FOIA Update: FOIA Counselor: Questions & Answers

FOIA Update
Vol. VI, No. 3
1985

May a requester involved in ongoing litigation use the FOIA as a collateral method of discovery?

Yes. Despite repeated admonitions from the courts that "[t]he primary purpose of the FOIA was not to benefit private litigants or to serve as a substitute for civil discovery," Baldrige v. Shapiro, 455 U.S. 345, 360 n.14 (1982), see also Miller v. Bell, 661 F. 2d 623, 626 (7th Cir. 1981), cert. denied, 456 U.S. 960 (1982), and that the FOIA was not "intended to serve as a substitute for criminal discovery," United States v. United States District Court, Central District of California, 717 F.2d 478, 481 (9th Cir. 1983), there simply exists no statutory or other legal prohibition against using the FOIA to supplement civil, criminal or administrative discovery in pending cases. See also FOIA Update, Dec. 1981, at 10.

Consequently, because requesters may seek to supplement or even to circumvent existing discovery mechanisms through the FOIA, agency FOIA personnel should always determine whether requested documents relate to pending litigation and, if so, carefully coordinate their disclosure actions with the pertinent litigation counsel. In this regard, special attention should be given to the possible applicability of FOIA Exemptions 5 and 7(A), in order to ensure the protection of information which would not be routinely discoverable in the ongoing litigation, see generally United States v. Weber Aircraft Corp., 104 S. Ct. 1488, 1492-93 (1984), and to avoid any harmful premature revelation of the government's case in court, see, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978).

Even though the FOIA may be used in conjunction with discovery, however, the courts have forbidden its use as a device to delay ongoing litigation. See Renegotiation Board v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 22-23 (1974); United States v. Murdock, 548 F.2d 599, 602 (5th Cir. 1977). It is also well established that a FOIA requester cannot rely upon his status as a private party litigant -- in either civil or criminal litigation -- to claim an entitlement to greater FOIA access than would be available to the average requester. See, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. at 242 n.23; NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10 (1975); United States v. United States District Court, Central District of California, 717 F.2d at 480.

Can a document which constitutes or incorporates an agency's final decision not to proceed any further with ongoing litigation be protected by the attorney work-product privilege under Exemption 5?

Yes. To be sure, the idea that a decisional document can be protected by Exemption 5 might at first seem strange. In the context of the deliberative process privilege, of course, there is no warrant for the withholding of such documents, because "the public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 152 (1975). However, the Supreme Court has stressed -- with reference to privileges other than the deliberative process privilege, such as the attorney work-product privilege -- that there is no "mutually exclusive relationship" between final decisional documents and documents generated earlier in the process. Federal Open Market Committee v. Merrill, 443 U.S. 340, 361 n.23 (1979). Indeed, as was elaborated upon in Iglesias v. CIA, 525 F. Supp. 547, 559 (D.D.C. 1981), "[i]t is settled that even if a document is a final opinion or is a recommendation which is eventually adopted as the basis for agency action, it retains its exempt status if it falls properly within the work-product privilege."

In its earliest pronouncement on the attorney work-product privilege, the Supreme Court enumerated several interests served by that privilege and paramount among them was the need to encourage attorneys to keep written records of their actions in connection with the litigation process. See Hickman v. Taylor, 329 U.S. 495, 511 (1947). See also FOIA Update, Fall 1984, at 6 (citing Fed. R. Civ. P. 26(b)(3)); FOIA Update, Summer 1983, at 6. The Court has more recently reiterated that the central purpose of this privilege is to protect the attorney's analyses, theories and mental impressions of a case. See Upjohn Co. v. United States, 449 U.S. 383, 398 (1981). See also FTC v. Grolier Inc., 462 U.S. 19, 31 (1983) (Brennan, J., concurring) (privilege needed to protect government settlement strategy). And as prominent commentators have observed in this regard, a document's status as attorney work-product should turn on whether it "can fairly be said to have been prepared or obtained because of the prospect of litigation." 8 C. Wright & A. Miller, Federal Practice and Procedure § 2024, at 198 (1970).

Examined in light of all of this, a document which sets forth an agency decision to decline to pursue further a particular litigation matter may well be regarded as constituting attorney work-product protectible under Exemption 5. However, mindful of the public's interest in the bases of government decisions, an agency should consider making discretionary disclosures of such documents wherever it is reasonably possible to do so without causing harm to its litigation process.

Are the protections afforded by Exemptions 6 and 7(C) limited to United States citizens?

No. An agency can invoke Exemption 6 or Exemption 7(C) to protect the personal privacy of any person, regardless of his or her citizenship status. Confusion sometimes arises on this point because the Privacy Act of 1974, 5 U.S.C. § 552a, expressly limits its rights to United States citizens and aliens lawfully admitted for permanent residence, under the Freedom of Information Act, however, foreign nationals have the same rights of access as do United States citizens. See FOIA Update, June 1982, at 5. Similarly, no distinction is made between foreign nationals and United States citizens when it comes to protecting personal privacy information in records requested under the FOIA. Accord Shaw v. Department of State, 559 F. Supp. 1053, 1067 (D.D.C. 1983) ("the Act makes no exception for the privacy interests of . . . aliens"). In fact, this principle appears to be so well accepted that it usually is not even mentioned. For example, in the recent case of Hemenway v. Hughes, 601 F. Supp. 1002, 1005-08 (D.D.C. 1985), which involved a FOIA request for personal information on foreign nationals, it was accepted without question that such persons have protectible privacy rights under the Freedom of Information Act.

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