Exemption 5


 * This article is part of a series on Exemptions

Introduction
Exemption 5 of the federal Freedom of Information Act covers multiple privileges, including those that protect an attorney’s work product, attorney-client communications, and the “deliberative process.” It exempts from mandatory disclosure “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.”

Text of Exemption 5
See also Text of the FOIA

(b) This section does not apply to matters that are—[...]
 * (5) inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;

Scope of Exemption 5
The U.S. Supreme Court has ruled that to qualify for Exemption 5 protections, a document must satisfy two conditions. First, “its source must be a Government agency.” Second, the document “must fall within the ambit of a privilege against discovery” recognized under Exemption 5.

Threshold Requirement: "Inter-Agency or Intra-Agency Memorandums or Letters"
As an initial matter, Exemption 5 only applies to records that are “inter-agency or intra-agency memorandums or letters.” The FOIA defines “agency” as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.”

“Intra-agency” communications “are those that remain inside a single agency,” while “inter-agency” communications “go from one governmental agency to another.”

A record exchanged between an agency and a private third party is generally neither “inter-agency” nor “intra-agency.” For example, a court held that communications between the U.S. Army and a private company awarded a government contract were not exchanged inter- or intra-agency. Additionally, on the basis that “Congress is simply not an agency,” the U.S. Court of Appeals for the District of Columbia Circuit has held that communications between an agency and Congress do not qualify as “inter-agency” for Exemption 5 purposes. On that basis, the court held that a letter sent by the Department of Justice to the House Ethics Committee was not an “inter-agency” exchange.

"Consultant Corollary" doctrine
In some limited circumstances, a non-agency party may act as a consultant to the government, and in such cases, their communications may qualify as an “intra-agency” exchange for Exemption 5 purposes under the decisional law of some, but not all, federal courts of appeal. This extension of the “intra-agency” relationship to cover such agency consultants is generally referred to as the “consultant corollary.”

The 6th Circuit Court of Appeals has ruled that communications sent from an agency of the United States government to a foreign government do not satisfy Exemption 5's threshold test. The court reasoned that given the definition of "agency" in 5 U.S.C. § 552(f)(1), "to be inter-agency memorandums or letters, the [communications] must have been sent from an authority of the Government of the United States to an authority of the Government of the United States. The court specifically rejected the application of the common interest and "consultant corollary" doctrines to such communications.

The 9th Circuit Court of Appeals, in a 2-1 opinion (en banc rehearing granted), held that the consultant corollary is "contrary to Exemption 5’s text and FOIA’s purpose to require broad disclosure" and declined to adopt it, ruling that agency records in the possession of the agency would need to be disclosed even though they were prepared by an outside consultant.

While Exemption 5 itself does not define the scope of “inter-agency and intra-agency,” the U.S. Supreme Court has noted that several federal appeals courts have relied on the consultant corollary in allowing documents prepared for government agencies by outside parties to qualify as “intra-agency” memorandum. As the Court explained, the courts’ rationale in these cases is that “the records submitted by outside consultants played essentially the same part in an agency's process of deliberation as documents prepared by agency personnel might have done.”

In recognizing that consultants’ communications with an agency may sometimes constitute an “intra-agency” exchange for Exemption 5 purposes, the Court highlighted several factors as relevant in this inquiry.

First, as the U.S. Supreme Court explained, the consultant must “not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it.” That is, the consultant’s “only obligations” should be “to truth and its sense of what good judgment calls for,” as “in those respects the consultant functions just as an employee would be expected to do.” For that reason, where non-agency parties “communicate with the [agency] with their own. . . interests in mind,” the consultant corollary likely does not exist.”

Second, a non-agency party does not act as a consultant to the agency in situations where it “self-advocates at the expense of others seeking benefits inadequate to satisfy everyone.” As the Court emphasized, a “dispositive” question is whether the purpose of the third party’s communications is to obtain an agency decision to support a claim “that is necessarily adverse to the interests of competitors.”

For example, the U.S. Supreme Court ruled that memoranda exchanged between certain Native American tribes and the Bureau of Indian Affairs were not “intra-agency” communications where the tribes sought water rights from a federal program that allocated a limited water supply among competing users. The Bureau, which administers water rights that it holds in trust for Native American tribes, exchanged memoranda with the tribes in determining the scope of the claims for water rights it would submit on their behalf in allocation proceedings. The Court found that since the tribes urged the agency to take “a position necessarily adverse to the other claimants” for water rights, the tribes acted in their own interests, rather than as a consultant to the agency. The Court found evidence of this in the nature of the memoranda submitted by the tribes, which included a position paper on water law theories and a discussion of their views on water rights. Further differentiating the tribes’ interests from the Bureau’s, the agency’s duty to represent the tribes’ interests “coexist[ed] with the duty to protect other federal interests,” such as the proper operation of the government’s water allocation project.

