nascent thoughts . . . would discourage the intellectual risk-taking so
essential to technical progress." (137) The Court of Appeals for the Ninth Circuit
strongly echoed this view in National Wildlife Federation v. United States Forest
Service, explaining as follows:
Likewise, it is noteworthy that the D.C. Circuit has stated that the "results of . . .
factual investigations" may be within the protective scope of Exemption 5. (139)
However, the D.C. Circuit also has emphasized that agencies bear the burden of
demonstrating that disclosure of such information "would actually inhibit candor in
the decision-making process." (140)
Documents that are commonly encompassed by the deliberative process
privilege include "advisory opinions, recommendations, and deliberations comprising
part of a process by which governmental decisions and policies are formulated," (141)
the release of which would likely "stifle honest and frank communication within the
agency." (142) Accordingly, though the courts have not spoken with complete harmony
on the subject, the overwhelming weight of authority now holds that "briefing
materials" -- such as reports or other documents that summarize issues and advise
superiors (either generally or in preparation of congressional testimony) -- are
properly protected under the deliberative process privilege. (143)
A category of documents particularly likely to be found exempt under the
deliberative process privilege is "drafts," (144) although it has been observed without
much analysis that such a designation "does not end the inquiry." (145) It should be
remembered, though, that the very process by which a "draft" evolves into a "final"
document can itself constitute a deliberative process warranting protection. (146) As a
result, Exemption 5 protection can be available to a draft document regardless of
whether it differs from its final version. (147)
Following the 1990 census, the factual/deliberative distinction led to sharply
contrasting decisions by two circuit courts of appeal, where the issue was the
Commerce Department's withholding of numeric material. (148) Both the Assembly of
the State of California and the Florida House of Representatives sought "adjusted"
census figures for their respective states that were developed in the event that the
Secretary of Commerce decided to adjust the 1990 census, a choice he opted
against. (149) The Court of Appeals for the Eleventh Circuit applied a rigid "fact or
opinion" test in determining whether such numerical data are protectible. (150) It
viewed the census data as "opinion" that was ultimately rejected by the
decisionmaker and therefore held them to be withholdable pursuant to the
deliberative process privilege. (151) The Ninth Circuit, on the other hand, upheld a
lower court's use of a "functional" test under which it found that the data, on "the
continuum of deliberation and fact . . . fell closer to fact." (152) The Ninth Circuit ordered
the California data released on the basis that disclosure would not reveal any of the
Department of Commerce's deliberative processes. (153) The Ninth Circuit reached a
similar conclusion in a case brought over statistical estimates compiled as part of
the 2000 census. (154) As none of these cases went to the Supreme Court, this narrow
In a case involving purely factual data found not to fall within the deliberative
process privilege, Petroleum Information Corp. v. United States Department of the
Interior, the D.C. Circuit concluded that such factual information should be shielded
by the privilege, or not, according to whether it involves "some policy matter." (155) It
focused on "whether the agency has plausibly demonstrated the involvement of a
policy judgment in the decisional process relevant to the requested documents," (156)
while at the same time suggesting that more "mundane" documents should be
protected when "disclosure genuinely could be thought likely to diminish the candor
of agency deliberations in the future." (157) This highly questionable approach has been
used by a few other courts, (158) but it should provide no more than a point of
departure for any exercise of sound administrative discretion in the application of
the deliberative process privilege by an agency on a case-by-case basis. (159) Indeed, a
much more practical and sensible approach is that which was taken by the Ninth
Circuit in National Wildlife, where it flatly rejected the suggestion that it impose
such a requirement that documents contain "recommendations on law or policy to
qualify as deliberative." (160)
Lastly, protecting the very integrity of the deliberative process can, in some
contexts, be the basis for the protection of factual information. (161) Similarly under
some circumstances disclosure of even the identity of the author of a deliberative
document could chill the deliberative process, thus warranting protection of that
identity under Exemption 5, (162) even in circumstances in which a final version of the
document in question has been released to the public. (163) Indeed, one court has
specifically noted that the danger of revealing the agency's deliberations by
disclosing facts is particularly acute when the document withheld is "short." (164)
Factual information within a deliberative document also may be withheld when it is
impossible to reasonably segregate meaningful portions of that factual information
from the deliberative information. (165)
The second traditional privilege incorporated into Exemption 5 is the attorney
work-product privilege, which protects documents and other memoranda prepared
by an attorney in contemplation of litigation. (166) As its purpose is to protect the
adversarial trial process by insulating the attorney's preparation from scrutiny, (167) the
work-product privilege ordinarily does not attach until at least "some articulable
claim, likely to lead to litigation," has arisen. (168) The privilege is not limited to civil
proceedings, but rather extends to administrative proceedings (169) and to criminal
matters as well. (170) Similarly, the privilege has also been held applicable to documents generated in
preparation of an amicus brief. (171)
The privilege sweeps broadly in several respects. (172) First, litigation need
never have actually commenced, so long as specific claims have been identified
which make litigation probable. (173) Significantly, the Court of Appeals for the District
of Columbia Circuit has ruled that the privilege "extends to documents prepared in
anticipation of foreseeable litigation, even if no specific claim is contemplated." (174)
The privilege also has been held to attach to records of law enforcement
investigations, when the investigation is "based upon a specific wrongdoing and
represent[s] an attempt to garner evidence and build a case against the suspected
However, the mere fact that it is conceivable that litigation might occur at
some unspecified time in the future will not necessarily be sufficient to protect
attorney-generated documents; it has been observed that "the policies of the FOIA
would be largely defeated" if agencies were to withhold any documents created by
attorneys "simply because litigation might someday occur." (176) But when litigation is
reasonably regarded as inevitable under the circumstances, a specific claim need
not yet have arisen, (177) and agencies can obtain necessary protection through the
attorney work-product privilege. (178)
Further, it has been held that a document that was prepared for two
disparate purposes was compiled in anticipation of litigation if "litigation was a
major factor" in the decision to create it. (179) However, documents pre-pared in an
agency's ordinary course of business, not under circumstances sufficiently related to
litigation, may not be accorded protection. (180)
The attorney work-product privilege also has been held to cover documents
"relat[ing] to possible settlements" of litigation. (181) Logically, it can also protect the
recommendation to close a litigation or prelitigation matter, (182) and even the final
agency decision to terminate litigation. (183) But doc-uments prepared subsequent to
the closing of a case are presumed, absent some specific basis for concluding
otherwise, not to have been prepared in anticipation of litigation. (184) Moreover, one
court has held that documents not originally prepared in anticipation of litigation
cannot assume the protection of the work-product privilege merely through their
later placement in a litigation-related document. (185)
Second, Rule 26(b)(3) of the Federal Rules of Civil Procedure allows the
privilege to be used to protect documents prepared "by or for another party or by or
for that other party's representative." Not only do documents prepared by agency
attorneys who are responsible for the litigation of a case which is being defended or
prosecuted by the Department of Justice qualify for the privilege, (186) but also
documents prepared by an attorney "not employed as a litigator." (187) Courts have
also accorded work-product protection to materials prepared by nonattorneys who
are supervised by attorneys. (188) The premise in such cases is that work-product
protection is appropriate when the nonattorney acts as the agent of the attorney;
when that is not the case, the work-product privilege as incorporated by the FOIA
has not been extended to protect the material prepared by the nonattorney. (189)
Third, the work-product privilege has been held to remain applicable when
the information has been shared with a party holding a common interest with the
agency. (190) The privilege remains applicable also when the document has become
the basis for a final agency decision. (191)
In NLRB v. Sears, Roebuck & Co., (192) the Supreme Court allowed the
withholding of a final agency decision on the basis that it was shielded by the work-product privilege, (193) but it also stated that Exemption 5 can never apply to final
decisions and it expressed reluctance to "construe Exemption 5 to apply to
documents described in 5 U.S.C. Â§ 552(a)(2)," (194) the "reading room" provision of the
FOIA. (195) This result inevitably led to no small amount of confusion, (196) which was
cleared up by the Supreme Court in Federal Open Market Committee v. Merrill. (197) In
Merrill, the Court explained its statements in Sears, (198) and plainly stated that even if
a document is a final opinion, and therefore falls within subsection (a)(2)'s mandatory
disclosure requirements, it still may be withheld if it falls within the work-product
privilege. (199) (For a discussion of the automatic disclosure requirements of
subsection (a)(2), see FOIA Reading Rooms, above.)
Fourth, the Supreme Court's decisions in United States v. Weber Aircraft
Corp. (200) and FTC v. Grolier Inc., (201) viewed in light of the traditional contours of the
attorney work-product doctrine, afford sweeping attorney work-product protection
to factual materials. Because factual work-product enjoys qualified immunity from
civil discovery, such materials are discoverable "only upon a showing that the party
seeking discovery has substantial need" of materials which cannot be obtained
elsewhere without "undue hardship." (202) In Grolier, the Supreme Court held that the
"test under Exemption 5 is whether the documents would be 'routinely' or 'normally'
disclosed upon a showing of relevance." (203) Because the rules of civil discovery
require a showing of "substantial need" and "undue hardship" in order for a party to
obtain any factual work-product, (204) such materials are not "routinely" or "normally"
discoverable. This "routinely or normally discoverable" test was unanimously
reaffirmed by the Supreme Court in Weber Aircraft. (205)
Although several pre-Weber Aircraft circuit court decisions mistakenly limited
attorney work-product protection to "deliberative" material, (206) no distinction
between factual and deliberative work-product should be applied. (207) Almost all
courts have taken this broad view of the privilege, including the D.C. Circuit, to clarify
once and for all that factual information is fully entitled to work-product protection. (208)
However, it should be remembered that the agency always has the burden of
showing that the privilege applies to all withheld information. (209)
A collateral issue is the applicability of the attorney work-product privilege to
witness statements. Within the civil discovery context, the Supreme Court has
recognized at least a qualified privilege from civil discovery for such documents --
such material was held discoverable only upon a showing of necessity and
justification. (210) Applying the "routinely and normally discoverable" test of Grolier and
Weber Aircraft, the D.C. Circuit has firmly held that witness statements are
protectible under Exemption 5. (211) Although some courts by contrast have mistakenly
held that witness statements are merely unprivileged factual information that must
be segregated for disclosure, (212) the weight of authority supports the conclusion that
the contours of Exemption 5's privilege incorporation are coextensive with the
protective scope of the attorney work-product privilege. (213) Indeed, witness
statements were the very records at issue in Hickman v. Taylor, (214) the seminal case
in which the Supreme Court articulated the attorney work-product privilege
Any such differences over the traditional protection accorded witness
statements do not in any event affect the viability of protecting aircraft accident
witness statements; such statements are protected under a distinct common law
privilege that was first enunciated in Machin v. Zuckert (216) and then was applied
under the FOIA in Weber Aircraft. (217) (See the discussion under Exemption 5, Other
As a final point, it should be noted that the Supreme Court's decision in Grolier
resolved a split in the circuits by ruling that the termination of litigation does not
vitiate the protection for material otherwise properly categorized as attorney work-product. (218) Thus, as a matter of law, there is no temporal limitation on work-product
protection under the FOIA. (219) However, such protection may be vitiated if the
withholding of attorney work-product material would also shield from disclosure the
unprofessional practices of an attorney by whom or under whose direction the
material was prepared. (220) Otherwise, there is no "public interest" exception to the
application of the work-product privilege (221) under Exemption 5. (222)
The third traditional privilege incorporated into Exemption 5 concerns
"confidential communications between an attorney and his client relating to a legal
matter for which the client has sought professional advice." (223) Unlike the attorney
work-product privilege, the attorney-client privilege is not limited to the context of
litigation. (224) Moreover, although it fundamentally applies to facts divulged by a client
to his attorney, this privilege also encompasses any opinions given by an attorney to
his client based upon, and thus reflecting, those facts, (225) as well as communications
between attorneys that reflect client-supplied information. (226)
The Supreme Court, in the civil discovery context, has emphasized the public
policy underlying the attorney-client privilege -- "that sound legal advice or advocacy
serves public ends and that such advice or advocacy depends upon the lawyer's
being fully informed by the client." (227) As is set out in greater detail in the discussion
of the attorney work-product above, the Supreme Court held in United States v.
Weber Aircraft Corp. (228) and in FTC v. Grolier Inc. (229) that the scopes of the various
privileges are coextensive in the FOIA and civil discovery contexts. (230) Thus, any
FOIA decision that might purport to expand or contract the privilege's contours
according to whether the privilege is presented in a civil discovery or a FOIA
context (231) does not accurately reflect the state of the law on this issue. (232)
The parallelism of a civil discovery privilege and Exemption 5 protection is
particularly significant with respect to the concept of a "confidential communication"
within the attorney-client relationship. To this end, one court has held that
confidentiality may be inferred when the communications suggest that "'the
government is dealing with its attorneys as would any private party seeking advice
to protect personal interests.'" (233) In Upjohn Co. v. United States, the Supreme Court
held that the attorney-client privilege covers attorney-client communications when
the specifics of the communication are confidential, even though the underlying
subject matter is known to third parties. (234) Accordingly, the line of FOIA decisions in
the Court of Appeals for the District of Columbia Circuit that squarely conflicts with
the Upjohn analysis (235) should not be followed. (236)
The Supreme Court in Upjohn concluded that the privilege encompasses
confidential communications made to the attorney not only by decisionmaking
"control group" personnel, but also by lower-echelon employees. (237) This broad
construction of the attorney-client privilege acknowledges the reality that such
lower-echelon personnel often possess information relevant to an attorney's advice-rendering function. (238) However, in 1997 the D.C. Circuit held that otherwise
confidential agency memoranda are not protected under the privilege if they are
authoritative interpretations of agency law. (239)
The FOIA neither expands nor contracts existing privileges, nor does it create
any new privileges. (240) However, the Supreme Court has indicated that Exemption 5
may incorporate virtually all civil discovery privileges; if a document is immune from
civil discovery, it is similarly protected from mandatory disclosure under the FOIA. (241)
Because Rule 501 of the Federal Rules of Evidence allows courts to create privileges
as necessary, (242) there exists the potential for "new privileges" to be applied under
Exemption 5. (243) However, one major caveat should be noted in the application of any
discovery privilege under the FOIA: A privilege should not be used against a
requester who would routinely receive such information in civil discovery. (244)
A quarter-century ago, in Federal Open Market Committee v. Merrill, (245) the
Supreme Court found an additional privilege incorporated within Exemption 5 based
upon Federal Rule of Civil Procedure 26(c)(7), which provides that "for good cause
shown . . . a trade secret or other confidential research, development or commercial
information" is protected from discovery. This qualified privilege is available "at
least to the extent that this information is generated by the Government itself in the
process leading up to the awarding of a contract" and expires upon the awarding of
the contract or upon the withdrawal of the offer. (246) The theory underlying the
privilege is that early release of such information would likely put the government at
a competitive disadvantage by endangering consummation of a contract;
consequently, "the sensitivity of the commercial secrets involved, and the harm that
would be inflicted upon the Government by premature disclosure should . . . serve as
relevant criteria." (247)
This harm rationale has led one court to hold that the commercial privilege
may be invoked when a contractor who has submitted proposed changes to the
contract requests sensitive cost estimates. (248) Based upon this underlying theory,
there is nothing in Merrill to prevent it from being read more expansively to protect
the government from competitive disadvantage outside of the contract setting, as
the issue in Merrill was not presented strictly within such a setting. (249) However, the
Court of Appeals for the District of Columbia Circuit has declined to extend this
privilege to scientific research, holding that the agency failed to show that such
material is "generally protected in civil discovery for reasons similar to those
asserted in the FOIA context." (250)
While the breadth of this privilege is still not fully established, a realty
appraisal generated by the government in the course of soliciting buyers for its
property has been held to fall squarely within it, (251) as have documents containing
communications between agency personnel, potential buyers, and real estate
agents concerning a proposed sale of government-owned real estate, (252) an agency's
background documents which it used to calculate its bid in a "contracting out"
procedure, (253) and portions of inter-agency cost estimates prepared by the
government for use in the evaluation of construction proposals submitted by private
contractors. (254) Quite clearly, however, purely legal memoranda drafted to assist
contract-award deliberations are not encompassed by this privilege. (255)
The Supreme Court in United States v. Weber Aircraft Corp. (256) held that
Exemption 5 incorporates the special privilege protecting witness statements
generated during Air Force aircraft accident investigations. (257) Broadening the
holding of Merrill that a privilege "mentioned in the legislative history of Exemption 5
is incorporated by the exemption," (258) the Court held in Weber Aircraft that this long-recognized civil discovery privilege, even though not specifically mentioned in that
legislative history, nevertheless falls within Exemption 5. (259) The "plain statutory
language" (260) and the clear congressional intent to sustain claims of privilege when
confidentiality is necessary to ensure efficient governmental operations (261) support
this result. (262) This privilege also has been applied to protect statements made in
Inspector General investigations. (263)
Similarly, in Hoover v. Department of the Interior, the Court of Appeals for the
Fifth Circuit recognized an Exemption 5 privilege based on Federal Rule of Civil
Procedure 26(b)(4), which limits the discovery of reports prepared by expert
witnesses. (264) The document at issue in Hoover was an appraiser's report prepared
in the course of condemnation proceedings. (265) In support of its conclusions, the Fifth
Circuit stressed that such a report would not have been routinely discoverable and
that premature release would jeopardize the bargaining position of the
Most recently, in Judicial Watch, Inc. v. Department of Justice, the D.C. Circuit
applied the presidential communications privilege -- a privilege it had first
recognized just seven years earlier (267) -- under Exemption 5 of the FOIA to protect
Department of Justice records regarding the President's exercise of his
constitutional power to grant pardons. (268) This privilege, which protects
communications among the President and his advisors, is unique among those
recognized under Exemption 5 of the FOIA in that it is "'inextricably rooted in the
separation of powers under the Constitution.'" (269) Although similar to the deliberative
process privilege, it is broader in its coverage because it "'applies to documents in
their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.'" (270) One significant issue not yet ultimately resolved, however, is
whether the privilege protects all records created within an agency to assist the
President in the exercise of his nondelegable constitutional duties or is limited to
those records that are "solicited and received by the President or his immediate
advisers in the Office of the President." (271)
In the wake of the Supreme Court's decision three years ago in Department of
the Interior v. Klamath Water Users Protective Association, (272) the law is somewhat
unsettled as to documents generated in the course of settlement negotiations. (273) So
long as the underlying litigation in which the settlement communications were
generated does not involve competition between or among outside parties over
limited resources, or anything else of relative value, the Supreme Court's ruling in
Klamath should not affect the Exemption 5 threshold analysis directly. (274) In any case
involving multiple outside parties competing for a government benefit, however,
Klamath may bar the use of Exemption 5 to withhold settlement communications
between such outside parties and the government as a threshold matter. (275)
Prior to Klamath, several courts had held that communications reflecting
settlement negotiations between the government and an adverse party, which are
of necessity exchanged between the parties, could not be protected as "intra-agency" memoranda under Exemption 5. (276) However, several of those courts also
recognized the great difficulties inherent in such a harsh Exemption 5 construction,
especially in light of the "logic and force of [the] policy plea" (277) that the government's
indispensable settlement mechanism can be impeded by such a result. (278)
Accordingly, one court has held that notes of an agency employee that
reflected positions taken and issues raised in treaty negotiations had been properly
withheld pursuant to Exemption 5 because their release would harm the agency's
negotiation process. (279) Other courts have found the attorney work-product and
deliberative process privileges to be properly invoked for documents prepared by
agency personnel that reflected the substance of meetings between adverse parties
and agency personnel in preparation for eventual settlement of a case. (280) Most
significantly, one court explicitly applied the settlement privilege to affirm the
withholding of settlement documents under Exemption 4. (281) Furthermore, Justice
Brennan, noting the need for protecting attorney work-product information,
specifically cited as a particular disclosure danger the ability of adverse parties to
"gain insight into the agency's general strategic and tactical approach to deciding
when suits are brought . . . and on what terms they may be settled." (282)
Finally, and most significantly, during the past year the United States Court of
Appeals for the Sixth Circuit was presented in Goodyear Tire & Rubber Co. v. Chiles
Power Supply, Inc., a non-FOIA case, with the specific question of whether to
recognize a civil discovery privilege for documents exchanged between parties in
the course of settlement negotiations. (283) In making this determination, this appellate
court quite properly considered the Supreme Court's directive to federal courts to
recognize new discovery privileges when "reason and experience" show that there is
a sufficiently strong public interest to be served by doing so. (284) Following this
guidance by taking cognizance of the numerous and significant problems raised by
the potential availability of settlement negotiation documents and of the inherent
need to protect the confidentiality of such exchanges, the Sixth Circuit explicitly
recognized a discovery privilege for documents exchanged between parties
engaged in settlement negotiations. (285) This ruling, which thus firmly establishes the
settlement-negotiation privilege, now provides vital precedential support for all
courts to employ it whenever applicable under Exemption 5. (286)
It is noteworthy in this regard that while earlier cases had not gone quite so
far as to squarely recognize a settlement-negotiation privilege identified as such,
many had ruled that parties making discovery demands for settlement
communications would be required to make heightened, or "particularized,"
showings of relevancy in order to obtain them in civil discovery. (287) Because
settlement communications subject to such a discovery standard would not be
"routinely and normally discoverable" under the test enunciated by the Supreme
Court in FTC v. Grolier Inc. (288) and United States v. Weber Aircraft Corp., (289) they
should also be protectible under Exemption 5 provided that the threshold
requirement of the exemption is fully satisfied. (290)
Accordingly, in light of this authoritative array of supporting precedent and
the Sixth Circuit's express recognition of the settlement-negotiation privilege in
Goodyear Tire -- much like the D.C. Circuit's recognition of the aircraft accident
investigation privilege forty years earlier in Machin (291) -- such information may be
withheld by agencies at the administrative level under Exemption 5, within the
threshold conditions imposed by Klamath, (292) especially where disclosure would be
particularly damaging to the government's ability to settle cases -- but care should of
course be taken to maximize the prospects of further favorable case law
development on this important FOIA principle. (293)
Because Exemption 5 incorporates virtually all civil discovery privileges, courts
also have recognized the applicability of other privileges, whether traditional or
new, in the FOIA context. (294) Among those other privileges now recognized for
purposes of the FOIA are the confidential report privilege, (295) the presentence report
privilege, (296) the critical self-evaluative privilege, (297) the expert materials privilege, (298)
and the federal mediation privilege. (299)
Lastly, while it is evident that courts will continue to apply such civil discovery
privileges under Exemption 5 of the FOIA, the mere fact that a particular privilege
has been recognized by state law will not necessarily mean that it will be
recognized by a federal court. (300)
1. 5 U.S.C. Â§ 552(b)(5) (2000).
