Vol. XV, No. 2
Applying the "Forseeable Harm" Standard Under Exemption Five
In her FOIA Memorandum of October 4, 1993, Attorney General Janet Reno established new standards of government openness that strongly guide agency decisionmaking under the FOIA toward the Act's goal of maximum responsible disclosure. The cornerstone of this new FOIA policy is the "foreseeable harm" standard, which the Attorney General's FOIA Memorandum sets forth as follows:
In short, it be shall the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption.
FOIA Update, Summer/Fall 1993, at 4. This standard applies together with its corollary emphasis on discretionary FOIA disclosure, based upon the touchstone principle that exempt information "ought not to be withheld from a FOIA requester unless it need be." Id.
By the same token, several of the Act's exemptions -- most notably, Exemption 1 (national security), Exemption 2 (in its "anti-circumvention" aspect, known as "high 2"), Exemption 7(A) (ongoing "law enforcement" investigations), and Exemption 7(E) (in its law enforcement guidelines aspect) -- have a firm "harm" requirement already built into them. This same element of harm is also implicit in the direct source-identification aspect of Exemption 7(D) (in its first clause), wherever the more stringent requirements for establishing source confidentiality are met in accordance with the Supreme Court's recent Landano decision. See FOIA Update, Summer/Fall 1993, at 10 (emphasizing strictness of new Exemption 7(D) standards set forth in United States Dep't of Justice v. Landano, 113 S. Ct. 2014 (1993)).
As is delineated in the Discretionary Disclosure and Waiver section of the "Justice Department Guide to the FOIA," the greatest increases in FOIA disclosure through application of the Attorney General's new FOIA standards should be found under the "institutional" FOIA exemptions such as Exemption 2 (in its entire "low 2" aspect pertaining to administrative information), Exemption 5 (in almost all of its incorporated discovery privileges), Exemption 7(D) (in its "source-provided information" aspect), Exemption 7(E) (in its "law enforcement techniques" aspect), and Exemption 8 (pertaining to bank examination reports and related records). See Freedom of Information Act Guide & Privacy Act Overview 280-86 (Sept. 1993). The wide range of agency information that is covered by the three major privileges of Exemption 5, in particular, warrants especially close attention in connection with the "foreseeable harm" standard.
Of the three major privileges incorporated into Exemption 5 -- the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege -- the traditional privilege protecting the processes of institutional deliberations is the one most commonly applicable to the records maintained at all federal agencies. This privilege broadly covers agency records that are "predecisional" to some agency decision and "deliberative" as well. See, e.g., Access Reports v. Department of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991). Its fundamental purpose is to encourage the "free and uninhibited exchange
Over the years, the courts have applied the deliberative process privilege under Exemption 5 to the entire gamut of records that are created during the processes of agency decisionmaking. As a general rule, they have found that almost any predecisional information can fall within the scope of the exemption if it is "'deliberative' in character." Mapother v. Department of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). This can include, for example, virtually all "draft" documents that are prepared by an agency, on the basis that the very process of evolving a "draft" into a "final" document qualifies for privilege protection. See, e.g., Dudman Communications Corp. v. Department of the Air Force, 815 F.2d 1565, 1568-69 (D.C. Cir. 1987); see also FOIA Update, Spring 1986, at 2. Even bare factual information, which ordinarily does not implicate the policies underlying the deliberative process privilege, has been held to fall within the privilege's broad sweep on the basis of "the context in which [it is] used." Wolfe v. HHS, 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc); see, e.g., Quarles v. Department of the Navy, 893 F.2d 390, 392-93 (D.C. Cir. 1990) (protecting "elastic facts"); see also FOIA Update, Summer 1986, at 6.
Moreover, the law is clear that, so long as the information in question was created prior to the particular decision that was involved, it can retain its privileged status (and remain technically exempt under the FOIA) long after the decisionmaking process has concluded -- potentially, forever. See, e.g., May v. Department of the Air Force, 777 F.2d 1012, 1014-15 (5th Cir. 1985); see also NLRB v. Sears, Roebuck & Co., 421 U.S. at 161 (identifying exception to privileged status only where information subsequently is "incorporated" into decisional document).
