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FOIA Update: FOIA Counselor: Protecting "Outside" Advice

FOIA Update
Vol. III, No. 3

FOIA Counselor

Protecting "Outside" Advice

In its day-to-day operations, the Government often relies on information and advice provided by "outside sources." In fact, such communications frequently are crucial to Government decisionmaking. Documents generated by "outside sources," if they qualify as "agency records," become subject to the disclosure provisions of the FOIA. See, e.g., Carson v. Department of Justice, 631 F.2d 1008, 1011 (D.C. Cir. 1980). In processing FOIA requests for such documents, the question often arises whether the FOIA's privileged communication exemption, Exemption 5, can be invoked.

In order for a document to be withheld under Exemption 5, it must be an "inter-agency or intra-agency" communication which would not routinely be available by law to a party in litigation with the agency. 5 U.S.C. § 552(b)(5). Hence, the focus on the judicial interpretation given the phrase "inter-agency or intra-agency" is critical in determining whether documents generated by entities outside the executive branch of the Government can be withheld.

The landmark case addressing this issue is Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), which involved "outside" consultants hired to provide an assessment of the nation's supersonic transport development program. The U.S. Court of Appeals for the District of Columbia Circuit held that the rationale of Exemption 5 would permit treating the consultants' report as an intra-agency memorandum, even though the consultants were plainly not government employees. The court of appeals observed: "The Government may have a special need for the opinions and recommendations of temporary consultants, and those individuals should be able to give their judgments freely without fear of publicity." 448 F.2d 1078 n.44.

Subsequent to Soucie, it has been held in numerous cases that "outside" documents may be considered to be inter- or intra-agency memoranda for Exemption 5 purposes. In reviewing these cases, it is convenient to group them according to similar factual backgrounds.

In the first group, the Government occupies the role of information buyer. See, e.g., Lead Industries Ass'n, Inc. v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979) (reports commissioned in course of preparing standards for occupational exposure to lead); Hoover v. Dept. of the Interior, 611 F. 2d 1132, 1138 (5th Cir. 1980) (real estate appraisal procured to aid in the purchase or condemnation of property); Government Land Bank v. General Services Administration, 671 F.2d 663, 665 (1st Cir. 1982) (independent real estate appraisal performed to assist in sale of surplus property).

A second group of cases is similar in that information and advice have been solicited by the Government from knowledgeable "outside sources," but are provided voluntarily and without compensation. These recommendations, therefore, usually emanate from less formal relationships between the Government and "outside parties." See, e.g., Wu v. National Endowment for Humanities, 460 F.2d 1030, 1032 (5th Cir. 1972) (evaluations of grant requests prepared by unpaid college professors); Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980) (responses to Justice Department questionnaires by Senators regarding recommendation of candidates for judgeships). In Ryan, the D.C. Circuit emphasized the importance of adopting a "common sense" interpretation of "intra-agency," noting that an overly-literal reading of this language would work to reduce the flow of necessary information and thereby impair the decisionmaking process. See 617 F.2d at 790.

A final category involves documents neither solicited nor paid for, but rather voluntarily provided to the Government by "outside parties" acting on their own initiative. See Information Acquisition Corp. v. Department of Justice, Civil Action No. 77-839 (D.D.C., May 23, 1979), which involved, inter alia, letters from private citizens and public officials commenting on the qualifications of William Rehnquist and others for nomination to the Supreme Court. In upholding nondisclosure, the court stated: "Public dissemination of these 44 documents could chill the extent to which citizens and officials participate in the appointment process."

In contrast, the U.S. Court of Appeals for the First Circuit recently announced a narrow interpretation of Exemption 5's "inter-agency or intra-agency" language. County of Madison v. Department of Justice, 641 F.2d 1036 (1st Cir. 1981), involved settlement correspondence between the Government and the Oneida Indian Nations, sought by parties to related litigation. The Government conceded that the correspondence was not literally inter-agency or intra-agency letters, but argued that it was deliberative in nature and that all future settlement negotiations would be significantly hindered by disclosure. Citing Ryan and Wu, the Government urged the court to apply a practical construction in order to protect these communications.

While apparently sympathetic to these policy arguments, the First Circuit nevertheless rejected the Government's contentions, stating that "[w]e perceive of no way, however, to describe the Oneidas' lawyers as 'intra-agency'--that is to say 'within the Department of Justice' -- that does not simply omit the term 'intra-agency' from the Act in pursuit of policy ends." 641 F.2d at 1040. The First Circuit did, however, distinguish the prior cases, stating that they dealt with documents solicited by the Government from outside sources. It explained: "In this case, by contrast, the Oneidas approached the government with their own interest in mind . . . . [E]xpanding exemption 5 to include self-seeking petitioners 'within' agencies would do more violence to statutory language than Congress' direction permits." Id.

The First Circuit's solicitation/nonsolicitation distinction, however, appears to be neither workable nor legally appropriate. The court of appeals itself admitted that the line between supplicants and consultants may not be clear in every case. See 641 F.2d at 1042. Moreover, such a test would exclude from Exemption 5 protection valuable unsolicited advice which is often crucial to the deliberative process. Whether initiated by the Government or by its adversaries, the settlement of claims serves to minimize or eliminate costly litigation and therefore is very much in the public interest. A more flexible reading of Exemption 5's "inter-agency or intra-agency" language would have better served the central purpose of this statutory exemption, that of protecting the deliberative processes of Government.

In sum, the courts have consistently afforded Exemption 5 protection to documents solicited from "outside sources" which are used in an agency's deliberative process. Regarding unsolicited documents, however, judicial precedent is not yet settled. Nevertheless, strong legal and policy considerations argue in favor of protecting all advice and recommendations used in agency decisionmaking.

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Updated August 13, 2014