2. See, e.g., United States Dep't of Justice v. Julian, 486 U.S. 1, 19 n.1 (Scalia, J.,
dissenting on a point not reached by the majority) (discussing the "most natural
reading" of the threshold and the "problem[s]" inherent in reading it in that way).
3. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see FTC v. Grolier Inc., 462
U.S. 19, 26 (1983); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir.
1987); see also Attorney General's Memorandum for Heads of All Federal
Departments and Agencies Regarding the Freedom of Information Act (Oct. 12,
2001), reprinted in FOIA Post (posted 10/15/01) (highlighting importance of protecting
4. Fed. Open Mkt. Comm. v. Merrill, 443 U.S. 340, 354 (1979).
5. See United States v. Weber Aircraft Corp., 465 U.S. 792, 800 (1984); see also FOIA
Update, Vol. V, No. 4, at 6. But see also Burka v. HHS, 87 F.3d 508, 517 (D.C. Cir. 1996)
("[T]o justify nondisclosure under Exemption 5, an agency must show that the type of
material it seeks to withhold is generally protected in civil discovery for reasons
similar to those asserted by the agency in the FOIA context.").
6. Martin, 819 F.2d at 1185; see also Badhwar v. United States Dep't of the Air Force,
829 F.2d 182, 184 (D.C. Cir. 1987) ("Exemption 5 requires the application of existing
rules regarding discovery.").
7. See Burka v. HHS, 87 F.3d 508, 517 (D.C. Cir. 1996); see also Julian, 486 U.S. at 13
(1988) (holding that presentence report privilege, designed to protect report
subjects, cannot be invoked against them as first-party requesters).
8. See id.
9. Sears, 421 U.S. at 149 n.16.
10. H.R. Rep. No. 89-1497, at 10 (1966), reprinted in 1966 U.S.C.C.A.N. 2418.
11. See Grolier, 462 U.S. at 27; see also FOIA Update, Vol. V, No. 4, at 6.
12. See Grolier, 462 U.S. at 28; Sears, 421 U.S. at 149; see also, e.g., Martin, 819 F.2d
at 1184 ("[T]he needs of a particular plaintiff are not relevant to the exemption's
applicability."); Swisher v. Dep't of the Air Force, 660 F.2d 369, 371 (8th Cir. 1981)
(observing that applicability of Exemption 5 is in no way diminished by fact that
privilege may be overcome by showing of "need" in civil discovery context); Bilbrey v.
United States Dep't of the Air Force, No. 00-0539, slip op. at 11 (W.D. Mo. Jan. 30,
2001) ("Once a government agency makes a prima facie showing of privilege, the
analysis under FOIA Exemption 5 ceases, and does not proceed to the balancing of
interests."), aff'd, No. 01-1789, 2001 WL 1222471, at *1 (8th Cir. Oct. 16, 2001)
(unpublished table decision). But see In re Diet Drugs Prods. Liability Litig., No. 1203,
2000 WL 1545028, at *4 (E.D. Pa. Oct. 12, 2000) (mistakenly stating that a court must
balance the "relative interests of the parties" in determining the applicability of the
deliberative process privilege under Exemption 5).
13. See Weber Aircraft, 465 U.S. at 801-02 ("We do not think that Congress could
have intended that the weighty policies underlying discovery privileges could be so
easily circumvented."); see also Martin, 819 F.2d at 1186 (Where a requester is
"unable to obtain those documents using ordinary civil discovery methods, . . . FOIA
should not be read to alter that result."); cf. Nat'l Ass'n of Criminal Def. Lawyers, No.
97-372, slip op. at 8-10 (D.D.C. July 22, 1998) (holding that although agency made
limited disclosures of report pursuant to criminal discovery rules, it was protectible
because it was not "normally available by law" to party in litigation with agency).
14. See H.R. Rep. No. 93-1380, at 13 (1974); see also FOIA Update, Vol. X, No. 2, at 4.
15. See Julian, 486 U.S. at 13 (holding that presentence report privilege, designed to
protect reports' subjects, cannot be invoked against them as first-party requesters);
see also United States v. Kipta, No. 97-638-1, 2001 WL 477153, at *1 (N.D. Ill. May 3,
2001) (following Julian).
16. See Sears, 421 U.S. at 149.
17. See United States Dep't of Justice v. Julian, 486 U.S. 1, 19 n.1 (1988) (Scalia, J.,
dissenting on a point not reached by the majority) (observing that "the most natural
meaning of the phrase 'intra-agency memorandum' is a memorandum that is
addressed both to and from employees of a single agency -- as opposed to an 'inter-agency memorandum,' which would be a memorandum between employees of two
18. 532 U.S. 1 (2001); see also FOIA Post, "Supreme Court Rules in Exemption 5 Case"
(posted 4/4/01) (discussing meaning, contours, and implications of Klamath
19. Klamath, 532 U.S. at 12.
20. Id. at 12 n.4.
21. Id. at 16.
22. See FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01)
(analyzing differences between Supreme Court's and Ninth Circuit's decisions).
23. Klamath Water Users Protective Ass'n v. Department of the Interior, 189 F.3d
1034, 1038 (9th Cir. 1999), aff'd, 532 U.S. 1 (2001).
24. See FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01)
(emphasizing that "the Supreme Court ultimately applied an Exemption 5 threshold
test rooted in . . . competition . . . not the Ninth Circuit's more general test that
disqualified an outside party due to the existence of a self-interest alone").
25. Klamath, 532 U.S. at 12.
26. Id. (emphasis added).
27. See id. at 12 n.4 (declining to overrule Pub. Citizen, Inc. v. United States Dep't of
Justice, 111 F.3d 168, 170-72 (D.C. Cir. 1997), and Ryan v. Dep't of Justice, 617 F.2d 781,
790 (D.C. Cir. 1980), both of which "arguably extend beyond" the "typical examples" of
cases of consultants whose communications have been considered "intra-agency").
28. See FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01)
(pointing out that Public Citizen and Ryan, "and their potential progeny, stand apart
from what clearly was rejected under the Court's bottom-line threshold test").
29. See Burt A. Braverman & Francis J. Chetwynd, Information Law: Freedom of
Information, Privacy, Open Meetings, and Other Access Laws Â§ 9-3.1 (1985 & Supp.
30. See, e.g., Durns v. Bureau of Prisons, 804 F.2d 701, 704 n.5 (D.C. Cir. 1986)
(employing "a functional rather than a literal test in assessing whether memoranda
are 'inter-agency or intra-agency'"), cert. granted, judgment vacated on other
grounds & remanded, 486 U.S. 1029 (1988).
31. See Klamath, 532 U.S. at 9-11 (discussing cases involving communications from
"outside consultants"); see also FOIA Post, "Supreme Court Rules in Exemption 5
Case" (posted 4/4/01) (pointing out that such "outside consultant" decisions "still
stand as sound precedents for the satisfaction of Exemption 5's threshold
32. 617 F.2d 781 (D.C. Cir. 1980).
33. Id. at 790; see also Hooper v. Bowen, No. 88-1030, slip op. at 18 (C.D. Cal. May 24,
1989) ("courts have regularly construed this threshold test expansively rather than
hypertechnically"); FOIA Update, Vol. III, No. 3, at 10 ("FOIA Counselor: Protecting
'Outside' Advice"); cf. Nat'l Ass'n of Criminal Def. Lawyers v. United States Dep't of
Justice, No. 97-372, slip op. at 7-8 (D.D.C. July 22, 1998) (protecting agency-generated
draft report circulated to nongovernmental parties for review and comment).
34. See Ryan, 617 F.2d at 790 (protecting recommendations on judicial nomination
process made by senators to Attorney General).
35. See Tigue v. United States Dep't of Justice, 312 F.3d 70, 78-79 (2d Cir. 2002)
(protecting recommendations from a United States Attorney's Office to the Webster
Commission, which was established to serve "as a consultant to the IRS").
36. See Citizens for Pa.'s Future v. United States Dep't of the Interior, 218 F.R.D. 441,
446-47 (M.D. Pa. 2003) (protecting documents exchanged between the Department of
the Interior and the Pennsylvania Department of Environmental Protection pursuant
to a joint regulatory mandate) (appeal pending); see also Nat'l Ass'n of Home
Builders v. Norton, 309 F.3d 26, 39 (D.C. Cir. 2002) (holding that particular documents
provided by state agency to Department of the Interior had not contributed to
Department's deliberative process and therefore could not be protected by
Exemption 5, but not disagreeing that such documents provided by a state agency
to a federal agency could meet Exemption 5's threshold); cf. United States v. Allsteel,
Inc., No. 87-C-4638, 1988 WL 139361, at *2 (N.D. Ill. Dec. 21, 1988) (non-FOIA case
protecting documents exchanged between federal and state co-regulators).
37. See Hertzberg v. Veneman, 273 F. Supp. 2d 67, 76 n. 2 (D.D.C. 2003) (holding that
"witness statements from Forest Service contractor employees may be considered
'inter-agency or intra-agency' for the purpose of Exemption 5," citing Klamath, 532
U.S. at 10-11).
38. Durns, 804 F.2d at 704 & n.5 (applying Exemption 5 to presentence report
prepared by probation officer for sentencing judge, with copies provided to Parole
Commission and Bureau of Prisons); cf. Badhwar v. United States Dep't of the Air
Force, 829 F.2d 182, 184-85 (D.C. Cir. 1987) (upholding application of Exemption 5 --
without discussing "inter-agency or intra-agency" threshold -- to material supplied by
39. Soucie v. David, 448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971); cf. CNA Fin. Corp. v.
Donovan, 830 F.2d 1132, 1161 (D.C. Cir. 1987) (recognizing importance of outside
consultants in deliberative process privilege context).
40. Hoover v. United States Dep't of the Interior, 611 F.2d 1132, 1138 (5th Cir. 1980)
(protecting appraiser's report solicited by agency); see also, e.g., Lead Indus. Ass'n
v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979) (protecting consultant's report concerning safe
levels of workplace lead exposure); Wu v. Nat'l Endowment for the Humanities, 460
F.2d 1030, 1032 (5th Cir. 1972) (protecting recommendations of volunteer consultants);
Citizens Progressive Alliance v. United States Bureau of Indian Affairs, 241 F. Supp.
2d 1342, 1355 (D.N.M. 2002) (protecting recommendations provided by private
company hired by BIA); cf. Rashid v. HHS, No. 98-0898, slip op. at 6-7 (D.D.C. Mar. 2,
2000) (holding correspondence sent by Assistant United States Attorney to expert
witness, requesting evaluation of evidence in case, protectible under attorney work-product privilege); Gen. Elec. Co. v. EPA, 18 F. Supp. 2d 138, 142 (D. Mass. 1998)
("[L]etters from a federal agency to a state agency that solicit or respond to the
state agency's input in an effort to coordinate and tailor joint regulatory efforts may
be no less a part of the federal agency's deliberative processes than the state
agency's recommendations or advice when acted upon at the federal level."); Judicial
Watch, Inc. v. Comm'n on United States-Pac. Trade & Inv. Policy, No. 97-0099, slip op.
at 9 (D.D.C. Sept. 30, 1999) (protecting recommendations from individuals outside
government regarding proposed executive branch appointees); S.A. Ludsin & Co. v.
SBA, No. 96-CV-5972, 1998 WL 355394, at **2-3 (E.D.N.Y. Apr. 2, 1998) (protecting
documents prepared by paid outside consultants); Hooper, No. 88-1030, slip op. at
17-19 (C.D. Cal. May 24, 1989) (protecting records originating with private insurance
companies which acted as "fiscal intermediaries" for Health Care Financing
Administration); Am. Soc'y of Pension Actuaries v. Pension Benefit Guar. Corp., 3
Gov't Disclosure Serv. (P-H) Â¶ 83,182, at 83,846 (D.D.C. June 14, 1983) (protecting
documents prepared by paid outside consultants).
41. 917 F.2d 571, 574-75 (D.C. Cir. 1990); see also Texas v. ICC, 889 F.2d 59, 61 (5th Cir.
1989) (holding that a document sent from an agency to an outside party did not meet
the threshold standard because it was "a mere request for information, not a
consultation or a solicitation of expert advice"); Paisley v. CIA, 712 F.2d 686, 699 n.54
(D.C. Cir. 1983) (presaging Dow Jones by suggesting that agency responses to
congressional requests for information may not constitute protectible "inter-agency"
communications); cf. Hennessey v. United States Agency for Int'l Dev., No. 97-1133,
1997 WL 537998, at *3 (4th Cir. Sept. 2, 1997) (finding no "intra-agency 'deliberative
process,'" as agency intended all interested parties to be involved in decision).
42. See Judicial Watch, Inc. v. United States Dep't of Energy, No. 01-0981, 2004 WL
635180 at **29-30 (D.D.C. Mar. 31, 2004) (relying on Dow Jones, inter alia, to find that
commission is not an "agency"), motion for reconsideration denied & stay pending
appeal granted (May 26, 2004).
43. 410 U.S. 74, 75, 85 (1973) (emphasis added).
44. No. 03-5098, 2004 WL 980826, at *11 (D.C. Cir. May 7, 2004).
45. See, e.g., McDonnell v. Clinton, No. 97-1535, 1997 WL 33321085, at *1 (D.D.C. July
3, 1997) (holding that the "Office of the President, including its personal staff . . .
whose sole function is to advise and assist the President, does not fall within the
definition of agency" (citing Kissinger v. Reporters Comm. for Freedom of the Press,
445 U.S. 136, 150-55 (1980))), aff'd, 132 F.3d 1481 (D.C. Cir. 1997) (unpublished table
46. Cf. AFL-CIO v. FEC, 177 F. Supp. 2d 48, 64 (D.D.C. 2002) (suggesting that FOIA
might be "unconstitutional as applied" in particular context, while not reaching issue
due to "judicial preference for resolving matters on non-constitutional grounds"), aff'd
on other grounds, 333 F.2d 168 (D.C. Cir. 2003); accord Mink, 410 U.S. at 85 (avoiding
constitutional infirmity, albeit sub silentio, through nondisclosure result).
47. 889 F.2d 1118 (D.C. Cir. 1989).
48. Id. at 1123-24.
49. Id. (citing CNA, 830 F.2d at 1161); see also Weinstein v. HHS, 977 F. Supp. 41, 44-45 (D.D.C. 1997) (protecting evaluations by outside scientific experts utilized in "NIH's
competitive grant application process"). But see Texas, 889 F.2d at 62 (embracing
old "functional test" but finding it not satisfied for documents submitted by private
party not standing in any consultative or advisorial role with agency).
50. 111 F.3d 168 (1997).
51. 44 U.S.C. Â§Â§ 2201-07 (2000).
52. 111 F.3d at 171.
53. 532 U.S. at 12 n.4; see also FOIA Post, "Supreme Court Rules in Exemption 5
Case" (posted 4/4/01).
54. See FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01)
(observing in this regard that Public Citizen and Ryan, "and their potential progeny,
stand apart from" what the Supreme Court rejected in Klamath); see also Bangor
Hydro-Elec. Co. v. United States Dep't of the Interior, No. 94-0173-B, slip op. at 5 (D.
Me. Apr. 18, 1995) (presaging Klamath in holding that intra-agency threshold was not
satisfied in case where party sought governmental benefit at expense of others'
interests, and where agency "did not 'call upon' the [Penobscot] Nation to 'assist in
internal decision-making'"; instead, "the Nation 'approached the government with
their own interest in mind'" (quoting County of Madison v. United States Dep't of
Justice, 641 F.2d 1036, 1042 (1st Cir. 1981))).
55. 180 F. Supp. 2d 1184 (D. Colo. 2001).
56. See id. at 1191.
57. See id.; see also Flathead Joint Bd. of Control v. United States Dep't of Interior,
309 F. Supp. 1217, 1223-24 (D. Mont. 2004) (limiting discussion of Klamath's threshold
test to its first component and then confusingly ordering disclosure, apparently
based on mistaken understanding of waiver as result of prior disclosure) (appeal
58. 237 F. Supp. 2d 17 (D.D.C. 2002).
59. See id. at 25-27.
60. See id. at 27 (citing Klamath, 532 U.S. at 10-11).
61. Id. (quoting Klamath, 532 U.S. at 14).
63. See Klamath, 532 U.S. at 12 ("[T]he dispositive point is that the apparent object
of the Tribe's communications is a decision by an agency of the Government to
support a claim by the Tribe that is necessarily adverse to the interests of
competitors."); see also FOIA Post, "Supreme Court Rules in Exemption 5 Case"
(posted 4/4/01) (explaining both content and contours of Klamath test).
64. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975); see also Attorney
General's Memorandum for Heads of All Federal Departments and Agencies
Regarding the Freedom of Information Act (Oct. 12, 2001) [hereinafter Attorney
General Ashcroft's FOIA Memorandum], reprinted in FOIA Post (posted 10/15/01)
(emphasizing importance of deliberative process privilege in protecting
decisionmakers' ability to receive "confidential advice and counsel").
65. See, e.g., Russell v. Dep't of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982);
Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980); Jordan
v. United States Dep't of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978) (en banc);
Heggestad v. United States Dep't of Justice, 182 F. Supp. 2d 1, 12 (D.D.C. 2000)
(protecting memoranda containing recommendations based on perjured testimony,
finding that they "have no probative value to the public since they are based on
misrepresentations"); AFGE v. HHS, 63 F. Supp. 2d 104, 108 (D. Mass. 1999) (holding
that release of predecisional documents "could cause harm by providing the public
with erroneous information"), aff'd, No. 99-2208, 2000 U.S. App. LEXIS 10993, at *3 (1st
Cir. May 18, 2000). But see ITT World Communications, Inc. v. FCC, 699 F.2d 1219,
1237-38 (D.C. Cir. 1983) (dictum) (suggesting that otherwise exempt predecisional
material "may" be ordered released so as to explain actual agency positions), rev'd
on other grounds, 466 U.S. 463 (1984).
66. Sears, 421 U.S. at 150; see also Missouri ex rel. Shorr v. United States Army
Corps of Eng'rs, 147 F.3d 708, 710 (8th Cir. 1998) ("The purpose of the deliberative
process privilege is to allow agencies freely to explore alternative avenues of action
and to engage in internal debates without fear of public scrutiny.").
67. See, e.g., Nat'l Wildlife Fed'n v. United States Forest Serv., 861 F.2d 1114, 1119
(9th Cir. 1988) ("[T]he ultimate objective of exemption 5 is to safeguard the
deliberative process of agencies, not the paperwork generated in the course of that
process."); Schell v. HHS, 843 F.2d 933, 940 (6th Cir. 1988) ("Because Exemption 5 is
concerned with protecting the deliberative process itself, courts now focus less on
the material sought and more on the effect of the material's release."); Dudman
Communications Corp. v. Dep't of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987)
("Congress enacted Exemption 5 to protect the executive's deliberative processes --
not to protect specific materials."); Greenberg v. United States Dep't of Treasury, 10
F. Supp. 2d 3, 16 n.19 (D.D.C. 1998) (concluding that Exemption 5 "is not limited to
preventing embarrassment or 'chilling' of the individual authors of deliberative
documents" but is designed to prevent chilling of agency deliberations); Chem. Mfrs.
