As a result of the Supreme Court's recent decision in United States v. Weber Aircraft Corp., 104
S. Ct. 1488 (1984), it is now clear that the attorney work-product protection available under
Exemption 5 of the FOIA, 5 U.S.C.
The Supreme Court initially recognized this privilege in Hickman v. Taylor, 329 U.S. 495, 510-11 (1947), which declared that all work-product of an attorney enjoys at least qualified immunity from civil discovery, i.e., such material was held discoverable only upon a showing of necessity and justification. The Court further held that any portion of work-product material reflecting the mental impressions, opinions or strategy of an attorney is entitled to absolute immunity from discovery. See id. at 511.
Rule 26(b)(3) of the Federal Rules of Civil Procedure codifies this two-tiered privilege. It provides for the discovery of "documents and tangible things" prepared in anticipation of litigation "only upon a showing that the party seeking discovery has substantial need" of the materials to prepare his case and that he cannot obtain the materials elsewhere without "undue hardship;" it further provides that the "mental impressions, conclusions, opinions, or legal theories" of the attorney shall never be disclosed. Thus, all documents prepared in anticipation of litigation -- not merely those which contain legal strategy or opinions -- are protected by at least a qualified privilege under the civil discovery rules and need be produced in civil discovery only upon a substantial showing of need.
The FOIA, in stark contrast to Rule 26(b)(3), does not distinguish between requesters on the basis of their particular need for the records requested. Instead, the test under Exemption 5 is whether the documents would "routinely" or "normally" be disclosed in private litigation. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 & n.16 (1975). If a party must make a showing of substantial need to obtain a record in civil discovery, then the record is not "routinely" or "normally" available to parties in litigation, and it is therefore entirely protectible under Exemption 5. See, e.g., FTC v. Grolier Inc., 103 S. Ct. 2209, 2214 (1983). Thus, Exemption 5, as it incorporates Rule 26(b)(3), protects all documents prepared in anticipation of litigation, even those containing pure facts.
Notwithstanding the breadth of the work-product privilege recognized in civil discovery, the appellate courts construing it under Exemption 5 have held it to apply to only those portions of records which divulge an attorney's theory of a case or litigation strategy. These courts have erroneously applied the "factual-deliberative" distinction drawn in EPA v. Mink, 410 U.S. 73, 87-91 (1973), to all Exemption 5 privileges, rather than limiting it to the deliberative process privilege. See, e.g., Mervin v. FTC, 591 F.2d 821, 825-26 (D.C. Cir. 1978) (factual material protected only if disclosure would reveal attorney's "tactical and strategic thoughts"); Robbins Tire & Rubber Co. v. NLRB, 563 F.2d 724, 734-37 (5th Cir. 1977) ("Since the purpose of Exemption 5 was to protect agency deliberative processes, purely factual material such as verbatim witness statements must not fall within it, whether the agency urges upon us the executive or the work-product privilege."), rev'd on other grounds, 437 U.S. 214 (1978); Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1138 (4th Cir. 1977) ("we view the factual-deliberative distinction emphasized in Mink relevant to a consideration of the work-product privilege"); Title Guarantee Co. v. NLRB, 534 F.2d 484, 492-93 n.15 (2d Cir.) (records held not exempt because they "lack the deliberative quality associated with intra-agency memoranda and attorney's work product"), cert. denied, 429 U.S. 834 (1976). These decisions, without explanation, completely ignore the broad qualified privilege recognized under Rule 26(b)(3).
The Supreme Court's decision last year in FTC v. Grolier Inc., suggested that those courts' analysis was incorrect. In Grolier, the court noted that "[i]t makes little difference whether a privilege is absolute or qualified in determining how it translates into a discrete category of documents that Congress intended to exempt from disclosure under Exemption 5." 103 S. Ct. at 2214. Even more pointedly, Justice Brennan's concurrence observed that the "plain meaning of Exemption 5 is that the scope of the Exemption is coextensive with the scope of the discovery privileges it incorporates" and that "nothing in either FOIA or our decisions construing it authorizes us to define the coverage of the work-product doctrine under Exemption 5 differently from the definition of its coverage that would obtain under Rule 26(b)(3)." Id. at 2217.
Less than a year later, Justice Stevens, writing for the entire Court in Weber Aircraft, removed any doubt that the Mink "factual-deliberative" distinction is not applicable to all privileges incorporated into Exemption 5, explaining that "the relevant portion of Mink merely states that otherwise nonprivileged factual material cannot be withheld under Exemption 5 merely because it appears on the same document as privileged material." 104 S. Ct. at 1493 n.17 (emphasis added). Inasmuch as all attorney work-product is subject to a qualified privilege from civil discovery, it is entirely exempt from mandatory disclosure under Exemption 5.
In sum, agency FOIA personnel should remember, especially when processing requests for factual material prepared in anticipation of litigation, that the holdings of the courts of appeals cited above (as well as that portion of the guidance found in FOIA Update, Summer 1983, at p. 6, citing the Mervin decision) do not accurately reflect the breadth of attorney-work product protection now available under the Supreme Court's recent Exemption 5 decisions.
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