Thus, there is much room for agencies to apply the "foreseeable harm" standard within the realm of the deliberative process privilege under Exemption 5 and to disclose information that, in the words of the Attorney General's FOIA Memorandum, "might technically or arguably fall within" it. FOIA Update, Summer/Fall 1993, at 4. In doing so, they should be mindful that the "foreseeable harm" standard, by its very nature, requires FOIA officers to consider the applicability of an exemption on a case-by-case basis -- i.e., through "consideration of the reasonably expected consequences of disclosure in each particular case." Id. at 2.
In each case, a FOIA officer should now try to determine whether disclosure of the information in question would foreseeably harm the basic institutional interests that underlie the deliberative process privilege in the first place. In other words, he or she must consider whether it "would actually inhibit candor in the decision-making process" to disclose that particular information to the public at that particular time. Army Times Pub. Co. v. Department of the Air Force, 998 F.2d 1067, 1072 (D.C. Cir. 1993).
In making these harm determinations -- which can be difficult ones inasmuch as they must be reached individually and no longer can be made on any categorical basis -- agency FOIA officers can be guided by their analyses of a number of primary factors that logically come into play:
- The nature of the decision involved--Some agency decisions are highly sensitive and perhaps even controversial; most of them are far less so.
- The nature of the decisionmaking process--Some agency decisionmaking processes require total candor and confidentiality; many others are not nearly so dependent.
- The status of the decision--If the decision is not yet made, then there is a far greater likelihood of harm from disclosure; conversely, with decisions already made there is far less likelihood. See FOIA Update, Autumn 1979, at 4.
- The status of the personnel involved--Are the same agency employees, or other employees who are similarly situated, likely to be affected by the disclosure? See id.
- The potential for process impairment--How much room is there for actual diminishment of deliberative quality if the personnel involved do feel inhibited by potential disclosure? See, e.g., FOIA Update, Fall 1988, at 4 (observing that some presidential transition advice "simply would not be given -- or at least not so candidly -- if it were not protectible under the FOIA").
- The significance of any process impairment--In some cases, any anticipated "chilling effect" on the agency's decisionmaking process might be so minimal as to be practically negligible.
- The age of the information--While there is no universally applicable age-based litmus test, the sensitivity of all information fades with the passage of time. See FOIA Update, Summer/Fall 1993, at 2.
- The sensitivity of individual record portions--Apart from any other factor or consideration, FOIA officers ultimately must focus on "the individual sensitivity of each item of information." Id.
In applying the "foreseeable harm" standard to deliberative information, agencies also should be guided by the major Exemption 5 decision issued by the D.C. Circuit Court of Appeals in Petroleum Information Corp. v. United States Department of the Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992) [PIC], in which that appellate court placed new emphasis on whether the deliberative process in question is a "process by which policy is formulated." Its analysis suggests that the presence of "a policy judgment in the decisional process" is a strong factor readily compelling the applicability of Exemption 5 -- whereas with more "mundane" agency decisions, Exemption 5 should apply only where disclosure "genuinely could be thought likely to diminish the candor of agency deliberations in the future." Id. at 1436 & n.8. Accord Ethyl Corp. v. EPA, 25 F.3d 1241, 1248-49 (4th Cir. 1994) (following PIC); Army Times Pub. Co. v. Department of the Air Force, 998 F.2d at 1070 (applying similar harm standard); see also Freedom of Information Act Guide & Privacy Act Overview 149-50 & n.123 (Sept. 1993) (highlighting PIC as a "focal point for the exercise of sound administrative discretion" in applying Exemption 5).
At bottom, the decision whether to invoke the deliberative process privilege under the circumstances of each particular case should be made with a full appreciation of those circumstances and of the importance of withholding only as much information as they require. To paraphrase both the Supreme Court and Congress in this context: "Exemption 5 is to be [applied] 'as narrowly as consistent with efficient Government operation.'" EPA v. Mink, 410 U.S. 73, 87 (1973) (quoting S. Rep. No. 813, 89th Cong., 1st Sess. 9 (1965)).
Similarly, the application of the "foreseeable harm" standard to records falling within Exemption 5's attorney work-product privilege holds enormous potential for increased agency disclosure. This is due in large part to the fact that the privilege, as it operates under the FOIA, is extremely broad in multiple respects.