Ass'n v. Consumer Prod. Safety Comm'n, 600 F. Supp. 114, 117 (D.D.C. 1984) (finding
that ongoing regulatory process would be subject to "delay and disrupt[ion]" if
preliminary analyses were prematurely disclosed). But see Moye, O'Brien, O'Rourke,
Hogan & Pickert v. Nat'l R.R. Passenger Corp., No. 6:02-CV-126-ORL, 2003 WL
21146674, at *16 (M.D. Fla. May 13, 2003) (concluding inexplicably that in multi-level
decisional process deliberative process privilege applies only where there is
evidence that final decisionmaker has personally reviewed documents in question)
(appeal pending); cf. Bangor Hydro-Elec. Co. v. United States Dep't of the Interior,
No. 94-0173-B, slip op. at 6 (D. Me. Apr. 18, 1995) (holding deliberative process
privilege inapplicable when by regulation entire decisionmaking process is open to
all interested parties) (alternative holding).
68. Wolfe v. HHS, 839 F.2d 768, 775 (D.C. Cir. 1988) (en banc).
69. See id. at 776; see also Missouri, 147 F.3d at 710-11 (protecting intra-agency
memorandum commenting on draft environmental impact statement and finding
that "[a]lthough [the National Environmental Policy Act] contemplates public
participation . . . NEPA's statutory language specifically indicates that disclosure to
the public is to be in accord with FOIA, which includes Exemption 5"); Nat'l Wildlife,
861 F.2d at 1120-21 (draft forest plans and preliminary draft environmental impact
statements protected); Chem. Mfrs., 600 F. Supp. at 118 (preliminary scientific data
generated in connection with study of chemical protected).
70. See, e.g., Fed. Open Mkt. Comm. v. Merrill, 443 U.S. 340, 360 (1979); May v. Dep't
of the Air Force, 777 F.2d 1012, 1014-15 (5th Cir. 1985); Cuccaro v. Sec'y of Labor, 770
F.2d 355, 357 (3d Cir. 1985); Judicial Watch of Fla., Inc. v. United States Dep't of
Justice, 102 F. Supp. 2d 6, 16 (D.D.C. 2000) (rejecting specious assertion that
deliberative process privilege "expires" after deliberations have ended and relevant
decision has been made); see also FOIA Update, Vol. XVI, No. 3, at 5 (dispelling
"common misconception" about Exemption 5 on this point).
71. See Sears, 421 U.S. at 151 n.18 (extending protection to records that are part of
decisionmaking process even where process does not produce actual decision by
agency); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 13 (D.D.C. 1995) (holding that
to release deliberative documents because no final decision was issued would be
"exalting semantics over substance"), aff'd on other grounds, 76 F.3d 1232 (D.C. Cir.
72. See, e.g., AGS Computers, Inc. v. United States Dep't of Treasury, No. 92-2714,
slip op. at 13 (D.N.J. Sept. 16, 1993) (holding that predecisional character is not lost
through passage of time); Founding Church of Scientology v. Levi, 1 Gov't Disclosure
Serv. (P-H) Â¶ 80,155, at 80,374 (D.D.C. Aug. 12, 1980) ("There is nothing in the language
of the provision to suggest that passage of time without more derogates from the
exempt status of the deliberative material.").
73. See Mapother v. Dep't of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993) ("The
deliberative process privilege protects materials that are both predecisional and
deliberative." (citing Petroleum Info. Corp. v. United States Dep't of the Interior, 976
F.2d 1429, 1434 (D.C. Cir. 1992))).
74. Jordan, 591 F.2d at 774.
75. Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).
76. See Coastal States, 617 F.2d at 866.
77. Id. at 868; see also Providence Journal Co. v. United States Dep't of the Army,
981 F.2d 552, 559 (1st Cir. 1992) (protecting IG's recommendations even though
decisionmakers were not obligated to follow them); Formaldehyde Inst. v. HHS, 889
F.2d 1118, 1123 (D.C. Cir. 1989) (protecting recommendations on suitability of article
for publication, though decision on "whether and where" to publish article had not
yet been made); Greenberg, 10 F. Supp. 2d at 17 (stating that "an evaluation of the
legal status" of a case would be protected, but an "instruction from a senior to a
junior official as to what legal action should be taken -- a final decision . . . does not
merit Exemption 5 protection"); Horsehead Indus. v. EPA, No. 94-1299, slip op. at 14
(D.D.C. Oct. 1, 1996) ("In determining whether material is predecisional in nature,
courts must look to see what role the material played in the decisionmaking process
. . . . A statement of an opinion by an agency official or preliminary findings reported
by a public affairs official do not necessarily constitute a statement of EPA policy or
final opinion that has the force of law."); Knowles v. Thornburgh, No. 90-1294, slip op.
at 5-6 (D.D.C. Mar. 11, 1992) (holding information generated during process preceding
President's ultimate decision on application for clemency was predecisional); cf. Sw.
Ctr. for Biological Diversity v. USDA, 170 F. Supp. 2d 931, 940 (D. Ariz. 2000) (rejecting
as "tenuous" defendant's position that releasing information would "result in humans
disturbing nesting goshawks," which in turn would alter agency's deliberative
process by affecting results of scientific study), aff'd on other grounds, 314 F.3d 1060
(9th Cir. 2002); Animal Legal Def. Fund, Inc. v. Dep't of the Air Force, 44 F. Supp. 2d
295, 299 (D.D.C. 1999) (rejecting privilege claim because agency "utterly failed to
specify the role played by each withheld document" in policy-formulation process).
78. Sears, 421 U.S. at 151 n.18; see also Schell, 843 F.2d at 941 ("When specific advice
is provided, . . . it is no less predecisional because it is accepted or rejected in
silence, or perhaps simply incorporated into the thinking of superiors for future
use."); Hamilton Sec. Group, Inc. v. HUD, 106 F. Supp. 2d 23, 30 (D.D.C. 2000)
(protecting a draft audit report that was never reviewed by an agency
decisionmaker; holding that "only those materials that are reviewed and approved
by the District Inspector General represent the agency's final position"), aff'd, No. 00-5331, 2001 WL 238162, at *1 (D.C. Cir. Feb. 23, 2001) (per curiam); Greenberg, 10 F.
Supp. 2d at 16 (rejecting argument that documents were not deliberative because
not actually relied upon, observing that "[i]f the author had known that the notes
discussing the proposed questions and issues would be subject to FOIA disclosure
if not actually used, the author likely would have been more cautious in what he or
she recommended"); Brooks v. IRS, No. CV-F-96-6284, 1997 U.S. Dist LEXIS 21075, at
**23-24 (E.D. Cal. Nov. 17, 1997) ("governmental privilege does not hinge on whether
or not the District Counsel relied on or accorded any weight to the information at
issue in rendering its final decision"); Perdue Farms, Inc. v. NLRB, No. 2:96-CV-27-BO(1), 1997 U.S. Dist. LEXIS 14579, at *17 (E.D.N.C. Aug. 5, 1997) ("Although some
[deliberative] processes do not ripen into agency decisions, this does not preclude
application of the deliberative process privilege."); Hunt v. United States Marine
Corp., 935 F. Supp. 46, 51 (D.D.C. 1996) (agency need not point specifically to final
decision made); Chem. Mfrs., 600 F. Supp. at 118 ("[t]here should be considerable
deference to the [agency's] judgment as to what constitutes . . . 'part of the agency
give-and-take -- of the deliberative process -- by which the decision itself is made'"
(quoting Vaughn, 523 F.2d at 1144)); Pfeiffer v. CIA, 721 F. Supp. 337, 340 (D.D.C. 1989)
(court "must give considerable deference to the agency's explanation of its
decisional process, due to agency's expertise"). But see Carter v. United States Dep't
of Commerce, 186 F. Supp. 2d 1147, 1153-54 (D. Or. 2001) (holding that adjusted
census data not examined by decisionmaker "cannot be said to have contributed" to
decisionmaking process; and rejecting argument that data were nevertheless
predecisional because agency was actively considering using them in future), aff'd,
307 F.3d 1084 (9th Cir. 2002); cf. Maricopa Audubon Soc'y v. United States Forest
Serv., 108 F.3d 1089, 1094 (9th Cir. 1997) (oddly declaring Supreme Court
pronouncement to be merely "cautionary dictum").
79. See, e.g., Casad v. HHS, 301 F.3d 1247, 1252 (10th Cir. 2002) (holding that
deliberative process privilege protects redacted portions of "summary statements"
created prior to NIH's research grant funding decisions); Tarullo v. DOD, 170 F. Supp.
2d 271, 277 (D. Conn. 2001) (rejecting an argument that a document was not
predecisional, instead finding that it was merely "a description of how the agency
performed under its then-existing policy," and concluding that although the
memorandum "contains some objective description of the facts providing a basis for
. . . opinions, it consists primarily of specific subjective recommendations about
future agency conduct and policy"); Judicial Watch, Inc. v. Reno, No. 00-0723, slip op.
at 6-7 (D.D.C. Mar. 30, 2001) (protecting communications regarding "continuing and
follow-up issues" resulting from decision to repatriate Cuban emigré Elian Gonzalez);
Felsen v. HHS, No. 95-975, slip op. at 90 (D. Md. Sept. 30, 1998) ("agency need not
identify any specific decision, but merely must establish 'what deliberative process is
involved, and the role played by the documents in issue in the course of that
process'" (quoting Coastal States, 617 F.2d at 868)); Dayton Newspapers, Inc. v.
United States Dep't of the Navy, No. C-3-95-328, slip op. at 55-56 (S.D. Ohio Sept. 12,
1996) (protecting communications that were postdecisional with respect to a
specific agency decision but predecisional "in relation to their impact on broader
policy decisions"); Md. Coalition for Integrated Educ. v. United States Dep't of Educ.,
No. 89-2851, slip op. at 6 (D.D.C. July 20, 1992) (finding material prepared during
compliance review that goes beyond critique of reviewed program to discuss
broader agency policy to be part of deliberative process), appeal dismissed
voluntarily, No. 92-5346 (D.C. Cir. Dec. 13, 1993); Wash. Post Co. v. DOD, No. 84-2949,
1987 U.S. Dist LEXIS 16108, at *29 (D.D.C. Feb. 25, 1987) (holding that document
generated in continuing process of examining agency policy falls within deliberative
process); Ashley v. United States Dep't of Labor, 589 F. Supp. 901, 908-09 (D.D.C. 1983)
(holding that documents containing agency self-evaluations need not be shown to
be part of clear process leading up to "assured" final decision so long as agency can
demonstrate that documents were part of some deliberative process). Compare
Parke, Davis & Co. v. Califano, 623 F.2d 1, 6 (6th Cir. 1980) (holding that document
must be "essential element" of deliberative process), with Schell, 843 F.2d at 939-41
(appearing to reject, at least implicitly, "essential element" test), and AFGE, 63 F.
Supp. at 108-09 (rejecting proposed "essential functions" test). But see Maricopa, 108
F.3d at 1094 (dictum) ("agency must identify a specific decision where document is
pre-decisional"); Senate of P.R. v. United States Dep't of Justice, 823 F.2d 574, 585
(D.C. Cir. 1987) (suggesting agency must specify final "decisions to which the advice
or recommendations . . . contributed"); Cook v. Watt, 597 F. Supp. 545, 550-52 (D.
Alaska 1983) (confusingly refusing to extend privilege to documents originating in
deliberative process merely because process held in abeyance and no decision
80. 926 F.2d 1192, 1196 (D.C. Cir. 1991); see also Taylor v. Dep't of the Treasury, No.
C90-1928, slip op. at 3-4 (N.D. Cal. Jan. 20, 1991) (stating that deliberative process
privilege covers "communications leading to the actual enactment of a law, not
merely communications preceding a decision to commence the process of amending
81. See Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 188 (1975);
Bureau of Nat'l Affairs, Inc. v. United States Dep't of Justice, 742 F.2d 1484, 1497 (D.C.
Cir. 1984); Defenders of Wildlife v. United States Dep't of the Interior, No. 03-1192,
2004 WL 842374, at **11-12 (D.D.C. Apr. 13, 2004) (protecting documents relating to
ethics investigation that were prepared by Department of the Interior and given to
Office of Government Ethics, which had final authority over investigation). Compare
Blazar v. OMB, No. 92-2719, slip op. at 14 (D.D.C. Apr. 15, 1994) (finding
recommendations made from OMB to the President to be predecisional), with Am.
Soc'y of Pension Actuaries v. IRS, 746 F. Supp. 188, 192 (D.D.C. 1990) (ordering
disclosure after finding that IRS's budget assumptions and calculations were "relied
upon by government" in making final estimate for President's budget).
82. Judicial Watch, 102 F. Supp. 2d at 14 (protecting notes taken by Attorney
General which she did not share with others).
83. See Enviro Tech Int'l, Inc. v. EPA, No. 02 C 4650, slip op. at 13-14 (N.D. Ill. Mar. 11,
2003) (protecting documents which contained EPA recommendations on workplace
exposure limits to n-Propyl Bromide, despite fact that EPA lacks statutory authority
to regulate such exposure limits); cf. Weissman v. CIA, 565 F.2d 692, 695-96 (D.C. Cir.
1977) (holding that CIA cannot use Exemption 7 to protect documents generated in
course of law enforcement activity for which it has no statutory authorization).
84. See, e.g., Taxation With Representation Fund v. IRS, 646 F.2d 666, 677-78 (D.C.
85. See, e.g., Brinton v. Dep't of State, 636 F.2d 600, 605 (D.C. Cir. 1980); Nissei
Sangyo Am., Ltd. v. IRS, No. 95-1019, 1997 U.S. Dist. LEXIS 22473, at **23-24 (D.D.C.
May 8, 1997) (magistrate's recommendation) (declining to apply deliberative process
privilege to results of tax audit in which agency was merely "applying published tax
laws to factual information regarding a taxpayer"), adopted (D.D.C. Jan. 28, 1998).
86. See, e.g., Sears, 421 U.S. at 153-54; Judicial Watch, Inc. v. HHS, 27 F. Supp. 2d 240,
245 (D.D.C. 1998) ("deliberative process privilege does not protect documents that
merely state or explain agency decisions"); cf. Horowitz v. Peace Corps, No. 00-0848,
slip op. at 9-10 (D.D.C. Oct. 12, 2001) (ordering parties to submit additional evidence
of whether final decision had been made at time disputed memorandum was
written). But cf. Murphy v. TVA, 571 F. Supp. 502, 505 (D.D.C. 1983) (protecting two
"interim" decisions, which agency retains option of changing).
87. Sears, 421 U.S. at 152.
88. N. Dartmouth Properties, Inc. v. HUD, 984 F. Supp. 65, 69 (D. Mass. 1997) (noting
that author may not have known that final decision had been reached at time he
composed message because "[n]o one would waste time preparing an e-mail
message in an attempt to persuade someone to reach a conclusion if he knew that
the conclusion he was advocating had already been reached").
89. Sterling Drug, Inc. v. FTC, 450 F.2d 698, 708 (D.C. Cir. 1971).
90. Coastal States, 617 F.2d at 869; see also Schlefer v. United States, 702 F.2d 233,
243-44 (D.C. Cir. 1983).
91. Coastal States, 617 F.2d at 868; see also Evans v. OPM, 276 F. Supp. 2d 34, 40
(D.D.C. 2003) (holding that deliberative process privilege does not protect
memorandum issued by OPM's Office of General Counsel that is "clear statement" of
OPM's position on adoption of governmentwide hiring policy); Hansen v. United
States Dep't of the Air Force, 817 F. Supp. 123, 124-25 (D.D.C. 1992) (ordering
disclosure of draft document used by agency as final product); see also Carlton v.
Dep't of Interior, No. 97-2105, slip op. at 15 n.7 (D.D.C. Sept. 3, 1998) (observing that
court "need not find that the agency is withholding secret law . . . to conclude that
the government has nevertheless failed to justify its withholdings under FOIA
92. See Sears, 421 U.S. at 151 (holding postdecisional documents subject to
deliberative process privilege "as long as prior communications and the ingredients
of the decisionmaking process are not disclosed"); see also Mead Data Cent., Inc. v.
United States Dep't of the Air Force, 566 F.2d 242, 257 (D.C. Cir. 1977) ("It would exalt
form over substance to exempt documents in which staff recommend certain action
or offer their opinions on given issues but require disclosure of documents which
only 'report' what those recommendations and opinions are."); Blazar, No. 92-2719,
slip op. at 15 (D.D.C. Apr. 15, 1994) (deciding that President's indication of which
alternative he adopted does not waive privilege for unadopted recommendations);
cf. Steinberg v. United States Dep't of Justice, No. 91-2740, 1993 WL 385820, at *3
(D.D.C. Sept. 13, 1993) (holding that protection of exemption is not lost where
decision to conduct particular type of investigation was merely intermediate step in
93. See Schlefer, 702 F.2d at 237. See generally ITT, 699 F.2d at 1235; Arthur
Andersen & Co. v. IRS, 679 F.2d 254, 258-59 (D.C. Cir. 1982); Tax Analysts v. IRS, No. 94-923, 1996 U.S. Dist. LEXIS 3259, at **4-8 (D.D.C. Mar. 15, 1996), aff'd, 117 F.3d 607 (D.C.
94. 5 U.S.C. Â§ 552(a)(2)(A) (2000); see Fed. Open Mkt. Comm., 443 U.S. at 360-61 n.23.
95. Skelton v. United States Postal Serv., 678 F.2d 35, 41 (5th Cir. 1982); cf. Rockwell
Int'l Corp. v. United States Dep't of Justice, 235 F.3d 598, 602-03 (D.C. Cir. 2001)
(concluding that a report was not a final opinion because it contained "conclusions of
a voluntarily undertaken internal agency investigation, not a conclusion about
agency action (or inaction) in an adversarial dispute with another party"); Common
Cause v. IRS, 646 F.2d 656, 659-60 (D.C. Cir. 1981) (rejecting a claim that a document
was a final opinion, because the agency's action involved "the voluntary suggestion,
evaluation, and rejection of a proposed policy by an agency, not the agency's final,
unappealable decision not to pursue a judicial remedy in an adversarial dispute").
But see Afshar v. Dep't of State, 702 F.2d 1125, 1142-43 (D.C. Cir. 1983) (holding that
even single recommendation of no precedential value or applicability to rights of
individual members of public loses protection if specifically adopted as basis for final
96. Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997); Evans, 276 F. Supp. 2d at 39
(finding documents at issue "indistinguishable" from records at issue in Tax Analysts
for purposes of Exemption 5); cf. Tax Analysts v. IRS, 97 F. Supp. 2d 13, 17 (D.D.C.
2000) (protecting IRS Legal Memoranda, and distinguishing them from FSAs, on the
basis that "[w]hereas [Legal Memoranda] flow 'upward' from staffers to reviewers,
[FSAs] flow 'outward' from the Office of Chief Counsel to personnel in the field");
Ginsberg v. IRS, No. 96-2265-CIV-T-26E, 1997 WL 882913, at *4 & nn.4, 5 (M.D. Fla. Dec.
23, 1997) (magistrate's recommendation) ("Although the opinions of District Counsel
may not represent final opinions or policy statements of the IRS . . . [they were] relied
upon and specifically referenced" by the IRS agent in the conduct of the
examination.), adopted (M.D. Fla. Jan. 27, 1998), appeal dismissed, No. 98-2384 (11th
Cir. June 5, 1998).
97. Tax Analysts, 117 F.3d at 617.
98. See Pfeiffer, 721 F. Supp. at 340 ("What matters is that the person who issues
the document has authority to speak finally and officially for the agency.").
99. Grumman, 421 U.S. at 184-85; see also A. Michael's Piano, Inc. v. FTC, 18 F.3d 138,
147 (2d Cir. 1994) (finding staff attorney's recommendation predecisional as she had
no authority to close investigation); Tax Analysts v. IRS, 152 F. Supp. 2d 1, 24-25
(D.D.C. 2001) (protecting memoranda "written by a component office without
decisionmaking authority to a different component office" that had such authority),
aff'd in part, rev'd in part on other grounds & remanded, 294 F.3d 71 (D.C. Cir. 2002);
Tax Analysts, 97 F. Supp. 2d at 17 ("Because the drafters lack ultimate
[decisionmaking] authority, their views are necessarily predecisional."); Badhwar v.
United States Dep't of the Air Force, 615 F. Supp. 698, 702-03 (D.D.C. 1985) (concluding
that Air Force safety board does not make decisions, only recommendations), aff'd in
part & remanded in part on other grounds, 829 F.2d 182 (D.C. Cir. 1987); Am. Postal
Workers Union v. Office of Special Counsel, No. 85-3691, slip op. at 6 (D.D.C. June 24,
1986) (protecting prosecutorial recommendations to special counsel which were not
binding or dispositive). But see Tax Analysts, 117 F.3d at 617 (finding chief counsel's
"nonbinding" FSAs to field offices to be not predecisional because they "constitute
100. Schlefer, 702 F.2d at 238; see also Nat'l Wildlife, 861 F.2d at 1123; cf. Goldstein v.
Office of Indep. Counsel, No. 87-2028, 1999 WL 570862, at *7 (D.D.C. July 29, 1999)
(protecting recommendations on possible criminal investigations from head of
Department of Justice's Criminal Division to Director of FBI).