Similarly, a court held exchanges between the U.S. Department of Education and the District of Columbia Mayor’s Office related to a federally funded school voucher program in the District were not “intra-agency” documents because the mayor’s office advocated on behalf of the interests of its own constituents. The court also found a lack of a consultant relationship because the agency and the mayor’s office “share[d] responsibility for the D.C. voucher program such that information [was] not being conveyed to DOED to unilaterally make ultimate decisions based on the D.C. Mayor's Office's advice.” The court noted that its holding was consistent with the fact that there was “no precedent for withholding documents under Exemption 5 where a federal agency and a non-federal entity share ultimate decision-making authority with respect to a co-regulatory project.

In contrast, such an “intra-agency” consultant relationship was found where the government sought an outside expert’s opinion in valuing property for possible purchase or condemnation. The court reasoned that the government had a “need for special expertise,” as it was constitutionally required to pay “just compensation” in obtaining land for projects, and the parcel of land at issue had “unique attributes.” In such a situation, the court found that the agency required “the objective opinion of outside experts rather than rely[ing] solely on the opinions of government appraisers.”

In addition to those considerations, courts have also required the memorandum or letter to have actually been “solicited by the agency” for the consultant corollary to apply. For example, a court held the Federal Reserve Bank of New York (FRBNY) acted as an “intra-agency” consultant when it advised the Board of Governors of the Federal Reserve System (Board) on whether to extend a loan to a holding company that was potentially facing bankruptcy, as the FRBNY and the Board shared a common interest and the Board solicited the record. Looking to the considerations for the consultant corollary established by the U.S. Supreme Court, the court noted that the Board and the FRBNY shared a common goal: to determine whether making the loan would “promote[] the maintenance of a sound and orderly financial system.” While each body was required to make independent determinations on whether to approve the loan at issue, the court found this did not mean their “interests diverged,” as both are tasked by federal regulations and statutes to work toward maintaining a sound financial system. Next, the court found that the Board “solicited” the document from the FRBNY, rather than the FRBNY “simply provid[ing] the information, unprompted.” As the court noted, the Board requested the information about FRBNY-monitored institutions in order to assess their financial condition and the possible effect of the loan on their finances, and the information contributed to the Board’s deliberative process in determining the appropriate action to take.

In Judicial Watch, Inc. v. Dep’t of State, the court ruled that communications prepared by non-State employees during Clinton’s confirmation process constituted intra-agency documents, and that State could properly withhold them under Exemption 5.

Privileges Incorporated Into Exemption 5
Exemption 5 protects documents from mandatory disclosure that fall within recognized “privilege[s] against discovery under judicial standards that would govern litigation against the agency that holds it.” What this essentially means is that if the record would not routinely have to be produced to the opposing side in the context of a lawsuit, then it can be withheld under Exemption 5.

Unlike court rules in civil litigation, a requester cannot overcome a privilege in the FOIA context by showing that they have a compelling need for the information. This is because while certain privileges are “absolute” in civil litigation, others are “qualified,” meaning that litigants can overcome the privilege by showing they have a particular need for the records.

However, in the FOIA context, the U.S. Supreme Court has held that the standard for release under Exemption 5 is whether the records would “normally” or “routinely” be released in civil discovery. For that reason, courts have held that documents do not meet this standard where a litigant would have to make a showing of need to obtain them in civil litigation. The rationale for this is to prevent litigants from trying to use FOIA to obtain privileged material they could not be able to obtain in civil discovery on the chance that a FOIA records processor would release information a court was unwilling to order disclosed.

The U.S. Supreme Court has so far recognized five privileges that are incorporated into Exemption 5. They include:


 * 1) Deliberative Process Privilege
 * 2) Attorney Work Product Privilege
 * 3) Attorney-Client Privilege
 * 4) Confidential commercial communications and
 * 5) Statements of fact made to the government during an air crash investigation.

Additionally, one federal appeals court has recognized Exemption 5 protection for reports of expert witnesses.

Visit the pages referenced above for a more detailed description of the scope and applicability of these privileges.

Waiver
“Waiver can occur when communications are disclosed to private individuals or nonfederal agencies.” For example, one court held that an agency waived any privilege for a model it developed related to groundwater contamination by sharing the results generated by the model with its regional board, which then shared them with the requester’s attorneys.

In determining that the release of the results also waived the privilege with respect to the document containing the model itself, the court looked to the circumstances of the prior release. It noted that the agency had “purposely shared the results with the Board,” had not required the Board employees in attendance to sign a confidentiality agreement, and that “disclosure of the model itself would not reveal [the agency’s] litigation strategies or trial preparations” — all factors showing that withholding the model was “neither necessary to maintain a healthy adversary system nor consistent with the purpose of work product protection.”

However, depending on the circumstances, an agency’s limited or involuntary prior release of a document may not constitute a waiver. For example, a court held that reports submitted to Congress by a federal committee could remain exempt where the committee was required to do so by law, and submission to Congress was an exception to the law’s requirement that the information “shall not be disclosed to any person.” Likewise, where an agency disclosed information pursuant to a congressional subpoena and a court order, a court held that such an “involuntary” disclosure did not waive the exemption.