The attorney work-product privilege is designed to shield the materials prepared by an attorney or under an attorney's direction in connection with civil or criminal litigation. See FOIA Update, Summer 1983, at 6. It is based upon a Federal Rule of Civil Procedure that establishes a "two-tiered" structure of protection: It provides that an attorney's "mental impressions, conclusions, opinions or legal theories" are privileged "absolutely" and never have to be disclosed in civil discovery, but it affords everything else prepared in anticipation of litigation only a "qualified" privilege that can be overcome with a showing of need. FOIA Update, Fall 1984, at 6 (quoting Fed. R. Civ. P. 26(b)(3)).
Under the FOIA, however, any such showing of need is irrelevant; all that matters under Exemption 5, the Supreme Court repeatedly has held, is whether the information in question is privileged "routinely." United States v. Weber Aircraft Corp., 465 U.S. 792, 799 (1985); FTC v. Grolier Inc., 462 U.S. 19, 26 (1983). Consequently, the substantive scope of the attorney work-product privilege for purposes of Exemption 5 includes that entire lesser work-product tier; it is so broad as to cover literally every bit of information that is prepared in connection with a case. See FOIA Update, Fall 1984, at 6; see also FOIA Update, Summer 1987, at 5 (covering "entireties of witness statements").
What's more, the Supreme Court's Grolier decision expanded the Exemption 5 reach of this privilege in its temporal dimension as well. Prior to Grolier, there was a split of authority among the courts as to the work-product privilege's "temporal scope"; some courts held it to be limited in time, applicable only so long as necessary in relation to pending litigation, while others viewed it as applicable even beyond the particular case at hand. 462 U.S. at 25. In Grolier, the Supreme Court decided, in effect, that the privilege can apply under Exemption 5 "in perpetuity," without any temporal limitation whatsoever. See FOIA Update, Summer 1983, at 1-2.
This means, in sum, that the attorney work-product privilege technically applies to a very wide and very deep range of litigation-related records that may be requested under the FOIA. A proper application of Attorney General Reno's "foreseeable harm" standard should proceed with full appreciation of the privilege's exceptional breadth in this regard, and of the corresponding FOIA-policy obligation to eschew it to the maximum extent possible. See, e.g., FOIA Update, Summer 1985, at 5 (encouraging discretionary disclosure of certain work-product records absent any harm).
First and foremost, where the related litigation has ended, an agency should no longer assert the privilege under the FOIA unless it determines that because of some special continuing sensitivity, disclosure would "cause real harm to the interests of the attorney and his client even after the controversy in the prior litigation is resolved." FTC v. Grolier Inc., 462 U.S. at 28, 30 (Brennan, J., concurring). While there can be no hard and fast rule on such matters, it is not hard to imagine even any such lingering sensitivity beginning to fade after a period of just a few months or years beyond a case's conclusion. See FOIA Update, Summer/Fall 1993, at 2.
Furthermore, regardless of whether the passage of time alone is sufficient to allow disclosure of an entire work-product file, the "foreseeable harm" requirement should yield disclosure of the bulk of material found within the broader, fact-laden tier of the privilege in any event. This is information that is, after all, by definition subject to discovery disclosure based upon mere showings of litigation relevance and need. See Fed. R. Civ. P. 26(b)(3). There will be little need for an agency to assert the work-product privilege for such information in many instances, even during the pendency of litigation, if it has no inherent sensitivity to any current or prospective litigation process. Compare FTC v. Grolier Inc., 462 at 30-31 (recounting circumstances in "recurring" litigation that can amount to such sensitivity).
And even if there is such sensitivity to some portion of a litigation file, agencies should take pains to segregate that information from all nonsensitive information in order to achieve a maximum disclosure result. See FOIA Update, Summer/Fall 1993, at 11-12 ("OIP Guidance: The 'Reasonable Segregation' Obligation") (advising agencies to undertake processes of "more particularized record review" in implementing both the "foreseeable harm" standard and also their related statutory obligation to segregate all nonexempt record portions for FOIA disclosure); see also id. at 4 (Attorney General FOIA Memorandum tying both obligations to new emphasis on discretionary disclosure).
In sum, the nature of the attorney work-product privilege is such that an agency should always bear in mind the following primary elements when applying the "foreseeable harm" standard to it:
- The time element--Is the case still pending, or is it sufficiently past that the sensitivity of even the core information covered by the privilege's first tier has faded?