101. Schlefer, 702 F.2d at 238, 241; see, e.g., Badran v. United States Dep't of Justice,
652 F. Supp. 1437, 1439 (N.D. Ill. 1987) (concluding that INS decision on plaintiff's bond
was final, even though it was reviewable by immigration judge, because
"immigration judges are independent from the INS, and no review of plaintiff's bond
occurred within the INS").
102. See, e.g., Nat'l Wildlife, 861 F.2d at 1122-23 (finding that headquarters'
comments on regional plans were opinions and recommendations); Heggestad, 182
F. Supp. 2d at 10 (finding that top official in Department of Justice's Tax Division
actually had made decision to prosecute despite fact that authority to make such
decisions had been delegated to chief of Tax Division's Criminal Section); Nat'l Ass'n
of Criminal Def. Lawyers v. United States Dep't of Justice, No. 97-372, slip op. at 10-13
(D.D.C. July 22, 1998) (deciding that predecisional character of draft IG report is not
affected by fact that FBI took adverse personnel action against investigated
employees after reviewing it); Jowett, Inc. v. Dep't of the Navy, 729 F. Supp. 871, 874
(D.D.C. 1989) (protecting audit reports prepared by entity lacking final
103. See, e.g., City of Va. Beach v. United States Dep't of Commerce, 995 F.2d 1247,
1254 (4th Cir. 1993) (protecting documents discussing past decision insofar as it
influences future decision); Access Reports, 926 F.2d at 1196 (finding that staff
attorney memorandum on how proposed FOIA amendments would affect future
cases not postdecisional working law but opinion on how to handle pending
legislative process); Hamrick v. Dep't of the Navy, No. 90-283, 1992 WL 739887, at *2
(D.D.C. Aug. 28, 1992) ("[D]ocuments prepared after [agency's] decision to dual
source the F404 engines are not 'formal agency policy,' but, recommendations for
future decisions relating to F404 procurement based upon lessons learned from the
dual sourcing decisionmaking process."), appeal dismissed voluntarily, No. 92-5376
(D.C. Cir. Aug. 4, 1995); Dow, Lohnes & Albertson v. Presidential Comm'n on Broad. to
Cuba, 624 F. Supp. 572, 574-75 (D.D.C. 1984) (holding records predecisional because,
although documents discussed implementation of previous decision, issues
discussed were "not mere details to be worked out but rather matters requiring
further study and generating debate which culminated in the making of new policy");
cf. Wilkinson v. Chao, 292 F. Supp. 2d 288, 295 (D.N.H. 2003) (holding that agency's
"final" decision was its decision not to give plaintiff overtime pay, rather than
auditor's "determination" on appropriateness of decision, and that therefore
documents generated after former but before latter were postdecisional).
104. See, e.g., AFGE v. United States Dep't of Commerce, 907 F.2d 203, 208 (D.C. Cir.
1990); Bureau of Nat'l Affairs, 742 F.2d at 1497.
105. See Bureau of Nat'l Affairs, 742 F.2d at 1497.
106. Dow, Lohnes & Albertson v. USIA, No. 82-2569, slip op. at 15-16 (D.D.C. June 5,
1984), vacated in part, No. 84-5852 (D.C. Cir. Apr. 17, 1985); see also Badhwar v. United
States Dep't of Justice, 622 F. Supp. 1364, 1372 (D.D.C. 1985) ("There is nothing
predecisional about a recitation of corrective action already taken.").
107. Coastal States, 617 F.2d at 868; see also Nadler v. United States Dep't of
Justice, 955 F.2d 1479, 1491 (11th Cir. 1992) ("[A] recommendation to a supervisor on
how to proceed is predecisional by nature."); Judicial Watch, No. 00-0723, slip op. at 8
(D.D.C. Mar. 30, 2001) (protecting "communications from subordinates to superiors" in
Elian Gonzalez case); Students Against Genocide v. Dep't of State, No. 96-667, 1999
WL 699074, at *12 (D.D.C. Aug. 24, 1998) (magistrate's recommendation) (holding field
notes of official analyzing factual information and making recommendations on U.S.
foreign policy exempt), adopted (D.D.C. Sept. 29, 1998), aff'd in part & remanded in
part on other grounds, 257 F.3d 828, 841 (D.C. Cir. 2001); Hayes v. Dep't of Labor, No.
96-1149-P-M, 1998 U.S. Dist. LEXIS 14120, at *18 (S.D. Ala. June 18, 1998) (magistrate's
recommendation) ("[A] recommendation from a lower-level employee to a higher-level manager qualifies as a predecisional, deliberative document for purposes of
exemption 5."), adopted (S.D. Ala. Aug. 10, 1998); Burke v. DEA, No. 96-1739, slip op. at
8 (D.D.C. Mar. 31, 1998) (protecting correspondence from postal inspector to
Assistant United States Attorney who he was assisting in prosecution), appeal
dismissed, No. 98-5113 (D.C. Cir. Mar. 31, 2000); Ginsberg, 1997 WL 882913, at **4-5
(holding protectible IRS agent's "request for technical assistance" and supervisor's
addendum revealing "areas of concern of the two authors" during conduct of
108. Brinton, 636 F.2d at 605; see also AFGE v. United States Dep't of Commerce, 632
F. Supp. 1272, 1276 (D.D.C. 1986); Ashley, 589 F. Supp. at 908; cf. Shumaker, Loop &
Kendrick v. Commodity Futures Trading Comm'n, No. 97-7139, slip op. at 14 (N.D. Ohio
Nov. 27, 1997) (protecting an advisory document where there was "no indication that
the author of the document had authority to establish agency policy").
109. See Nat'l Wildlife, 861 F.2d at 1123 (finding comments from headquarters to
regional office, under circumstances presented, to be advisory rather than directory);
N. Dartmouth Properties, 984 F. Supp. at 70 (dictum) ("Conversation is, after all, a
two-way street. A superior would be willing to engage a subordinate in candid
debate only if he knows that his opinions will also be protected by the 'deliberative
110. See Judicial Watch, 102 F. Supp. 2d at 16 (protecting Attorney General's
handwritten predecisional notes from meeting on campaign finance task force
investigation); cf. Conoco Inc. v. United States Dep't of Justice, 687 F.2d 724, 727 (3d
Cir. 1982) (rejecting the contention that only records "'circulated within the agency'"
may be withheld under Exemption 5).
111. Formaldehyde, 889 F.2d at 1122 (quoting CNA Fin. Corp. v. Donovan, 830 F.2d
1132, 1161 (D.C. Cir. 1987)); see also Judicial Watch, Inc. v. Reno, 154 F. Supp. 2d 17, 18
(D.D.C. 2001) ("It is not enough to say that a memorandum 'expresses the author's
views' on a matter [because the] role played by the document in the course of the
deliberative process must also be established.").
112. Sears, 421 U.S. at 161; see, e.g., Afshar, 702 F.2d at 1140 (finding
recommendation expressly adopted in postdecisional memorandum); Niemeier v.
Watergate Special Prosecution Force, 565 F.2d 967, 973 (7th Cir. 1977) (ordering
disclosure of an "underlying memorandum" that was "expressly relied on in a final
agency dispositional document"); Shumaker, No. 97-7139, slip op. at 14 (ordering
disclosure of advisory document written by agency general counsel and "thereafter
adopted as the official position of the agency"); Bhd. of Locomotive Eng'rs v. Surface
Transp. Bd., No. 96-1153, 1997 WL 446261, at **4-5 (D.D.C. July 31, 1997) (finding that
staff recommendation was adopted in both written decision and commission vote);
Burkins v. United States, 865 F. Supp. 1480, 1501 (D. Colo. 1994) (holding that final
report's statement that findings are same as those of underlying memorandum
constituted adoption of that document); Atkin v. EEOC, No. 91-2508, slip op. at 23-24
(D.N.J. July 14, 1993) (holding recommendation to close file not protectible where it
was contained in agency's actual decision to close file); cf. Tax Analysts, 117 F.3d at
617 (finding that documents "routinely used" and "relied upon by agency personnel,"
in a particular factual setting, were "statements of the agency's legal position" and
accordingly not protectible).
113. Coastal States, 617 F.2d at 866; see Pentagon Fed. Credit Union v. Nat'l Credit
Union Admin., No. 95-1475, slip op. at 5-8 (E.D. Va. June 7, 1996) (finding that board of
directors' action "embracing" recommendations in "substantially same language"
made documents postdecisional); Pension Actuaries, 746 F. Supp. at 192 (ordering
disclosure simply on the basis that the IRS's budget assumptions and calculations
were "relied upon by the government" in making its final estimate for the President's
budget); cf. Skelton, 678 F.2d at 39 n.5 (declining to express opinion on whether
reference must be to specific portion of document for express incorporation of that
portion to occur).
114. See, e.g., Rockwell Int'l v. United States Dep't of Justice, No. 98-761, slip op. at 8-9, 15 (D.D.C. Mar. 24, 1999) (finding no adoption where public memorandum merely
referred to underlying documents as evidence supporting its conclusions and
observing that "the memorandum is itself a discussion and statement of reasons
[that] stands alone, independent of its supporting documents"), aff'd on other
grounds, 235 F.3d 598 (D.C. Cir. 2001); N. Dartmouth Properties, 984 F. Supp. at 69-70
(holding that fact that agency ultimately reached conclusion advocated by author of
withheld document did not constitute adoption of author's reasoning); AFGE v. Dep't
of the Army, 441 F. Supp. 1308, 1311 (D.D.C. 1977) (holding that decisionmaker's letter
setting forth reasons for decision, not underlying report, constituted final agency
115. See Am. Soc'y of Pension Actuaries, 746 F. Supp. at 191; Martin v. MSPB, 3 Gov't
Disclosure Serv. (P-H) Â¶ 82,416, at 83,044 (D.D.C. Sept. 14, 1982). But see Blazar, No.
92-2719, slip op. at 14-15 (D.D.C. Apr. 15, 1994) (holding that no incorporation occurred
when final decisionmaker approved one of several choices but did not indicate
intention to adopt remainder of document in question); Am. Postal Workers Union,
No. 85-3691, slip op. at 7-9 (D.D.C. June 24, 1986) (declining to infer incorporation).
116. See Grumman, 421 U.S. at 184-85; Afshar, 702 F.2d at 1143 n.22; see also Casad,
301 F.3d at 1252 (protecting documents that were "important consideration" for final
decisionmaker but were not "dispositive"); Trans Union LLC v. FTC, No. 00-2384, 2001
U.S. Dist. LEXIS 4559, at *15 (D.D.C. Apr. 9, 2001) (following Grumman and rejecting
argument that burden is on agency to prove that documents were not adopted as
basis for policy); Perdue Farms, 1997 U.S. Dist. LEXIS 14579, at **20-23 (holding that
fact that document was created only two days before issuance of final decision was
insufficient to give rise to inference of adoption); Greyson v. McKenna & Cuneo, 879
F. Supp. 1065, 1069 (D. Colo. 1995) (deciding that use of phrase "the evidence shows"
not enough for inference of adoption); Afr. Fund v. Mosbacher, No. 92-289, 1993 WL
183736, at *7 (S.D.N.Y. May 26, 1993) (concluding that record did not suggest either
"adoption" or "final opinion" of agency); Wiley, Rein & Fielding v. United States Dep't
of Commerce, No. 90-1754, slip op. at 6 (D.D.C. Nov. 27, 1990) ("Denying protection to a
document simply because the document expresses the same conclusion reached by
the ultimate agency decision-maker would eviscerate Exemption 5."); Ahearn v.
United States Army Materials & Mechs. Research Ctr., 580 F. Supp. 1405, 1407 (D.
Mass. 1984) (holding that fact that general officer reached same conclusion as report
of investigation did not constitute adoption of report's reasoning).
117. See, e.g., EPA v. Mink, 410 U.S. 73, 91 (1973) (refusing to extend deliberative
process privilege protection to "factual material otherwise available on discovery
merely [on the basis that] it was placed in a memorandum with matters of law,
policy, or opinion"); Coastal States, 617 F.2d at 867 (citing Mink, 410 U.S. at 93); Bilbrey
v. United States Dep't of the Air Force, No. 00-0539, slip op. at 10-11 (W.D. Mo. Jan. 30,
2001) (holding privilege inapplicable to factual statements underlying predecisional
recommendations), aff'd, No. 01-1789, 2001 WL 1222471, at *1 (8th Cir. Oct. 16, 2001)
(unpublished table decision); Sw. Ctr. for Biological Diversity, 170 F. Supp. 2d at 941
(concluding that release of "raw research data" would not expose agency's
deliberative process, on grounds that such data were not recommendations, not
subject to alteration upon further agency review, and not "selective" in character).
118. 410 U.S. at 87-88 (1973).
119. See Montrose Chem. Corp. v. Train, 491 F.2d 63, 66 (D.C. Cir. 1974); see also
Rashid v. HHS, No. 98-0898, slip op. at 11-12 (D.D.C. Mar. 2, 2000) (declining to extend
the privilege to agency requests for outside experts' evaluations on the basis that
although "[t]he requests were predecisional, . . . they were not deliberative in that
they did not 'reflect the give-and-take of the consultative process'" (quoting Coastal
States, 617 F.2d at 866)); D.C. Technical Assistance Org. v. HUD, No. 98-0280, slip op.
at 4-5 (D.D.C. July 29, 1999) (ordering release of factual portion of an otherwise
deliberative record because it "does not evaluate the actions taken, but only
describes them"); Horsehead, No. 94-1299, slip op. at 16 (D.D.C. Oct. 1, 1996) ("EPA
has not demonstrated how the disclosure of either the testing processes . . . or the
data from that testing involves [sic] its deliberative process.").
120. See, e.g., Nat'l Wildlife, 861 F.2d at 1118 (rejecting simplistic fact/ opinion
distinction, and instead focusing on whether documents in question play role in
agency's deliberative process); Skelton, 678 F.2d at 38-39 (explaining that focus
should be on whether release of documents would reveal agency's evaluative
121. Dudman, 815 F.2d at 1568.
122. Wolfe, 839 F.2d at 774; see also Nat'l Wildlife, 861 F.2d at 1119 ("ultimate
objective" of Exemption 5 is to safeguard agency's deliberative process).
123. See FOIA Update, Vol. VII, No. 3, at 6.
124. 491 F.2d at 71.
125. Id. at 68; see, e.g., Poll v. United States Office of Special Counsel, No. 99-4021,
2000 WL 14422, at *3 (10th Cir. Oct. 14, 1999) (protecting factual "distillation" which
revealed significance that examiner attributed to various aspects of case); Hamilton
Sec. Group, 106 F. Supp. 2d at 33 (protecting facts in a draft audit report on the
grounds that "any factual information that could be [released] would reveal
decisions made by the auditor" and thereby chill future agency deliberations);
Heggestad, 182 F. Supp. 2d at 12 n.10 (protecting facts "selected by authors from a
larger body of factual material," because disclosure would reveal authors'
deliberative processes); Melius v. Nat'l Indian Gaming Comm'n, No. 98-2210, 1999 U.S.
Dist. LEXIS 17537, at *12 (D.D.C. Nov. 3, 1999) (affirming agency denial of "fact
summaries that show the investigators' deliberation in determining [plaintiff's]
suitability" for federal appointment); Mace, 37 F. Supp. 2d at 1150 (protecting factual
"distillation" in otherwise deliberative EEOC report), aff'd, 197 F.3d 329 (8th Cir. 1999);
Means v. Segal, No. 97-1301, slip op. at 10-11 (D.D.C. Mar. 18, 1998) (magistrate's
recommendation) (holding that factual material "could not be released as
segregable from the remainder, as the facts discussed in the investigative report
reflect the value placed on each in forming the recommendation"), adopted (D.D.C.
Apr. 15, 1998), aff'd per curiam, No. 98-5170 (D.C. Cir. Oct. 6, 1998); Atkin, No. 91-2508,
slip op. at 21 (D.N.J. July 14, 1993) (holding exempt staff selection of certain factual
documents to be used for report preparation); Bentson Contracting Co. v. NLRB, No.
90-451, slip op. at 3 (D. Ariz. Dec. 28, 1990) (finding that agency properly withheld
document characterizing issues most important to parties and discussing how facts
were analyzed in decisional process).
126. Williams v. United States Dep't of Justice, 556 F. Supp. 63, 65 (D.D.C. 1982).
127. Mead Data, 566 F.2d at 256; see also Providence Journal, 981 F.2d at 562
(revealing IG's factual findings would divulge substance of related
recommendations); Lead Indus., 610 F.2d at 85 (disclosing factual segments of
summaries would reveal deliberative process by "demonstrating which facts in the
massive rule-making record were considered significant to the decisionmaker");
Farmworkers Legal Servs. v. United States Dep't of Labor, 639 F. Supp. 1368, 1373
(E.D.N.C. 1986) (holding that list of farmworker camps was "selective fact" and thus
128. City of Va. Beach, 995 F.2d at 1255; see also Nat'l Ass'n of Home Builders v.
Norton, 309 F.3d 26, 39 (D.C. Cir. 2002) (holding that documents listing locations of
endangered species were not deliberative, despite fact that they were prepared
partly to assist agency in making determinations under Endangered Species Act, 16
U.S.C. Â§ 1653 (2000)); ITT, 699 F.2d at 1239 (holding that notes must be more than
"straightforward factual narrations" to be protected); Playboy Enters. v. Dep't of
Justice, 677 F.2d 931, 936 (D.C. Cir. 1982) (concluding that factual materials must be
generated in course of agency's decisionmaking process to be protectible); Bryce v.
OPIC, No. A-96-CA-595, slip op. at 17 (W.D. Tex. Sept. 28, 1998) (finding set of
photographs to be "factual in nature" and rejecting argument that photographs are
deliberative in that they embody agency consultant's "determination of those
aspects of [a mining site] that it determined were of sufficient significance to bring
to OPIC's attention"), appeal dismissed voluntarily, No. 99-50893 (5th Cir. Oct. 14,
1999); Lacy v. United States Dep't of the Navy, 593 F. Supp. 71, 78 (D. Md. 1984)
(holding that photographs attached to deliberative report "do not become part of
the deliberative process merely because some photographs were selected and
others were not").
129. Mapother, 3 F.3d at 1538-40.
130. Id. at 1539 (distinguishing and confining Playboy as involving report designed
only to inform Attorney General of facts he would make available to Member of
Congress, rather than one involving any decision he would have to make); see also
City of Va. Beach, 995 F.2d at 1255 (observing similarly that in Playboy "[the] agency
identified no decision in relation to the withheld investigative report").
131. Mapother, 3 F.3d at 1539-40; see also D.C. Technical Assistance Org., No. 98-0280, slip op. at 5 (D.D.C. July 29, 1999) ("The order in which the [factual portions] are
listed is apparently random, so that disclosing them reveals nothing of the decision
making process or of the subjective assessment that follows.").
132. See, e.g., Wolfe, 839 F.2d at 774-76 (protecting mere "fact" of status of proposal
in deliberative process); Tarullo, 170 F. Supp. 2d at 278 ("Although the document
does summarize relevant facts, that summary is so intertwined with . . .
recommendations and opinions . . . that production of a redacted version would be
incomprehensible, and the very selection of facts could also reveal the nature of
those recommendations and opinions."); Brownstein Zeidman & Schomer v. Dep't of
the Air Force, 781 F. Supp. 31, 36 (D.D.C. 1991) (holding that the release of summaries
of negotiations would inhibit the free flow of information, as "summaries are not
simply the facts themselves"); Jowett, 729 F. Supp. at 877 (determining that
disclosing manner of selecting and presenting even most factual segments of audit
reports would reveal process by which agency's final decision is made); Wash. Post
Co. v. DOD, No. 84-2403, slip op. at 5 (D.D.C. Apr. 15, 1988) (finding factual assertions
in briefing documents "thoroughly intertwined" with opinions and impressions);
Wash. Post, 1987 U.S. Dist. LEXIS 16108, at *33 (holding that summaries and lists of
materials relied upon in drafting report are "inextricably intertwined with the
policymaking process"). But see Vaughn, 523 F.2d at 1145 (stating that survey results
cannot be protected where they merely "provide the raw data upon which decisions
can be made[ and] are not themselves a part of the decisional process"); Army Times
Publ'g Co. v. Dep't of the Air Force, No. 90-1383, slip op. at 6-7 (D.D.C. Feb. 28, 1995)
133. Quarles v. Dep't of the Navy, 893 F.2d 390, 392-93 (D.C. Cir. 1990); cf. Russell, 682
F.2d at 1048-49 (protecting documents prepared by Air Force group charged with
developing agency's official report on herbicide use during Vietnam War).
134. See, e.g., Kennecott Utah Copper Corp. v. EPA, No. 94-162, slip op. at 4 (D.D.C.
Sept. 11, 1995) (holding material relating to preparation of Hazard Ranking Scores
part of deliberative process); SMS Data Prods. Group, Inc. v. United States Dep't of
the Air Force, No. 88-481, 1989 WL 201031, at **1-2 (D.D.C. Mar. 31, 1989) (holding
technical scores and technical rankings of competing contract bidders predecisional
and deliberative); Nat'l Wildlife Fed'n v. United States Forest Serv., No. 86-1255, slip
op. at 9 (D.D.C. Sept. 26, 1987) (protecting variables reflected in computer program's
mathematical equation); Am. Whitewater Affiliation v. FERC, No. 86-1917, 1986 U.S.
Dist. LEXIS 17067, at *10 (D.D.C. Dec. 2, 1986) ("[T]he cost and energy comparisons
involved in this case are deliberative."); Brinderson Constructors, Inc. v. United States
Army Corps of Eng'rs, No. 85-905, 1986 WL 293230, at *5 (D.D.C. June 11, 1986)
(holding that computations made in order to evaluate a claim for compensation "are
certainly part of the deliberative process"); Prof'l Review Org., Inc. v. HHS, 607 F.
Supp. 423, 427 (D.D.C. 1985) (observing that scores used to rate procurement
proposals may be "numerical expressions of opinion rather than 'facts'"). But see
Warren v. Soc. Sec. Admin., No. 98-CV-0116E, 2000 WL 1209383, at *3 (W.D.N.Y. Aug.
22, 2000) (holding without authority that the privilege does not protect the ordered
ranking of job applicants, and mistakenly reasoning that such a ranking "is not pre-decisional . . . as [it is] the result of the panel's decisions" rather than an intermediate
step in a multi-layered decisionmaking process), aff'd on other grounds, 10 Fed.
Appx. 20 (2d Cir. 2001).
135. Parke, Davis, 623 F.2d at 6; see also Quarles, 893 F.2d at 392-93 (protecting cost
estimates as "elastic facts"); Horsehead, No. 94-1299, slip op. at 15-20 (D.D.C. Oct. 1,
1996) (finding that agency scientists' "open discussion of the effectiveness of . . .
testing results and frank exchanges of view regarding the interpretation of those
results reside near the core of an agency's deliberative process"). But see Ethyl
Corp. v. EPA, 478 F.2d 47, 50 (4th Cir. 1973) (characterizing such material as
"technological data of a purely factual nature").
136. See Cleary, Gottlieb, Steen & Hamilton v. HHS, 884 F. Supp. 770, 782-83 (D.D.C.
137. Chem. Mfrs., 600 F. Supp. at 118.
138. 861 F.2d at 1115, 1120 (protecting, e.g., "working drafts" of forest plan and
"working drafts of environmental impact statements").
139. Paisley v. CIA, 712 F.2d 686, 698 n.53 (D.C. Cir. 1983) (dictum). But see Rashid,
No. 98-0898, slip op. at 13-14 (D.D.C. Mar. 2, 2000) (opining without authority that
"[t]he results of research are factual and not deliberative information").
140. Army Times Publ'g Co. v. Dep't of the Air Force, 998 F.2d 1067, 1070 (D.C. Cir.
1993) (holding that agencies must show how process would be harmed where some
factual material was released and similar factual material was withheld); see also
Am. Petroleum Inst. v. EPA, 846 F. Supp. 83, 90-91 (D.D.C. 1994) (ordering agency to
show how factual information could reveal deliberative process).
141. Sears, 421 U.S. at 150; Judicial Watch, Inc. v. Dep't of Justice, 306 F. Supp. 2d 58,
70 (D.D.C. 2004) (protecting "handwritten notes" on an invitation to the Attorney
General, because disclosure "'would reveal what the staff member who wrote the
notes considered to be important . . . and how the decision to attend the event may
have been reached'" (quoting agency declaration)); Dorsett v. Dep't of the Treasury,
307 F. Supp. 2d. 28, 37-38 (D.D.C. 2004) (protecting Secret Service document
evaluating threats presented by plaintiff and others to Secret Service protectees);
Warren, 2000 WL 1209383, at *2 (protecting applicant scoresheets on basis that "[t]he
decisions of a hiring panel to emphasize certain types of skills or how many points to
award to an applicant for a particular educational experience or previous
employment experience are deliberative decisions in that they set the policy for the
hiring process"); see also Jernigan v. Dep't of the Air Force, 1998 WL 658662, at *2 (9th
Cir. Sept. 17, 1998) (protecting "opinions and recommendations" of agency
investigating officer); Nat'l Wildlife, 861 F.2d at 1121 ("Recommendations on how to
best deal with a particular issue are themselves the essence of the deliberative
process."); Canning v. Dep't of the Treasury, No. 94-2704, slip op. at 7 (D.D.C. Mar. 21,
2001) ("Allowing disclosure of the pre-decisional opinions of Secret Service Special
Agents on whether particular organizations pose protective security risks could
compromise the agency's ability to complete its protective mission by stifling honest
and frank communication within the agency."); Judicial Watch, 102 F. Supp. 2d at 16
(protecting notes taken by Attorney General at campaign finance task force
meeting, but not shared with any other person, because their release "could reveal
how the [Attorney General] prioritized different facts and considerations in
deliberating whether or not to appoint an independent counsel . . . [and] reveal her
interpretation of public policies which she deemed relevant" to decision whether to
appoint independent counsel); Fine v. United States Dep't of Energy, No. 88-1033, slip
op. at 9 (D.N.M. June 22, 1991) (finding that notes written in margins of documents
constitute deliberations of documents' recipient); Jowett, 729 F. Supp. at 875
(protecting documents that are "part of the give-and-take between government
entities"); Strang v. Collyer, 710 F. Supp. 9, 12 (D.D.C. 1989) (approving withholding of
meeting notes that reflect the exchange of opinions between agency personnel or
divisions of agency), aff'd sub nom. Strang v. DeSio, 899 F.2d 1268 (D.C. Cir. 1990)
(unpublished table decision).
142. Coastal States, 617 F.2d at 866; see also Missouri, 147 F.3d at 711 ("Perhaps a
fuller description [of the record] and why it is exempt might have avoided this
litigation, but it was not improper for the [agency] to conclude that open and frank
intra-agency discussion would be 'chilled' by public disclosure."); Schell, 843 F.2d at
942 ("It is the free flow of advice, rather than the value of any particular piece of
information, that Exemption 5 seeks to protect.").
143. See Judicial Watch, Inc. v. United States Dep't of Energy, No. 01-0981, 2004 WL
635180, at *32 (D.D.C. Mar. 31, 2004) (protecting briefing materials prepared for
Secretary of the Interior), motion for reconsideration denied & stay pending appeal
granted (May 26, 2004); Judicial Watch, 306 F. Supp. 2d at 71-72 (protecting e-mail
created to prepare FERC chairman for upcoming congressional testimony);
Thompson v. Dep't of the Navy, No. 95-347, 1997 WL 527344, at *4 (D.D.C. Aug. 18,
1997) (protecting materials created to brief senior officials who were preparing to
respond to media inquiries, on the basis that "disclosure of materials reflecting the
process by which the Navy formulates its policy concerning statements to and
interactions with the press" could stifle frank communication within the agency),
aff'd, No. 97-5292, 1998 WL 202253, at *1 (D.C. Cir. Mar. 11, 1998) (per curiam); Access
Reports, 926 F.2d at 1196-97 (dictum); Klunzinger v. IRS, No. 5:96-CV-209, 1998 U.S.
Dist. LEXIS 3226, at *31 (W.D. Mich. Mar. 3, 1998) (holding paper prepared to brief
commissioner for meeting protectible); Hunt, 935 F. Supp. at 52 (holding "point
papers" compiled to assist officers in formulating decision protectible); Wash. Post,
1987 U.S. Dist. LEXIS 16108, at *33 (holding summaries and lists of material compiled
for general's report preparation protectible); Williams, 556 F. Supp. at 65 (holding
"briefing papers prepared for the Attorney General prior to an appearance before a
congressional committee" protectible); see also FOIA Update, Vol. IX, No. 4, at 5.
But see Nat'l Sec. Archive v. FBI, No. 88-1507, 1993 WL 128499, at **2-3 (D.D.C. Apr. 15,
1993) (singularly finding briefing papers to be not protectible).
144. See, e.g., City of Va. Beach, 995 F.2d at 1253; Town of Norfolk v. United States
Corps of Eng'rs, 968 F.2d 1438, 1458 (1st Cir. 1992); Dudman, 815 F.2d at 1569; Russell,
682 F.2d at 1048; Lead Indus., 610 F.2d 70, of 85-86 (2d Cir. 1979); Judicial Watch, No.
00-0723, slip op. at 9-10 (D.D.C. Mar. 30, 2001); Judicial Watch, Inc. v. Exp.-Imp. Bank,
108 F. Supp. 2d 19, 36 (D.D.C. 2000); Hamilton Sec. Group, 106 F. Supp. 2d at 32;
Snoddy v. Hawke, No. 99-1636, slip op. at 1-2 (D. Colo. Dec. 20, 1999), aff'd, No. 00-1384,
2001 WL 672263 (10th Cir. June 15, 2001); LaRouche, No. 91-1655, slip op. at 30 (D.D.C.
May 22, 1998) (protecting draft search warrant affidavits and stating that "it is
axiomatic that draft documents reflect some give and take on the part of those
involved in the drafts").
145. Arthur Andersen, 679 F.2d at 257 (citing Coastal States, 617 F.2d at 866); see
Judicial Watch, Inc. v. USPS, 297 F. Supp. 2d 252, 261 (D.D.C. 2004) (citing Arthur
Andersen for questionable proposition that "drafts are not presumptively
privileged"); see also Petroleum Info., 976 F.2d at 1436 n.8 (suggesting new harm
standard for "mundane," nonpolicy-oriented documents, which can include drafts);
Lee v. FDIC, 923 F. Supp. 451, 458 (S.D.N.Y. 1996) (declaring without further analysis
that a document's draft status is not a sufficient reason "to automatically exempt" it
from disclosure where it has not been shown that disclosure would "inhibit the free
flow of information" between agency personnel); cf. Hansen, 817 F. Supp. at 124-25
(concluding that an unpublished internal document lost its draft status when
consistently treated by the agency as a finished product over many years).
146. See, e.g., Nat'l Wildlife, 861 F.2d at 1122 ("To the extent that [the requester]
seeks through its FOIA request to uncover any discrepancies between the findings,
projections, and recommendations between the draft[s] prepared by lower-level
[agency] personnel and those actually adopted, . . . it is attempting to probe the
editorial and policy judgments of the decisionmakers."); Marzen v. HHS, 825 F.2d
1148, 1154 (7th Cir. 1987) ("[E]xemption protects not only the opinions, comments and
recommendations in the draft, but also the process itself."); Dudman, 815 F.2d at 1569
("[T]he disclosure of editorial judgments -- for example, decisions to insert or delete
material or to change a draft's focus or emphasis -- would stifle the creative thinking
and candid exchange of ideas necessary to produce good historical work."); Russell,
682 F.2d at 1048 ("Failure to apply the protections of Exemption (b)(5) to the . . .
editorial review process would effectively make such discussion impossible."); Pies v.
IRS, 668 F.2d 1350, 1353-54 (D.C. Cir. 1981) (ruling that disclosure of draft proposed
regulation and draft transmittal memorandum that were ultimately not adopted as
agency policy would be contrary to congressional intent in crafting Exemption 5);
AFGE v. HHS, 63 F. Supp. 2d 104, 109 (D. Mass. 1999) (holding draft indoor air quality
survey protectible because release would "enable a careful reader to determine the
substance of HHS's proposed and adopted changes" and thereby "discourage
candid discussion within the agency"), aff'd, No. 99-2208, 2000 U.S. App. LEXIS 10993
(1st Cir. May 18, 2000); Nat'l Ass'n of Criminal Def. Lawyers, No. 97-372, slip op. at 13-14 (D.D.C. July 22,1998) (holding draft inspector general report protectible because
release "would uncover the [Office of the Inspector General's] deliberations
regarding what should and should not have been included in the final report");
Horsehead, No. 94-1299, slip op. at 19 (D.D.C. Oct. 1, 1996) ("Comparing the draft with
the final version ultimatelyadopted by the agency would provide the requester with
a picture window view into the agency's deliberations, the precise danger that
Exemption 5 was crafted to avoid."); Rothschild v. CIA, No. 91-1314, slip op. at 6-7
(D.D.C. Mar. 25, 1992) (extending protection to "marginalia consisting of comments,
opinions, further relevant information and associated notes" on drafts); Exxon, 585 F.
Supp. at 698 (rejecting argument that agency must show how draft differs from final
document, because such a requirement would "expose what occurred in the
deliberative process between the draft's creation and the final document's
issuance"); see also FOIA Update, Vol. VII, No. 2, at 2; FOIA Update, Vol. IV, No. 1, at
147. See Mobil Oil Corp. v. EPA, 879 F.2d 698, 703 (9th Cir. 1989) (dicta); Lead Indus.,
610 F.2d at 86; see also Exxon, 585 F. Supp. at 698; City of West Chicago v. NRC, 547 F.
Supp. 740, 751 (N.D. Ill. 1982); FOIA Update, Vol. VII, No. 2, at 2. But see Texaco, Inc.
v. United States Dep't of Energy, 2 Gov't Disclosure Serv. (P-H) Â¶ 81,296, at 81,833
(D.D.C. Oct. 13, 1981) (aberrational ruling, without analysis, to the contrary).
148. Assembly of Cal. v. United States Dep't of Commerce, 968 F.2d 916 (9th Cir.
1992); Fla. House of Representatives v. United States Dep't of Commerce, 961 F.2d
941 (11th Cir. 1992).
149. Assembly of Cal., 968 F.2d at 917-18; Fla. House of Representatives, 961 F.2d at
150. Fla. House of Representatives, 961 F.2d at 950.
152. Assembly of Cal., 968 F.2d at 922.
153. Id. at 923; see also Carter, 186 F. Supp. 2d at 1157 (following Assembly of
California and ordering disclosure of adjusted data from 2000 census).
154. See Carter v. United States Dep't of Commerce, 307 F.3d 1084, 1091-92 (9th Cir.
155. 976 F.2d at 1435.
156. Id. at 1436.
157. Id. at 1436 n.8; accord Army Times, 998 F.2d at 1071, 1072 (concluding that
"potentially harmful" factual information could be withheld if it were determined that
it "would actually inhibit candor in the decision-making process if made available to
158. See Hennessey, 1997 WL 537998, at *5 (determining that the "report does not
bear on a policy-oriented judgment of the kind contemplated by Exemption 5" (citing
Petroleum Info., 976 F.2d at 1437)); Ethyl Corp. v. EPA, 25 F.3d 1241, 1248 (4th Cir.
1994) (concluding that the "privilege does not protect a document which is merely
peripheral to actual policy formulation"); Legal & Safety Employer Research, Inc. v.
United States Dep't of the Army, No. CIV. S-00-1748, 2001 WL 34098652, at *6 (E.D. Cal.
May 4, 2001) (concluding strangely that contractor performance evaluations, which
were required to be considered in future government contract award
determinations, were not "the type of policy decision contemplated by Exemption
5"); Chi. Tribune Co. v. HHS, No. 95 C 3917, 1997 U.S. Dist. LEXIS 2308, at *50 (N.D. Ill.
Feb. 26, 1997) (magistrate's recommendation) (holding scientific judgments not
protectible when they do not address agency policymaking), adopted (N.D. Ill. Mar.
28, 1997); Horsehead, No. 94-1299, slip op. at 19 (D.D.C. Oct. 1, 1996) (holding
documents containing descriptions of scientific test results not protectible because
they are "simply barren of any suggestion of advice or recommendations regarding
policy judgments, and the factual information is easily segregated"); Larue v. IRS, No.
3-93-423, 1994 WL 315750, at *2 (E.D. Tenn. Jan. 27, 1994) (holding that privilege covers
documents "actually related to the process by which policy is formed"); Md. Coalition
for Integrated Educ. v. United States Dep't of Educ., No. 92-2178, slip op. at 2 (D.D.C.
June 30, 1993) (rejecting position that deliberative process privilege applies to "all
agency decisions"); Md. Coalition, No. 89-2851, slip op. at 5-6 (D.D.C. July 20, 1992)
(holding agency's "routine review" of state compliance and "assess[ment of] how
well existing policies are being implemented by the state" not protectible because
they "do not suggest or recommend future agency policy"), appeal dismissed
voluntarily, No. 92-5346 (D.C. Cir. Dec. 13, 1993); see also Mapother, 3 F.3d at 1537-39
(discussing and harmonizing existing D.C. Circuit case law).
159. See Attorney General Ashcroft's FOIA Memorandum, reprinted in FOIA Post
(posted 10/15/01) (recognizing agency practice of making discretionary disclosures,
after "careful consideration," in appropriate cases).
160. 861 F.2d at 1118; see Maricopa Audubon Soc'y v. United States Forest Serv., 108
F.3d 1089, 1095 (9th Cir. 1997) (ignoring the issue of "policy" and protecting a letter in
which an employee was "fighting to preserve his job and reputation" by offering his
"candid and confidential responses . . . to the head of his agency in order to rebut the
charges made against him"); Providence Journal Co., 981 F.2d at 560 (citing Nat'l
Wildlife and ruling that the agency's decision to discipline personnel for alleged
misconduct is no less a "deliberative task . . . than the formulation or promulgation of
agency disciplinary policy"); Ctr. for Biological Diversity v. Norton, No. Civ. 01-409
TUC, 2002 WL 32136200, at *2 (D. Ariz. 2002) (holding that limiting privilege to "'policy'
decisions is overly narrow" and inconsistent with Ninth Circuit law); AFGE, AFL-CIO,
Local 1164 v. HHS, 63 F. Supp. 2d 104, 109 (D. Mass. 1999) (rejecting plaintiff's
contentions that a document must be related to an "essential function" of the agency
in order to be protected, a claim "comparable" to the "law and policy" test rejected in
Nat'l Wildlife); Citizens Comm'n on Human Rights v. FDA, No. 92CV5313, 1993 WL
1610471 at *11 (C.D. Cal. May 10, 1993) (citing Nat'l Wildlife and holding that
appropriate test is simply whether document in question contributes to agency's
deliberative process), aff'd in pertinent part & remanded in part, 45 F.3d 1325 (9th Cir.
1995); cf. Brockway v. Dep't of the Air Force, 518 F.2d 1184, 1192 (8th Cir. 1975)
(rejecting plaintiff's contentions that accident witness statements are not part of
agency's deliberations and that they should be released just because they are not
161. See, e.g., Wolfe, 839 F.2d at 776 (revealing status of proposal in deliberative
process "could chill discussions at a time when agency opinions are fluid and
tentative"); Dudman, 815 F.2d at 1568 (revealing editorial judgments would stifle
162. See, e.g., Brinton v. Dep't of State, 636 F.2d 600, 604 (D.C. Cir. 1980) (protecting
identities of attorneys who provided legal advice to Secretary of State); Claudio, No.
H-98-1911, slip op. at 8 (S.D. Tex. May 24, 2000) (accepting agency determination that
release of identities of reports' authors would compromise integrity of agency
decisionmaking process); Cofield v. City of LaGrange, No. 95-179, 1996 WL 32727, at
*6 (D.D.C. Jan. 24, 1996) (finding internal routing notations possibly leading to
identification of employees involved in decisionmaking protectible); Miscavige v. IRS,
No. 91-1638, 1993 WL 389808, at *3 (N.D. Ga. June 15, 1992) (protecting handwritten
signatures of agency employees involved in ongoing examination of church's claim of
exempt status), aff'd on other grounds, 2 F.3d 366 (11th Cir. 1993); see also FOIA
Update, Vol. VI, No. 2, at 6 (discussing circumstances under which it is appropriate
to withhold name of author of requested document); cf. Wolfe, 839 F.2d at 775-76
(discussing how particularized disclosure can chill agency discussions); Greenberg,
10 F. Supp. 2d at 16 n.19 (holding that mere redaction of authors' names would not
remove chilling effect on decisionmaking process).
163. See City of W. Chi., 547 F. Supp at 750 (holding list of contributors to preliminary
draft protectible even though names were in final version); Tax Reform Research
Group v. IRS, 419 F. Supp. 415, 423-24 (D.D.C. 1976) (protecting identities of persons
giving advice on policy matters even though substance of policy discussions had
164. Nadler, 955 F.2d at 1491 (dicta) (considering document "one and one-half pages
165. See Local 3, Int'l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988)
(concluding that short document would be rendered "nonsensical" by segregation);
see also Lead Indus., 610 F.2d at 86 ("Instead of merely combing the documents for
'purely factual' tidbits, the court should have considered the segments in the context
of the whole document and that document's relation to the administrative process.");
Linn v. United States Dep't of Justice, No. 92-1406, 1995 WL 631847, at **30-31 (D.D.C.
Aug. 22, 1995) (holding that agency met burden in showing that in some instances
factual material could not be segregated); Badhwar, 622 F. Supp. at 1375 (finding it
impossible to "reasonably" segregate nondeliberative material from autopsy report);
Morton-Norwich Prods., Inc. v. Mathews, 415 F. Supp. 78, 82 (D.D.C. 1976). But see
Army Times, 998 F.2d at 1070 (emphasizing agency obligation to specifically address
possible segregability and disclosure of factual information); accord FOIA Update,
Vol. XIV, No. 3, at 10-11 ("OIP Guidance: The 'Reasonable Segregation' Obligation").
166. See Hickman v. Taylor, 329 U.S. 495, 509-10 (1947); Fed. R. Civ. P. 26(b)(3)
(codifying privilege in Federal Rules of Civil Procedure).