- The litigation connection element--If the case itself is at an end, does the information truly remain sensitive due to its connection to similar or recurring litigation?
- The substantive scope element--Critical distinctions should be drawn between the "attorney thought process" information within the privilege's first tier, and the information that could include even "pure facts" that are covered by its other tier. FOIA Update, Fall 1984, at 6.
- The inherent sensitivity element--Regardless of any other consideration, some portions of litigation files simply have no inherent sensitivity in any event.
When any agency receives a FOIA request for one of its litigation files, it should employ considerations such as these in determining whether there truly is any "foreseeable harm" from disclosure of the vast scope of information ordinarily covered by the work-product privilege. If not, the privilege should be waived. At the Department of Justice's own Executive Office for U.S. Attorneys, for example, the application of the Attorney General's "foreseeable harm" standard leads to disclosure of considerably more information than was disclosed from litigation files in the past.
There is one point of caution, though: In applying these work-product considerations toward that end, agencies must be sure that before making a discretionary disclosure of any litigation file maintained by them under any individual's name, they comply with the technical requirements of the Privacy Act of 1974, 5 U.S.C.
Lastly, agencies also should be alert to the potential for making discretionary disclosures through application of the "foreseeable harm" standard even to information that falls within the traditional attorney-client privilege. This privilege is designed to protect all "confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice." Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977). At bottom, it shields the information provided by the client to the attorney, and anything generated by the attorney that in turn is reflective of that, in order for the attorney to be "fully informed of all the facts of the matter" involved. Upjohn Co. v. United States, 449 U.S. 383, 390-91 (1981) (citing Hickman v. Taylor, 329 U.S. 495, 511 (1947)). Simply put, the privilege belongs to the client, not the attorney.
The attorney-client privilege applies within federal agencies in much the same way as it does in any other legal setting, except that the "client" is the agency itself. See FOIA Update, Spring 1985, at 3-4 ("OIP Guidance: The Attorney-Client Privilege"). With the exception of the narrow circumstance in which a government attorney represents an agency employee who is sued individually in a federal case, federal government attorneys represent their own agencies -- or sometimes other federal agencies -- when acting in a legal capacity. This means that, almost invariably, the privilege that attaches to an attorney's legal work will be one that his or her agency (perhaps in consultation with another agency) is free to invoke or not to invoke, as a matter of its administrative discretion. In other words, it is the agency's own privilege to waive if it chooses to do so.
As a matter of policy in implementation of the Attorney General's FOIA Memorandum, as bolstered by President Clinton's call upon all agencies to heed "both the letter and spirit of the Act," FOIA Update, Summer/Fall 1993, at 3, all agencies should consider making liberal waivers of the attorney-client privilege under the FOIA. Often, there is a good deal of overlap between this privilege and the attorney work-product privilege already discussed. See FOIA Update, Spring 1985, at 3. It will do little good for an agency to pursue discretionary waiver of its attorney work-product privilege, through rigorous application of the "foreseeable harm" elements outlined above, if it does not waive any applicable attorney-client privilege in like fashion.
Similarly, all agency FOIA officers should be mindful that there are strong connections between the attorney-client privilege and the deliberative process privilege as they apply to federal agencies. See id. (pointing to "significant overlap" between the two privileges). When a government attorney is asked to give legal advice, that advice nearly always is sought in connection with an agency action that is subject to legal review or some other active decisionmaking process. Therefore, the very same strong policy considerations that can compel discretionary disclosure in relation to the deliberative process privilege, discussed above, should compel likewise insofar as this privilege overlaps it as well.
In sum, all federal agencies should strive to implement President Clinton's and Attorney General Reno's "strong new spirit of openness in government," which is "essential to government accountability," FOIA Update, Summer/Fall 1993, at 1, through a conscientious application of the "foreseeable harm" standard in their FOIA-exemption decisionmaking, especially under Exemption 5. That exemption, more than any other of the Act, is at the very core of federal government operations; no information covered by its broad privileges should be withheld from public scrutiny unless there is an identified need for doing so. As Congress has stated in a comparable context, it should be "the policy of the United States that the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government." 5 U.S.C.
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