167. See Jordan v. United States Dep't of Justice, 591 F.2d 753, 775 (D.C. Cir. 1978) (en
168. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 865 (D.C. Cir. 1980).
169. See, e.g., McErlean v. United States Dep't of Justice, No. 97-7831, 1999 WL
791680, at *7 (S.D.N.Y. Sept. 30, 1999) (INS deportation proceeding), amended
(S.D.N.Y. Oct. 29, 1999); Means v. Segal, No. 97-1301, slip op. at 11-12 (D.D.C. Mar. 18,
1998) (magistrate's recommendation) (unfair labor practice determination), adopted
(D.D.C. Apr. 15, 1998), aff'd per curiam, No. 98-5170 (D.C. Cir. Oct. 6, 1998); Williams v.
McCausland, No. 90-Civ-7563, 1994 WL 18510, at *10 (S.D.N.Y. Jan. 18, 1994) (MSPB
proceeding); Exxon Corp. v. Dep't of Energy, 585 F. Supp. 690, 700 (D.D.C. 1983)
(regulatory audits and investigations); see also Judicial Watch, Inc. v. Rossotti, 285 F.
Supp. 2d 17, 30-31 (D.D.C. 2003) (applying privilege to memorandum written by IRS
associate chief counsel that discussed private financial information concerning
prospective IRS employee); cf. Martin v. Office of Special Counsel, 819 F.2d 1181, 1187
(D.C. Cir. 1987) (reaching same result under Exemption (d)(5) of Privacy Act of 1974, 5
U.S.C. Â§ 552a(d)(5) (2000)).
170. See, e.g., Rockwell Int'l Corp. v. United States Dep't of Justice, 235 F.3d 598, 604-05 (D.C. Cir. 2001) (applying privilege in case involving prosecution of environmental
crimes); Nadler v. United States Dep't of Justice, 955 F.2d 1479, 1491-92 (11th Cir. 1992)
(applying privilege in bribery investigation); Antonelli v. Sullivan, 732 F.2d 560, 561
(7th Cir. 1983) (ruling privilege applicable in bank-fraud prosecution); Kendrick v.
Executive Office for United States Attorneys, No. 00-1809, slip op. at 5 (D.D.C. June 14,
2001) (holding privilege applicable to attorney notes prepared for grand jury
proceedings, criminal indictment, and trial); Givner v. Executive Office for United
States Attorneys, No. 99-3454, slip op. at 10-11 (D.D.C. Mar. 1, 2001) (approving
application of privilege to "attorney notes, trial preparation materials, trial research,
directives between government attorneys, witness related [sic] notes and materials,
draft pleadings and draft letters" generated in criminal case); Bartolotta v. FBI, No.
99-1145, slip op. at 8 (D.D.C. July 13, 2000) (approving invocation of the privilege to
protect a memorandum "prepared by an attorney of the Criminal Division that
discusses and analyzes double jeopardy and collateral estoppel issues as they
relate to the viability of contemplated litigation" under the RICO Act); Spannaus v.
United States Dep't of Justice, No. 92-0372, slip op. at 4 (D.D.C. Sept. 30, 1999)
(holding privilege applicable to a document prepared by an Assistant United States
Attorney that discussed grand jury procedures in a criminal case, and stating that
"[i]t is difficult to imagine a more direct application of the work product privilege");
Slater v. Executive Office for United States Attorneys, No. 98-1663, 1999 U.S. Dist.
LEXIS 8399, at *9 (D.D.C. May 24, 1999) (protecting portions of letter from Assistant
United States Attorney to FBI revealing investigative strategy in criminal case);
Telegraph Publ'g Co. v. United States Dep't of Justice, No. 95-521, slip op. at 19-20
(D.N.H. Aug. 31, 1998) (holding privilege applicable to materials prepared by
Assistant United States Attorney in preparation for criminal prosecution);
Rzeslawski v. United States Dep't of Justice, No. 97-1156, slip op. at 9 (D.D.C. July 23,
1998) (affirming use of privilege for Assistant United States Attorney's handwritten
notes reflecting trial preparation in criminal case), appeal dismissed, No. 00-5029
(D.C. Cir. Apr. 11, 2000); see also FOIA Update, Vol. V, No. 2, at 7 (discussing use of
privilege in context of criminal law enforcement investigations). But cf. Powell v.
Dep't of Justice, 584 F. Supp. 1508, 1520 (N.D. Cal. 1984) (suggesting, but not deciding,
that attorney work-product materials generated in criminal case should be subject
to disclosure under criminal discovery provisions).
171. See Strang v. Collyer, 710 F. Supp. 9, 12-13 (D.D.C. 1989), aff'd sub nom. Strang v.
DeSio, 899 F.2d 1268 (D.C. Cir. 1990) (unpublished table decision).
172. See generally FOIA Update, Vol. IV, No. 3, at 6.
173. See Kent Corp. v. NLRB, 530 F.2d 612, 623 (5th Cir. 1976); see, e.g., Hertzberg v.
Veneman, 273 F. Supp. 2d 67, 80 (D.D.C. 2003) (applying privilege in situation where
potential claimants had discussed possibility of pursuing claims); Tax Analysts v.
IRS, 152 F. Supp. 2d 1, 19 (D.D.C. 2001) (protecting document written to assess
"whether a particular case should be designated for litigation"), aff'd in part, rev'd in
part on other grounds & remanded, 294 F.3d 71 (D.C. Cir. 2002); Blazy v. Tenet, 979 F.
Supp. 10, 24 (D.D.C. 1997) (observing that communication between agency employee
review panel and agency attorney throughout process of deciding whether to retain
plaintiff "at the very least demonstrates that the [panel] was concerned about
potential litigation"), summary affirmance granted, No. 97-5330 (D.C. Cir. May 12,
1998); Chemcentral/Grand Rapids Corp. v. EPA, No. 91-C-4380, 1992 WL 281322, at
**3-4 (N.D. Ill. Oct. 6, 1992) (holding that privilege applies to legal advice given for
specific agency cleanup sites); Savada v. DOD, 755 F. Supp. 6, 7 (D.D.C. 1991) (finding
threat of litigation by counsel for adverse party sufficient); cf. Means, No. 97-1301, slip
op. at 11-12 (D.D.C. Mar. 18, 1998) (holding privilege applicable to records prepared
for unfair labor practice complaint that agency later dropped).
174. Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992); see also Delaney, Migdail &
Young, Chartered v. IRS, 826 F.2d 124, 127 (D.C. Cir. 1987) (holding that privilege
extends to documents prepared when identity of prospective litigation opponent
unknown); Hertzberg, 273 F. Supp. 2d at 79 (protecting documents generated in light
of "'strong probability of tort claims'" (quoting agency declaration)); Kelly v. CIA, No.
00-2498, slip op. at 32-36 (D.D.C. Aug. 8, 2002) (applying privilege to protect
documents related to CIA's obligation to notify unwitting participants in drug-testing program and to claims that such individuals might raise in court).
175. SafeCard Servs. v. SEC, 926 F.2d 1197, 1202 (D.C. Cir. 1991); see, e.g., Winterstein
v. United States Dep't of Justice, 89 F. Supp. 2d 79, 81 (D.D.C. 2000) (protecting
prosecution memorandum "prepared for the purpose of pursuing a specific claim --
namely, the contemplated prosecution of Arthur Rudolph"); Germosen v. Cox, No. 98
Civ. 1294, 1999 WL 1021559, at *14 (S.D.N.Y. Nov. 9, 1999) (protecting correspondence
between United States Attorney's Office and Postal Inspection Service regarding
criminal investigative and prosecutive strategy), appeal dismissed for failure to
prosecute, No. 00-6041 (2d Cir. Sept. 12, 2000); Pentagen Techs. Int'l v. United States,
No. 98-4831, 1999 WL 378345, at *3 (S.D.N.Y. June 9, 1999) (upholding application of
privilege to attorney notes regarding qui tam suit in which government ultimately
declined to intervene); LaRouche v. United States Dep't of the Treasury, No. 91-1655,
slip op. at 24-26 (D.D.C. May 22, 1998) (holding that privilege covers letter from
Assistant United States Attorney to IRS official requesting IRS's participation in
ongoing grand jury investigation of plaintiff); Rosenberg v. Freeh, No. 97-0476, slip
op. at 7-8 (D.D.C. May 13, 1998) (protecting documents generated by United States
Attorney's Office during course of considering prosecutive action against subjects of
undercover operation); Sousa v. United States Dep't of Justice, No. 95-375, 1997 U.S.
Dist. LEXIS 9010, at *20 (D.D.C. June 19, 1997) (holding that documents were
described sufficiently to show that murder investigation, leading to potential
prosecution, was underway); Feshbach v. SEC, 5 F. Supp. 2d 774, 783 (N.D. Cal. 1997)
(protecting documents pertaining to preliminary examination "based upon a
suspicion of specific wrongdoing and represent[ing] an effort to obtain evidence and
to build a case against the suspected wrongdoer").
176. Senate of P.R. v. United States Dep't of Justice, 823 F.2d 574, 587 (D.C. Cir. 1987)
(emphasis added) (citing Coastal States, 617 F.2d at 865).
177. See In re Sealed Case, 146 F.3d 881, 885-86 (D.C. Cir. 1998) (protecting document
that provided legal advice intended to protect client from future litigation over
particular transaction, even though no claim had yet arisen) (non-FOIA case);
Schiller, 964 F.2d at 1208 (holding documents that provide tips and instructions for
handling future litigation protectible); Delaney, 826 F.2d at 127 (holding memoranda
that "advise the agency of the types of legal challenges likely to be mounted against
a proposed program, potential defenses available to the agency and the likely
outcome" protectible); Hertzberg, 273 F. Supp. 2d at 78 (protecting documents from
investigation where agency has determined that claims were likely to arise);
Raytheon Aircraft Co. v. United States Army Corps of Eng'rs, 183 F. Supp. 2d 1280,
1289 (D. Kan. 2001) (protecting documents containing guidance for agency attorneys
on litigation of environmental law cases); Bhd. of Locomotive Eng'rs v. Surface
Transp. Bd., No. 96-1153, 1997 WL 446261, at *6 (D.D.C. July 31, 1997) (finding future
litigation "probable" when agency is aware that its legal interpretation will be
contested in court); Direct Response Consulting Serv. v. IRS, No. 94-1156, 1995 WL
623282, at *2 (D.D.C. Aug. 21, 1995) (holding that articulable claim arose when agency
became aware that its position was not accepted by taxpayers); Lacefield v. United
States, No. 92-N-1680, 1993 WL 268392, at *8 (D. Colo. Mar. 10, 1993) (holding that
agency's knowledge that adversary plans to challenge agency position constitutes
sufficient anticipation of articulable claim); Silber v. United States Dep't of Justice,
No. 91-876, transcript at 23-24 (D.D.C. Aug. 13, 1992) (bench order) (deciding that
privilege covers monograph written to assist attorneys in prosecuting cases);
Anderson v. United States Parole Comm'n, 3 Gov't Disclosure Serv. (P-H) Â¶ 83,055, at
83,557 (D.D.C. Jan. 6, 1983) (deciding that privilege covers case digest of legal
theories and defenses frequently used in litigation).
178. See, e.g., Delaney, 826 F.2d at 127 (protecting "agency's attorneys' assessments
of [a] program's legal vulnerabilities" crafted before specific litigation arose);
Heggestad v. United States Dep't of Justice, 182 F. Supp. 2d 1, 8 (D.D.C. 2000) (noting
that the privilege applies "even without a case already docketed or where the
agency is unable to identify the specific claim to which the document relates"); see
also Attorney General's Memorandum for Heads of All Federal Departments and
Agencies Regarding the Freedom of Information Act (Oct. 12, 2001) [hereinafter
Attorney General Ashcroft's FOIA Memorandum], reprinted in FOIA Post (posted
10/15/01) (emphasizing important role of attorney work-product privilege in ensuring
that "lawyers' deliberations and communications are kept private").
179. Wilson v. Dep't of Energy, No. 84-3163, slip op. at 7 n.1 (D.D.C. Jan. 28, 1985); see
also Maine v. United States Dep't of the Interior, 298 F.3d 60, 68 (1st Cir. 2002)
(amended opinion) (concluding that court's earlier opinion, which had required that
litigation be primary factor in creation of documents for which attorney work-product privilege was claimed, was in error); Wood v. FBI, No. 3:02cv2058, 2004 U.S.
Dist LEXIS 5525, at *13 (D. Conn. Mar. 31, 2004) (noting that the work-product
privilege applies if the "'"document can fairly be said to have been prepared or
obtained because of the prospect of litigation"'" (quoting United States v. Adlman,
134 F.3d 1194, 1202 (2d Cir. 1998) (quoting in turn Charles A. Wright, Arthur Miller, and
Richard L. Marcus, 8 Federal Practice and Procedure 343 (1994)))); Hertzberg, 273 F.
Supp. 2d at 80 (D.D.C. 2003) (rejecting "primary purpose" test); Maine v. Norton, 208 F.
Supp. 2d 63, 67 (D. Me. 2002) (applying privilege in civil discovery context to
documents created in ordinary course of agency business, so long as agency could
show that they were prepared in light of possible litigation); Brotherhood, 1997 WL
446261, at *6 (holding that privilege applies where document was created "in part"
for litigation). But see United States v. Gulf Oil Corp., 760 F.2d 292, 296-97 (Temp.
Emer. Ct. App. 1985) (holding, in non-FOIA case, that anticipation of litigation must
be "the primary motivating purpose behind the creation of the document"); Pub.
Citizen Inc. v. Dep't of State, 100 F. Supp. 2d 10, 30 (D.D.C. 2000) (requiring that
litigation be "primary motivating purpose" in document's creation).
180. See Hennessey v. United States Agency for Int'l Dev., No. 97-1113, 1997 WL
537998, at *6 (4th Cir. Sept. 2, 1997) (deciding that a report commissioned to complete
a project was not prepared "because of the prospect of litigation," despite the threat
of suit); Hill Tower, Inc. v. Dep't of the Navy, 718 F. Supp. 562, 567 (N.D. Tex. 1988)
(concluding that aircraft accident investigation information in JAG Manual report
was not created in anticipation of litigation).
181. United States v. Metro. St. Louis Sewer Dist., 952 F.2d 1040, 1044-45 (8th Cir.
1992) (holding that it is "beyond doubt that draft consent decrees prepared by a
federal government agency involved in litigation" are covered by Exemption 5, but
remanding to determine if the privilege was waived); see also Tax Analysts, 152 F.
Supp. 2d at 19 (protecting recommendations concerning settlement of case); Cities
Serv. Co. v. FTC, 627 F. Supp. 827, 832 (D.D.C. 1984) ("attorney's notes or working
papers which relate to . . . possible settlement discussions . . . are protected under
the attorney work-product privilege"), aff'd, 778 F.2d 889 (D.C. Cir. 1985) (unpublished
table decision); Church of Scientology v. IRS, No. 90-11069, slip op. at 20 (D. Mass.
Apr. 22, 1992) (magistrate's recommendation) (holding that fact that parties were
contemplating settlement does not foreclose application of attorney work-product
privilege); cf. Carey-Canada, Inc. v. Aetna Cas. & Sur. Co., 118 F.R.D. 250, 251-52
(D.D.C. 1987) (upholding use of privilege, in non-FOIA case, for documents related to
possible settlement of claims).
182. See, e.g., A. Michael's Piano, Inc. v. FTC, 18 F.3d 138, 146-47 (2d Cir. 1994)
(concluding that exemption still was applicable even if staff attorney was
considering or recommending closing investigation); Heggestad, 182 F. Supp. 2d at
10-11 (holding privilege applicable to prosecution-declination memoranda); cf. Tax
Analysts v. IRS, No. 94-923, slip op. at 6 (D.D.C. Sept. 3, 1999) (protecting record
containing "mental impressions" of agency attorney as to whether agency should
continue to contest certain matters in litigation, or cease litigating case altogether);
Grecco v. Dep't of Justice, No. 97-0419, slip op. at 12 (D.D.C. Apr. 1, 1999) (holding
exemption applicable to records concerning determination whether to appeal lower
183. See FOIA Update, Vol. VI, No. 3, at 5 (analyzing bases for privilege).
184. See Senate of P.R., 823 F.2d at 586; Rashid v. United States Dep't of Justice, No.
99-2461, slip op. at 10-11 (D.D.C. June 12, 2001) (holding privilege inapplicable to
documents drafted after case was settled); Canning v. Dep't of the Treasury, No. 94-2704, slip op. at 12 (D.D.C. May 7, 1998) (holding prosecutor's letter setting forth
reasons relied upon in declining to prosecute case and "written after the conclusion
of the investigation and after the decision to forgo litigation was made," not covered
by privilege); Grine v. Coombs, No. 95-342, 1997 U.S. Dist. LEXIS 19578, at *10 (W.D.
Pa. Oct. 10, 1997) (finding privilege inapplicable where no further agency
enforcement action was contemplated at time of document's creation). But see
Senate of P.R. v. United States Dep't of Justice, No. 84-1829, 1992 WL 119127, at *8
(D.D.C. May 13, 1992) (finding reasonable anticipation of litigation still existed after
case was formally closed, because agency was carefully reevaluating it in light of
185. Dow Jones & Co. v. Dep't of Justice, 724 F. Supp. 985, 989 (D.D.C. 1989), aff'd on
other grounds, 917 F.2d 571 (D.C. Cir. 1990).
186. See, e.g., Cook v. Watt, 597 F. Supp. 545, 548 (D. Alaska 1983).
187. Ill. State Bd. of Educ. v. Bell, No. 84-337, slip op. at 9-10 (D.D.C. May 31, 1985).
188. See, e.g., United States v. Nobles, 422 U.S. 225, 238-39 (1975) (concluding, in a
non-FOIA case, that "the realities of litigation" require that the privilege extend to
material prepared by an attorney's agents); Diversified Indus. v. Meredith, 572 F.2d
596, 603 (8th Cir. 1977) ("While the 'work product' may be, and often is, that of an
attorney, the concept of 'work product' is not confined to information or materials
gathered or assembled by a lawyer.") (non-FOIA case); Hertzberg, 273 F. Supp. 2d at
76 (rejecting claim that privilege is limited to materials prepared by attorney, and
citing Federal Rule of Civil Procedure 26(b)(3) for proposition that privilege extends
to documents created at direction of attorney); Davis v. FTC, No. 96-CIV-9324, 1997
WL 73671, at *2 (S.D.N.Y. Feb. 20, 1997) (protecting material prepared by economists
for administrative hearing); Creel v. United States Dep't of State, No. 6:92CV559, 1993
U.S. Dist. LEXIS 21187, at *27 (E.D. Tex. Sept. 29, 1993) (magistrate's recommendation)
(protecting special agent's notes made while assisting attorney in investigation),
adopted (E.D. Tex. Dec. 30, 1993), aff'd, 42 F.3d 641 (5th Cir. 1995) (unpublished table
decision); Durham v. United States Dep't of Justice, 829 F. Supp. 428, 432-33 (D.D.C.
1993) (protecting material prepared by government personnel under prosecuting
attorney's direction), appeal dismissed for failure to timely file, No. 93-5354 (D.C. Cir.
Nov. 29, 1994); Taylor v. Office of Special Counsel, No. 91-N-734, slip op. at 17 (D. Colo.
Mar. 22, 1993) (holding that privilege covers telephone interview conducted by
examiner at request of attorney); Joint Bd. of Control v. Bureau of Indian Affairs, No.
87-217, slip op. at 9-10 (D. Mont. Sept. 9, 1988) (protecting water studies produced by
contract companies); Nishnic v. United States Dep't of Justice, 671 F. Supp. 771, 772-73 (D.D.C. 1987) (holding historian's research and interviews privileged); Wilson, No.
84-3163, slip op. at 8 (D.D.C. Jan. 28, 1995) (holding consultant's report privileged);
Exxon Corp. v. FTC, 466 F. Supp. 1088, 1099 (D.D.C. 1978) (protecting economist's
report), aff'd, 663 F.2d 120 (D.C. Cir. 1980). But cf. Richman v. United States Dep't of
Justice, No. 90-C-19-C, slip op. at 3 (W.D. Wis. Mar. 2, 1994) (confusing the subtleties
of different privileges to hold that information not prepared "by a lawyer in
preparation for litigation" was not entitled to any protection under Exemption 5
whatsoever); Brittany Dyeing & Printing Corp. v. EPA, No. 91-2711, slip op. at 7-8
(D.D.C. Mar. 12, 1993) (confusing attorney work-product privilege and deliberative
process privilege to hold that witness statements taken by investigator at behest of
counsel cannot be protected because they would "not expose agency
189. See Hall v. Dep't of Justice, No. 87-474, 1989 WL 24542, at **7-8 (D.D.C. Mar. 8,
1989) (magistrate's recommendation) (concluding that agency's affidavit failed to
show that prosecutorial report of investigation was prepared by Marshals Service
personnel under direction of attorney), adopted (D.D.C. July 31, 1989); Nishnic, 671 F.
Supp. at 810-11 (holding that summaries of witness statements taken by USSR
officials for United States Department of Justice are not protectible).
190. See, e.g., Gulf Oil, 760 F.2d at 295-96 (protecting documents shared between
two companies contemplating merger); Chilivis v. SEC, 673 F.2d 1205, 1211-12 (11th
Cir. 1982); Nishnic, 671 F. Supp. at 775 (protecting documents shared with foreign
nation); cf. Rashid, No. 99-2461, slip op. at 10 (D.D.C. June 12, 2001) (holding privilege
inapplicable because agency failed to demonstrate common interest with third
parties to whom it disclosed documents); Dep't of the Interior v. Klamath Water
Users Protective Ass'n, 532 U.S. 1, 15-16 (2001) (declining to extend Exemption 5
threshold to protect communications between agency and Indian tribes, despite
fiduciary obligation of agency acting as trustee to protect confidentiality of such
191. See Uribe v. Executive Office for United States Attorneys, No. 87-1836, 1989 U.S.
Dist. LEXIS 5691, at **6-7 (D.D.C. May 23, 1989) (protecting criminal prosecution
declination memorandum); Iglesias v. CIA, 525 F. Supp. 547, 559 (D.D.C. 1981) ("[A]ny
argument to the effect that the attorney's opinions in question may have become the
basis for final agency action is irrelevant [to the applicability of] the work-product
privilege."); FOIA Update, Vol. VI, No. 3, at 5; see also Fed. Open Mkt. Comm. v.
Merrill, 434 U.S. 340, 360 n.23 (1979) (protecting final determination under commercial
privilege); cf. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 160 (1975) (holding that
memoranda reflecting an agency decision to prosecute do not constitute a "final
disposition" of the "case" within the meaning of subsection (a)(2) of the FOIA). But
see Grolier, 462 U.S. at 32 n.4 (Brennan, J., concurring) ("[I]t is difficult to imagine how
a final decision could be 'prepared in anticipation of litigation or for trial.'").
192. 421 U.S. 132 (1975).
193. Id. at 160.
194. Id. at 153-54.
195. See FOIA Update, Vol. XIII, No. 3, at 3-4 ("OIP Guidance: The 'Automatic'
Disclosure Provisions of FOIA: Subsections (a)(1) & (a)(2)"); see also FOIA Update,
Vol. XVII, No. 4, at 1-2 (describing amendments to subsection (a)(2)).
196. See, e.g., Bristol-Meyers Co. v. FTC, 598 F.2d 18, 24 n.11, 29 (D.C. Cir. 1978) (citing
Sears for earlier proposition that document will lose work-product protection if it is
expressly adopted as agency policy or is incorporated into agency's "final opinion").
197. 443 U.S. 340 (1979).
198. Id. at 360 n.23 (clarifying that Sears observations were made in relation to
privilege for predecisional communications only).
199. Id. ("It should be obvious that the kind of mutually exclusive relationship
between final opinions and statements of policy, on one hand, and predecisional
communications, on the other, does not necessarily exist between final statements
of policy and other Exemption 5 privileges."); see also Tax Analysts, 152 F. Supp. 2d
at 29 (citing Merrill for the proposition that "agency working law contained in a
privileged attorney work product is exempt material in and of itself" and, therefore,
"need not be segregated and disclosed"). But see SafeCard, 926 F.2d at 1203-05, 1206
(mistakenly applying Bristol-Meyers, a pre-Merrill decision, in requiring the release of
work product that memorializes a final decision); Richman v. United States Dep't of
Justice, No. 90-C-19-C, slip op. at 9 (W.D. Wis. Feb. 2, 1994) (mistakenly concluding
that work-product privilege applies only when information is predecisional).
200. 465 U.S. 792 (1984).
201. 462 U.S. 19 (1983).
202. Fed. R. Civ. P. 26(b)(3).
203. 462 U.S. at 26; see also Sears, 421 U.S. at 149 & n.16.
204. Fed. R. Civ. P. 26(b)(3); see, e.g., Maine v. Norton, 208 F. Supp. 2d at 66-67
(holding, in civil discovery context, that civil litigants seeking discovery can show
"particularized need" for documents withheld under deliberative process privilege,
and "substantial need and undue hardship" for documents withheld under attorney
work-product privilege, in order to overcome opponent's assertion of privilege).
205. 465 U.S. at 799; see also Wood, 2004 U.S. Dist LEXIS at *14 (noting that because
in civil discovery context work-product privilege can be overcome only upon showing
of substantial need, such documents are never "routinely disclosed" and hence are
always protected in FOIA context); cf. Chaplaincy of Full Gospel Churches v.
Johnson, 217 F.R.D. 250, 257 (D.D.C. 2003) (holding, in non-FOIA case, that defendant
could not use deliberative process privilege to object to plaintiff's discovery request
where plaintiff had provided "adequate factual basis" for allegation of government
misconduct and where requested documents would support plaintiff's allegation)
206. See Robbins Tire & Rubber Co. v. NLRB, 563 F.2d 724, 735 (5th Cir. 1977), rev'd on
other grounds, 437 U.S. 214 (1978); Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1138
(4th Cir. 1977); Title Guar. Co. v. NLRB, 534 F.2d 484, 492-93 n.15 (2d Cir. 1976).
207. Cf. Judicial Watch, Inc. v. Dep't of Justice, No. 02-348, slip op. at 2-3 (D.D.C. Mar.
31, 2004) (holding that documents in question were properly withheld pursuant to
attorney work-product privilege, but concluding incorrectly that agency must
somehow still segregate unspecified portions for disclosure), stay granted pending
resolution of agency's pending motion for reconsideration (D.D.C. Apr. 8, 2004).
208. See Martin, 819 F.2d at 1187 ("The work-product privilege simply does not
distinguish between factual and deliberative material."); see also Tax Analysts v.
IRS, 117 F.3d 607, 620 (D.C. Cir. 1997) (holding that district court was in error to limit
protection to "the mental impressions, conclusions, opinions, or legal theories of an
attorney"); A. Michael's Piano, 18 F.3d at 147 ("The work product privilege draws no
distinction between materials that are factual in nature and those that are
deliberative."); Norwood v. FAA, 993 F.2d 570, 576 (6th Cir. 1993) (holding that work-product privilege protects documents regardless of status as factual or
deliberative); Nadler, 955 F.2d at 1492 ("[U]nlike the deliberative process privilege,
the work-product privilege encompasses factual materials."); Raytheon, 183 F. Supp.
2d at 1292 (rejecting plaintiff's contention that agency must segregate and release
factual work-product material); Allnutt v. United States Dep't of Justice, Nos. Civ. Y-98-901, 2000 WL 852455, at *9 (D. Md. Oct. 23, 2000) (recognizing that the attorney
work-product privilege encompasses both deliberative materials and "all factual
materials prepared in anticipation of the litigation"), aff'd, No. 01-1038, 2001 WL
468134, at *1 (4th Cir. May 3, 2001); May v. IRS, 85 F. Supp. 2d 939, 950 (W.D. Mo. 1999)
(protecting both "the factual basis for [a] potential prosecution and an analysis of the
applicable law"); Rugiero v. United States Dep't of Justice, 35 F. Supp. 2d 977, 984
(E.D. Mich. 1998) ("[T]he law is clear that . . . both factual and deliberative work
product are exempt from release under FOIA."), aff'd in part & remanded in part on
other grounds, 257 F.3d 534, 552-53 (6th Cir. 2001), cert. denied, 534 U.S. 1134 (2002);
Manchester v. DEA, 823 F. Supp. 1259, 1269 (E.D. Pa. 1993) (deciding that segregation
not required where "factual information is incidental to, and bound with, privileged"
information); Manna v. United States Dep't of Justice, 815 F. Supp. 798, 814 (D.N.J.
1993) (following Martin), aff'd on other grounds, 51 F.3d 1158 (3d Cir. 1995); United
Techs. Corp. v. NLRB, 632 F. Supp. 776, 781 (D. Conn. 1985) ("[I]f a document is
attorney work product the entire document is privileged."), aff'd on other grounds,
777 F.2d 90 (2d Cir. 1985); accord FOIA Update, Vol. V, No. 4, at 6. But see Nickerson
v. United States, 95-C-7395, 1996 WL 563465, at *3 (N.D. Ill. Oct. 1, 1996) (mistakenly
ruling that facts must be segregated under privilege); Fine v. United States Dep't of
Energy, 830 F. Supp. 570, 574-76 (D.N.M. 1993) (refusing to follow Martin and instead
mistakenly following Robbins Tire and Deering Milliken); cf. Tax Analysts v. IRS, No.
94-923, 1998 WL 419755, at *3 (D.D.C. May 1, 1998) (requiring agency to disclose
"agency working law, legal analysis, and conclusions, so long as the 'mental
impressions, conclusions, opinions, or legal theories of an attorney' are protected"
(quoting Tax Analysts, 117 F.3d at 619 (D.C. Cir. 1997)), because to allow otherwise
would "eviscerate" the court of appeals' ruling that agency must release its field
service advice memoranda to requester), appeal dismissed voluntarily, No. 94-00923
(D.C. Cir. Aug. 11, 1998).
209. See, e.g., Linn v. United States Dep't of Justice, No. 92-1406, 1995 WL 417810, at
**19, 29-30 (D.D.C. June 6, 1995) (requiring that agency specifically explain why
material protected by privilege); Kronberg v. United States Dep't of Justice, 875 F.
Supp. 861, 869 (D.D.C. 1995) (requiring agency to show how privilege applies); cf.
Dayton Newspapers, Inc. v. United States Dep't of the Navy, No. C-3-95-328, slip op.
at 60-61 (S.D. Ohio Sept. 12, 1996) (ordering defendant to make affirmative showing
that information for which it claimed privilege had been safeguarded against
210. See Hickman, 329 U.S. at 511.
211. See Martin, 819 F.2d at 1187.
212. See, e.g., Uribe, 1989 U.S. Dist. LEXIS 5691, at *7 (declaring that statements
made by plaintiff during his interrogation did not "represent the attorney's
conclusions, recommendations and opinions"); Wayland v. NLRB, 627 F. Supp. 1473,
1476 (M.D. Tenn. 1986) (reasoning erroneously that because the witness statements
in question were not shown to be other than an objective reporting of facts, they "do
not reflect the attorney's theory of the case and his litigation strategy" and therefore
cannot be protected).
213. See FOIA Update, Vol. VIII, No. 2, at 4-5 ("OIP Guidance: Broad Protection for
Witness Statements") (surveying case law on protection of witness statements).
214. 329 U.S. 495 (1947).
215. See id. at 512-13 ("Under ordinary conditions, forcing an attorney to repeat or
write out all that witnesses have told him and to deliver the account to his adversary
gives rise to grave dangers of inaccuracy and untrustworthiness. No legitimate
purpose is served by such production.").
216. 316 F.2d 336, 338 (D.C. Cir. 1963).
217. 465 U.S. at 799; see also Badhwar v. United States Dep't of the Air Force, 829
F.2d 182, 185 (D.C. Cir. 1987) ("[T]he disclosure of 'factual' information that may have
been volunteered would defeat the policy on which the Machin privilege is based.").
218. 462 U.S. at 28; cf. Clark-Cowlitz Joint Operating Agency v. FERC, 798 F.2d 499,
502-03 (D.C. Cir. 1986) (en banc) (reaching same result under Government in the
Sunshine Act, 5 U.S.C. Â§ 552b (2000)).
219. See Gutman v. United States Dep't of Justice, 238 F. Supp. 2d 284, 294-95 (D.D.C.
2003) (holding that attorney work-product privilege applies to documents prepared
to advise Attorney General that government had appealed judge's decision to
release requester on bond, even though by time of FOIA litigation requester had
been convicted and was serving prison sentence); see also FOIA Update, Vol. IV, No.
3, at 1-2 (discussing Supreme Court's rejection in Grolier of any temporal limitation on
attorney work-product privilege).
220. See Moody v. IRS, 654 F.2d 795, 801 (D.C. Cir. 1981) (remanding to the district
court for an evaluation of the attorney's conduct and, "if it is found [to be] in violation
of professional standards, a determination of whether his breach of professional
standards vitiated the work product privilege" otherwise applicable to the withheld
material); see also Rashid, No. 99-2461, slip op. at 7-8 (D.D.C. June 12, 2001) ("While
there are cases in which a lawyer's conduct may render inapplicable the work-product privilege . . . this is clearly not one of them."); cf. Chaplaincy of Full Gospel
Churches, 217 F.R.D. at 256-58 (discussing, in non-FOIA case, circumstances under
which allegation of governmental wrongdoing can be used to overcome deliberative
process privilege); Alexander v. FBI, 198 F.R.D. 306, 311 (D.D.C. 2000) (holding, in non-FOIA case, that plaintiff could not overcome attorney-client privilege because it had
not shown that defendant had sought counsel for purpose of furthering crime or
fraud). But cf. NARA v. Favish, 124 S. Ct. 1570, 1581 (2004) (holding that where a FOIA
requester makes an allegation of government misconduct in an effort to overcome a
privacy interest under Exemption 7(C), "bare suspicion" is not enough, because "the
requester must produce evidence that would warrant a belief by a reasonable
person that the alleged Government impropriety might [actually] have occurred").
221. See Winterstein, 89 F. Supp. 2d at 82.
222. See Attorney General Ashcroft's FOIA Memorandum, reprinted in FOIA Post
(posted 10/15/01) (emphasizing importance and viability of privileges that are
applicable under Exemption 5).
223. Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 252
(D.C. Cir. 1977).
224. See, e.g., Mead Data, 566 F.2d at 252-53 (distinguishing attorney-client privilege
from attorney work-product privilege, which is limited to litigation context); Crooker
v. IRS, No. 94-0755, 1995 WL 430605, at *7 (D.D.C. Apr. 27, 1995) ("Unlike [with] the
work product privilege, an agency may claim the attorney-client privilege for
information outside the context of litigation.").
225. See, e.g., Jernigan v. Dep't of the Air Force, No. 97-35930, 1998 WL 658662, at *2
(9th Cir. Sept. 17, 1998) (holding that privilege covers agency attorney's legal review
of internal "Social Action" investigation); Schlefer, 702 F.2d at 244 n.26 (observing that
privilege "permits nondisclosure of an attorney's opinion or advice in order to protect
the secrecy of the underlying facts"); Kelly v. CIA, No. 00-2498, slip op. at 21-22 (D.D.C.
Aug. 8, 2002) (applying privilege to advice provided by CIA's counsel to CIA deputy
director concerning CIA's budget, which is not matter of public record); Barmes v.
IRS, 60 F. Supp. 2d 896, 901 (S.D. Ind. 1998) (protecting material "prepared by an IRS
attorney in response to a request by a revenue officer to file certain liens pursuant to
collection efforts against the plaintiffs"); Wishart v. Comm'r, No. 97-20614, 1998 U.S.
Dist. LEXIS, at *16 (N.D. Cal. Aug. 6, 1998) (stating that privilege protects documents
"created by attorneys and by the individually-named [defendant] employees for
purposes of obtaining legal representation from the government"), aff'd, 1999 WL
985142 (9th Cir. Oct. 18, 1999); Cujas v. IRS, No. 1:97CV00741, 1998 U.S. Dist. LEXIS
6466, at *19 (M.D.N.C. Apr. 15, 1998) (holding that privilege encompasses "notes of a
revenue officer . . . reflecting the confidential legal advice that the agency's District
Counsel orally gave the officer in response to a proposed course of action"), aff'd, No.
98-1641 (4th Cir. Aug. 25, 1998); Ludsin v. SBA, No. 96-2865, slip op. at 3 (D.D.C. Apr. 24,
1997) (holding that privilege covers intra-agency memoranda containing agency
attorney's "legal conclusions and reasoning"); Linn v. United States Dep't of Justice,
No. 92-1406, 1995 WL 631847, at **32-33 (D.D.C. Aug. 22, 1995) (protecting confidential
legal advice given in course of grand jury investigation); NBC v. SBA, 836 F. Supp. 121,
124-25 (S.D.N.Y. 1993) (holding that privilege covers "professional advice given by
attorney that discloses" information given by client); cf. Direct Response Consulting
Serv. v. IRS, No. 94-1156, 1995 WL 623282, at *3 (D.D.C. Aug. 21, 1995) (finding privilege
inapplicable to attorney's memoranda to file which were never communicated to
client). But see Lee v. FDIC, 923 F. Supp. 451, 457-58 (S.D.N.Y. 1996) (declaring,
without authority, that documents containing only "standard legal analysis" are not
covered by privilege); cf. Brinton v. Dep't of State, 636 F.2d 600, 603 (D.C. Cir. 1980)
("[I]t is clear that when an attorney conveys to his client facts acquired from other
persons or sources, those facts are not privileged" unless they reflect client
226. See, e.g., McErlean v. United States Dep't of Justice, No. 97-7831, 1999 WL
791680, at *7 (S.D.N.Y. Sept. 30, 1999); Buckner v. IRS, No. 1:97-CV-414, 1998 U.S. Dist.
LEXIS 12449, at *19 (N.D. Ind. July 24, 1998); Green v. IRS, 556 F. Supp. 79, 85 (N.D. Ind.
1982), aff'd, 734 F.2d 18 (7th Cir. 1984) (unpublished table decision).
227. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); see also FOIA Update, Vol.
VI, No. 2, at 3-4 ("OIP Guidance: The Attorney-Client Privilege"); cf. Swidler & Berlin v.
United States, 524 U.S. 399, 407 (1998) (addressing the privilege in the context of a
criminal investigation, and observing that "there is no case authority for the
proposition that the privilege applies differently [with respect to applicability after
client's death] in criminal and civil cases").
228. 465 U.S. 792 (1984).
229. 462 U.S. 19 (1983).
230. 465 U.S. at 799-800; 462 U.S. at 26-28; cf. In re Lindsey, 148 F.3d 1100, 1114 (D.C.
Cir. 1998) (stating that, in criminal context, "government attorney-client privilege"
does not shield "information related to criminal misconduct") (non-FOIA case); In re
Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 921 (8th Cir. 1997) (same) (non-FOIA case).
231. See, e.g., Mead Data, 566 F.2d at 255 & n.28.
232. See FOIA Update, Vol. VI, No. 2, at 3-4.
233. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980)).
But see also Maine v. United States Dep't of the Interior, 298 F.3d 60, 71-72 (1st Cir.
2002) (amended opinion) (holding that district court did not err in finding privilege
inapplicable where defendants failed to show confidentiality of factual
communications); Mead Data, 566 F.2d at 252-53 (requiring government to make
affirmative showing of confidentiality for privilege to apply); Dow, Lohnes &
Albertson v. Presidential Comm'n on Broad. to Cuba, 624 F. Supp. 572, 578 (D.D.C.
1984) (holding that confidentiality must be shown in order to properly invoke
Exemption 5); cf. Brinton v. Dep't of State, 636 F.2d 600, 605 (D.C. Cir. 1980) (holding
district court record insufficient to support claim of privilege because it contained
"no finding that the communications are based on or related to confidences from the
client"); Dayton Newspapers, Inc. v. United States Dep't of the Navy, No. C-3-95-328,
slip op. at 59 (S.D. Ohio Sept. 12, 1996) (ordering agency to make affirmative showing
that information for which it claimed privilege had been safeguarded against
234. 449 U.S. at 395-96; see also United States v. Cunningham, 672 F.2d 1064, 1073 n.8
(2d Cir. 1982); In re Diet Drugs Prods. Liability Litig., No. 1203, 2000 WL 1545028, at *5
(E.D. Pa. Oct. 12, 2000) ("While the underlying facts discussed in these
communications may not be privileged, the communications themselves are
privileged."); Judicial Watch, Inc. v. Comm'n on United States-Pac. Trade & Inv.
Policy, No. 97-0099, slip op. at 17 (D.D.C. Sept. 30, 1999) (citing Upjohn); In re Ampicillin
Antitrust Litig., 81 F.R.D. 377, 388 (D.D.C. 1978) (holding that privilege applies even
where information in question was not confidential, so long as client intended that
information be conveyed confidentially).
235. See, e.g., Tax Analysts v. IRS, 117 F.3d 607, 618-20 (D.C. Cir. 1997); Schlefer, 702
F.2d at 245; Brinton, 636 F.2d at 604; Mead Data, 566 F.2d at 255.
236. See FOIA Update, Vol. VI, No. 2, at 4 (advising that "agencies should disregard
the restrictive, pre-Upjohn limitation on the attorney-client privilege applied by the
D.C. Circuit in Mead Data and Brinton").
237. 449 U.S. at 392-97.
238. See id.; see also Sherlock v. United States, No. 93-0650, 1994 WL 10186, at *3
(E.D. La. Jan. 12, 1994) (holding privilege applicable to communications from
collection officer to district counsel); Murphy v. TVA, 571 F. Supp. 502, 506 (D.D.C.
1983) (holding that circulation of information within agency to employees involved in
matter for which advice sought does not breach confidentiality); LSB Indus. v.
Comm'r, 556 F. Supp. 40, 43 (W.D. Okla. 1982) (protecting information provided by
agency investigators and used by agency attorneys).
239. See Tax Analysts, 117 F.3d at 619-20.
240. See Ass'n for Women in Sci. v. Califano, 566 F.2d 339, 342 (D.C. Cir. 1977); see
also Badhwar v. United States Dep't of the Air Force, 829 F.2d 182, 184 (D.C. Cir. 1987)
("To decide [whether a recognized privilege should be abandoned] in a FOIA case
would be inappropriate, as Exemption 5 requires the application of existing rules
regarding discovery, not their reformulation.").
241. See United States v. Weber Aircraft Corp., 465 U.S. 792, 799-800 (1984); FTC v.
Grolier Inc., 462 U.S. 19, 26-27 (1983).
242. See Trammel v. United States, 445 U.S. 40, 47 (1980); see, e.g., Goodyear Tire &
Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 980 (6th Cir. 2003) (recognizing,
in a non-FOIA case, the settlement-negotiation privilege, which "fosters a more
efficient, more cost-effective, and significantly less burdened judicial system");
Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1124-25 (7th Cir. 1997) (recognizing
judge-fashioned "law enforcement investigatory privilege") (non-FOIA case); Kientzy
v. McDonnell Douglas Corp., 133 F.R.D. 570, 571-73 (E.D. Mo. 1991) (recognizing
"ombudsman privilege" under Rule 501 of Federal Rules of Evidence) (non-FOIA
case); Shabazz v. Scurr, 662 F. Supp. 90, 92 (S.D. Iowa 1987) (same) (non-FOIA case);
see also In re Sealed Case, 121 F.3d 729, 751-52 (D.C. Cir. 1997) (recognizing
"presidential communications privilege" that applies to "communications made by
presidential advisers in the course of preparing advice for the President . . . even
when these communications are not made directly to the President") (non-FOIA
case). But cf. In re Sealed Case, 148 F.3d 1073, 1079 (D.C. Cir. 1998) (declining to
recognize proposed "protective function privilege") (non-FOIA case).
243. See, e.g., FOIA Update, Vol. VI, No. 4, at 3-4 (suggesting that new privilege for
settlement-negotiation records should be recognized under the FOIA). But see also
Burka v. HHS, 87 F.3d 508, 517 (D.C. Cir. 1996) (holding that for record to be found
privileged, agency must show that it is protected in discovery for reasons similar to
those used by agency in FOIA context).
244. See, e.g., United States Dep't of Justice v. Julian, 486 U.S. 1, 9 (1988) (holding
that presentence report privilege, designed to protect report's subjects, cannot be
invoked against them as first-party requesters); cf. Badhwar, 829 F.2d at 184
("Exemption 5 requires application of existing rules regarding discovery, not their
245. 443 U.S. 340 (1979).
246. Id. at 360.
247. Id. at 363.
248. Taylor Woodrow Int'l v. United States, No. 88-429, 1989 WL 1095561, at *3 (W.D.
Wash. Apr. 6, 1989) (concluding that disclosure would permit requester to take
"unfair commercial advantage" of agency).
249. See 443 U.S. at 360.
250. Burka, 87 F.3d at 517; see also Sw. Ctr. for Biological Diversity v. USDA, 170 F.
Supp. 2d 931, 942-43 (D. Ariz. 2000) (rejecting proposed "research data privilege" on
basis that such information is routinely discoverable in civil litigation), aff'd on other
grounds, 314 F.3d 1060 (9th Cir. 2002). But see Hornbostel v. United States Dep't of
the Interior, 305 F. Supp. 2d 21, 32-33 (D.D.C. 2003) (citing Burka and recognizing
privilege for "confidential research information," but refusing to allow withholding of
documents under it because agency had not satisfied its burden of demonstrating
that privilege was being used in FOIA context for reasons similar to its use in civil
251. See Gov't Land Bank v. GSA, 671 F.2d 663, 665-66 (1st Cir. 1982) ("FOIA should
not be used to allow the government's customers to pick the taxpayers' pockets.").
252. See Marriott Employees' Fed. Credit Union v. Nat'l Credit Union Admin., No. 96-478-A, slip op. at 3 (E.D. Va. Dec. 24, 1996).
253. See Morrison-Knudsen Co. v. Dep't of the Army of the United States, 595 F.
Supp. 352, 354-56 (D.D.C. 1984), aff'd, 762 F.2d 138 (D.C. Cir. 1985) (unpublished table
254. See Hack v. Dep't of Energy, 538 F. Supp. 1098, 1100 (D.D.C. 1982); see also FOIA
Update, Vol. IV, No. 4, at 14-15. But see Am. Soc'y of Pension Actuaries v. Pension
Benefit Guar. Corp., No. 82-2806, slip op. at 3-4 (D.D.C. July 22, 1983) (distinguishing
Merrill). See generally Steven W. Feldman, The Government's Commercial Data
Privilege Under Exemption Five of the Freedom of Information Act, 105 Mil. L. Rev.
125 (1984); Theodore T. Belazis, The Government's Commercial Information Privilege:
Technical Information and the FOIA's Exemption 5, 33 Admin. L. Rev. 415 (1981).
255. See Shermco Indus. v. Sec'y of the Air Force, 613 F.2d 1314, 1319-20 n.11 (5th Cir.
1980); see also News Group Boston, Inc. v. Nat'l R.R. Passenger Corp., 799 F. Supp.
1264, 1270 (D. Mass. 1992) (finding affidavits insufficient to show why Amtrak payroll
information is covered by privilege), appeal dismissed voluntarily, No. 92-2250 (1st
Cir. Dec. 4, 1992).
256. 465 U.S. at 799.
257. See id. at 798-99 (noting that privilege for accident investigation privilege was
first recognized in Machin v. Zuckert, 316 F.2d 336, 338 (D.C. Cir. 1963), and holding
that it applies in FOIA context as well).
258. Weber Aircraft, 465 U.S. at 800.
259. Id. at 804; see also FOIA Update, Vol. V, No. 2, at 12-13.
260. 465 U.S. at 802.
261. See id.
262. See also Badhwar, 829 F.2d at 185 (privilege applied to contractor report).
263. See Ahearn v. United States Army Materials & Mechs. Research Ctr., 583 F.
Supp. 1123, 1124 (D. Mass. 1984); see also Walsh v. Dep't of the Navy, No. 91-C-7410,
1992 WL 67845, at *4 (N.D. Ill. Mar. 23, 1992); AFGE v. Dep't of the Army, 441 F. Supp.
1308, 1313 (D.D.C. 1977). But see Nickerson v. United States, No. 95-C-7395, 1996 WL
563465, at *3 (N.D. Ill. Oct. 1, 1996) (holding privilege not applicable to statements
made in course of medical malpractice investigation); Wash. Post Co. v. United
States Dep't of the Air Force, 617 F. Supp. 602, 606-07 (D.D.C. 1985) (finding privilege
inapplicable when report format provided anonymity to witnesses).
264. 611 F.2d 1132, 1141 (5th Cir. 1980).
265. Id. at 1135.
266. Id. at 1142; cf. Chem. Mfrs. Ass'n v. Consumer Prod. Safety Comm'n, 600 F. Supp.
114, 118-19 (D.D.C. 1984) (observing that Rule 26(b)(4) provides parallel protection in
civil discovery for opinions of expert witnesses who do not testify at trial).
267. See In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997).
268. No. 03-5093, 2004 WL 980826, at *14 (D.C. Cir. May 7, 2004).
269. 2004 WL 980826, at *4 (quoting United States v. Nixon, 418 U.S. 683, 708 (1974)).
270. Id. (quoting In re Sealed Case, 121 F.3d at 745).
271. Compare id. at *14 (holding that privilege is limited to communications sent
directly to the President or his immediate advisors in Office of the President), with
id. at **19-22 (Randolph, J., dissenting) (urging that coverage be extended to intra-agency records that assist in the President's decisionmaking even though not sent to
the President or his immediate staff).
272. 532 U.S. 1 (2001).
273. See FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01)
(analyzing contour and potential impact of Klamath decision).
274. See id. (pointing out the respective limits of Klamath's applicability to
settlement documents sent to and from an agency).
275. See id. Compare Ctr. for Int'l Envtl. Law v. Office of the United States Trade
Representative, 237 F. Supp. 2d 17, 27 (D.D.C. 2002) (misapplying Klamath to records
of bilateral trade negotiations).
276. See County of Madison v. United States Dep't of Justice, 641 F.2d 1036, 1042 (1st
Cir. 1981) (concluding that although "[w]e confess to feeling a sense of indecent
exposure in countenancing a third[-]party adversary obtaining confidential
exchanges between the Indians' attorneys and the government . . . we cannot agree
that this means that [the] Indians are 'within' the Department of Justice"); M/A-COM
Info. Sys. v. HHS, 656 F. Supp. 691, 692 (D.D.C. 1986) (applying the privilege under
Exemption 4 but not under Exemption 5, on the basis that Exemption 5 "does not
cover papers exchanged between a government agency and an outside adverse
party . . . [but] by its terms covers only 'inter' or 'intra' agency documents"); NAACP
Legal Def. & Educ. Fund, Inc. v. United States Dep't of Justice, 612 F. Supp. 1143,
1145-46 (D.D.C. 1985) (deciding that adversaries in litigation with an agency cannot
"be viewed as being part of a federal agency or acting in consultation with the
agency"); Norwood v. FAA, 580 F. Supp. 994, 1002-03 (W.D. Tenn. 1984) (citing County
of Madison for proposition that settlement records are "not exempt as inter-agency
or intra-agency memos") (on motion for clarification and reconsideration); Ctr. for
Auto Safety v. Dep't of Justice, 576 F. Supp. 739, 747-49 (D.D.C. 1983) (holding that
records "prepared by and disclosed or transmitted to" defendants in an antitrust
case "are no longer 'inter-agency or intra-agency' documents and are [thus] beyond
the scope" of Exemption 5).
277. County of Madison, 641 F.2d at 1040.
278. See id.; see also, e.g., Ctr. for Auto Safety, 576 F. Supp. at 746 n.18 (quoting
County of Madison, 641 F.2d at 1040); Murphy v. TVA, 571 F. Supp. 502, 506 (D.D.C.
1983) (observing that public policy favoring compromise over confrontation would be
"seriously undermined" if internal documents reflecting employees' thoughts during
course of negotiations were released); President George Washington, Message to
United States House of Representatives, Mar. 30, 1796 (expounding authoritatively as
well as presciently on need for secrecy in negotiations because of "pernicious
influence" on future negotiations that could be occasioned by any public disclosure
of such negotiations' substance); cf. Mark H. Grunewald, Freedom of Information and
Confidentiality Under the Administrative Dispute Resolution Act, 9 Admin. L.J. 985
(1996) (discussing the governmental preference for settlement over litigation, the use
of the Administrative Dispute Resolution Act, 5 U.S.C. Â§Â§ 571-83 (2004), to promote
this goal, and the need for a statute protecting documents exchanged as part of
ADRA proceedings from FOIA requests -- which was included as part of the 1996
amendments to the ADRA, 5 U.S.C. Â§ 574(j) (2000)).
279. Fulbright & Jaworski v. Dep't of the Treasury, 545 F. Supp. 615, 620 (D.D.C. 1982).
280. See Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir.
1980) (deliberative process privilege); Finkel v. HUD, No. 90-3106, 1995 WL 151790, at
**3-4 (E.D.N.Y. Mar. 28, 1995) (deliberative process privilege), aff'd, No. 95-6112, 1996
U.S. App. LEXIS 2895, at *1 (2d Cir. Feb. 21, 1996); Wilson v. Dep't of Justice, No. 87-2415, slip op. at 8-11 (D.D.C. June 14, 1992) (attorney work-product privilege); Cities
Serv. Co. v. FTC, 627 F. Supp. 827, 832 (D.D.C. 1984) (attorney work-product privilege),
aff'd, 778 F.2d 889 (D.C. Cir. 1985) (unpublished table decision); see also FOIA Update,
Vol. III, No. 3, at 10; cf. United States v. Metro. St. Louis Sewer Dist., 952 F.2d 1040,
1045 (8th Cir. 1992) (holding draft consent decrees covered by both deliberative
process and attorney work-product privileges; remanded for determination of
whether privileges waived); Greenberg v. United States Dep't of Treasury, 10 F.
Supp. 2d 3, 17 (D.D.C. 1998) (remanding to agency for determination of whether
document contained "evaluations" of settlement negotiation process covered by
deliberative process privilege or merely nonprotectible "factual" descriptions). But
cf. Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 257-58
(D.C. Cir. 1977) (finding that certain documents prepared by agency concerning
negotiations failed to reveal any inter-agency deliberations and therefore were not
281. See M/A-COM, 656 F. Supp. at 692 (applying privilege under Exemption 4 to
protect commercial information submitted to government in course of settlement
282. FTC v. Grolier Inc., 462 U.S. 19, 31 (1983) (Brennan, J., concurring) (emphasis
283. 332 F.3d 976 (6th Cir. 2003).
284. See Jaffee v. Redmond, 518 U.S. 1, 8-9 (1996) (discussing conditions under which
new privileges may be recognized).
285. See 332 F.3d at 981 ("[A]ny communications made in furtherance of settlement
are privileged.") (emphasis added).
286. See FOIA Update, Vol. VI, No. 4, at 3-4 ("OIP Guidance: Protecting Settlement
Negotiations") (citing earlier case law that initially recognized privilege); accord
Weber Aircraft, 465 U.S. at 801-02 (comparably recognizing a privilege under
Exemption 5 because to do otherwise would circumvent "the weighty policies
underlying discovery privileges" and create "an anomaly in that FOIA could be used
to supplement discovery").
287. See, e.g., Butta-Brinkman v. FCA Int'l, 164 F.R.D. 475, 477 (N.D. Ill. 1995) ("Absent
a showing [that plaintiff] will be unable to obtain the relevant information through
other discovery requests or interrogatories, we believe these settlement documents
ought to retain their confidentiality."); SEC v. Thrasher, No. 92-6987, 1995 WL 552719,
at *1 (S.D.N.Y. Sept. 18, 1995) (refusing to order production of settlement
communications because discovering party failed to make compelling showing of
need); Matsushita Elec. Corp. v. Loral Corp., No. 92-5461, 1995 WL 527640, at *4
(S.D.N.Y. Sept. 7, 1995) ("[I]t is reasonable to require that the discovering party, as the
price for obtaining such potentially disruptive disclosure [of settlement
communications], make a fairly compelling showing that it needs the information.");
Riddell Sports, Inc. v. Brooks, No. 92-7851, 1995 WL 20260, at *1 (S.D.N.Y. Jan. 19, 1995)
(holding that in absence of particularized showing that they are likely to lead to
admissible evidence, documents concerning settlement are "presumed irrelevant
and need not be produced"); Morse/ Diesel, Inc. v. Trinity Indus., Inc., 142 F.R.D. 80, 84
(S.D.N.Y. 1992) (concluding that the "particularized showing" requirement "places the
burden of establishing relevance squarely on the party seeking production" of
settlement communications); Bottaro v. Hatton Assocs., 96 F.R.D. 158, 159-60
(E.D.N.Y. 1982) (requiring a defendant to make "some particularized showing of a
likelihood that admissible evidence will be generated by the dissemination of the
terms of a settlement agreement"); see also FOIA Update, Vol. VI, No. 4, at 3-4 ("OIP
Guidance: Protecting Settlement Negotiations") (establishing settlement-document
protection policy); M/A-COM, 656 F. Supp. at 692 (applying privilege under
Exemption 4); cf. Olin Corp. v. Ins. Co. of N. Am., 603 F. Supp. 445, 449-50 (S.D.N.Y.
1985) (affirming special master's determination that communications are protected
by "settlement privilege"). But see Tribune Co. v. Purcigliotti, No. 93-7222, 1996 WL
337277, at *2 (S.D.N.Y. June 19, 1996) (concluding that "particularized showing"
requirement "is neither binding on this Court nor has [it] been universally adopted in
this Circuit"). See generally Richard L. Crisona & Richard A. Schwartz, For Discovery
of Settlement Materials, Be Prepared to Demonstrate Relevance, 221 N.Y.L.J. 12
(1999) (criticizing "particularized showing" requirement, but noting its use by some
288. 462 U.S. 19, 26 (1983).
289. 465 U.S. 792, 799 (1984).
290. See FOIA Update, Vol. VI, No. 4, at 3-4 (describing judicial recognition of
Exemption 5 privilege for settlement-negotiation communications); see also Attorney
General Ashcroft's FOIA Memorandum, reprinted in FOIA Post (posted 10/15/01)
(emphasizing importance of Exemption 5 in ensuring that "lawyers' deliberations and
communications are kept private").
291. 316 F.2d at 338.
292. See FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01)
(citing FOIA Update, Vol. VI, No. 4, at 3 and describing the contours of the Klamath
test while emphasizing that the settlement-negotiation privilege "is strongly
compelled by the longstanding public policy favoring settlement of legal claims").
293. Accord Attorney General Ashcroft's FOIA Memorandum, reprinted in FOIA Post
(posted 10/15/01) (stating that the Department of Justice will defend agencies'
decisions to withhold information pursuant to FOIA exemptions "unless they lack a
sound legal basis or present an unwarranted risk of adverse impact on the ability of
other agencies to protect other important records").
294. See Martin v. Office of Special Counsel, 819 F.2d 1181, 1185 (D.C. Cir. 1987)
(stating that Exemption 5 "unequivocally" incorporates "all civil discovery rules into
FOIA"). But see also Burka v. HHS, 87 F.3d 508, 521 (D.C. Cir. 1996) (refusing to
recognize the "confidential research information" privilege under the FOIA because it
is not yet "established or well-settled . . . in the realm of civil discovery"); cf.
Melendez-Colon v. Dep't of the Navy, 56 F. Supp. 2d 142, 145 (D.P.R. 1999) (rejecting
the argument that the FOIA "creates a separate discovery or evidentiary privilege"
that would bar plaintiff from using a document at an evidentiary hearing in a
particular litigation case).
295. See Wash. Post Co. v. HHS, 603 F. Supp. 235, 238-39 (D.D.C. 1985) (applying
"confidential report" privilege under Exemption 4), rev'd on other grounds, 795 F.2d
205 (D.C. Cir. 1986).
296. See Julian, 486 U.S. at 9 (recognizing privilege, but finding it applicable to third-party requesters only); United States v. Kipta, No. 97-638-1, 2001 WL 477153, at *1
(N.D. Ill. May 3, 2001) (citing Julian for proposition that, at least in absence of
compelling justification, no third party "is to be given access to another person's
[presentence investigation] report").
297. See Wash. Post Co. v. United States Dep't of Justice, No. 84-3581, slip op. at 18-21 (D.D.C. Sept. 25, 1987) (magistrate's recommendation) (applying privilege under
Exemption 4), adopted (D.D.C. Dec. 15, 1987), rev'd & remanded on other grounds,
863 F.2d 96 (D.C. Cir. 1988). But see Sangre de Cristo Animal Protection, Inc. v. Dep't
of Energy, No. 96-1059, slip op. at 7-9 (D.N.M. Mar. 10, 1998) (declining to apply
privilege to records of animal research facility, in light of Tenth Circuit's "cautious
approach to expanding common law privileges"); cf. Tucker v. United States, 143 F.
Supp. 2d 619, 626 (S.D. W. Va. 2001) (declining, in a non-FOIA case, to apply the
privilege for medical peer review information, on the basis that "where Congress
had the opportunity to create a privilege pursuant to statute, yet failed to do so,
courts should be especially hesitant in recognizing a federal privilege").
298. See Nissei Sangyo Am., Ltd. v. IRS, No. 95-1019, 1998 U.S. Dist. LEXIS 2966, at
**2-3 (D.D.C. Jan. 28, 1998) (holding that because the Federal Rules of Civil Procedure
"established a separate exception to discovery for expert materials . . . Exemption 5
of the FOIA . . . incorporates" it).
299. See Sheldone v. Pa. Turnpike Comm'n, 104 F. Supp. 2d 511, 515 (W.D. Pa. 2000)
(recognizing, in non-FOIA case, privilege for communications arising from mediation
process); Folb v. Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164,
1180-81 (C.D. Cal. 1998) (holding, in non-FOIA case, that federal mediation privilege
protects all communications exchanged in course of formal mediation proceeding),
aff'd, 216 F.3d 1082 (9th Cir. 2000) (unpublished table decision); cf. 28 U.S.C. Â§ 652(d)
(2000) (requiring district courts to provide by local rule for confidentiality of
alternative dispute resolution proceedings); 5 U.S.C. Â§ 574(j) (2000) ("A dispute
resolution communication which is between a neutral and a party and which may
not be disclosed under this section shall also be exempt from disclosure under
300. See, e.g., Sneirson v. Chem. Bank, 108 F.R.D. 159, 162 (D. Del. 1985) (non-FOIA
case); Cincotta v. City of New York, No. 83-7506, 1984 WL 1210, at **1-2 (S.D.N.Y. Nov.
14, 1984) (non-FOIA case); cf. Brady-Lunny v. Massey, 185 F. Supp. 2d 928, 931 (C.D. Ill.
2002) (declining to order release under state law of any records that would be
protected under FOIA).
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