Attorney-Client Privilege


 * This article is part of a series on Exemptions
 * This article is part of a series on Exemption 5

Introduction
The attorney-client privilege is one of the privileges incorporated into Exemption 5. It generally protects confidential communications between agency lawyers and agencies regarding legal advice.

Applicability
To invoke the attorney-client privilege, the agency must demonstrate that the material it withheld both “involves ‘confidential communications between an attorney and his client’” and “relates to ‘a legal matter for which the client has sought professional advice.’” In the FOIA context, “an agency can be a ‘client’ and agency lawyers can function as ‘attorneys’ within the relationship contemplated by the privilege.”

Confidentiality
The attorney-client privilege only applies to records if they remain confidential; the agency bears the burden of showing that it “supplied information to its lawyers ‘with the expectation of secrecy and [the information] was not known by or disclosed to any third party.’” If an agency disseminates materials within the agency, it must be only to those “who are authorized to speak or act for the organization in relation to the subject matter of the communication,” that is, only those agency personnel who “need to know.”

For example, one court found the attorney-client privilege could not apply in a case where an agency made “no attempt whatsoever to protect [the] memoranda within the agency.” The agency “admitted that it does not know who has access to the documents” and copies of them were circulated to multiple agency offices. Further, the memoranda were “filed and indexed for future use,” “relied on as precedent,” and “used as training materials for new personnel” — all factors that suggested a lack of confidentiality.

Another court found confidentiality was not satisfied where the relevant information in the withheld record was submitted by third parties, rather than the "client" military agency, and thus did not "contain confidential information 'concerning the Agency.'" By contrast, "to the extent that any memorandum contains confidential information provided by and concerning the branch itself, such material would be covered by Exemption 5."

Advice
In order to fall within the attorney-client privilege, the record must also concern a request for, or the giving of, legal advice. For example, a court held that an agency failed to meet this element where it “[did] little more than identify [the] documents as attorney-client communications without establishing that they involve the provision of legal advice.”

Another court found no such “attorney-client communications” where agency auditors shared information about their audits of third parties with agency attorneys and, in response, the attorneys provided memoranda interpreting applicable regulations. The court reasoned the privilege did not apply because in addition to the fact that the auditors did not communicate “confidential private information concerning the agency,” the memoranda did not “counsel” the auditors in a manner “intended to assist the agency in protecting its interests.” Instead, the court found that the memoranda were merely “neutral, objective analyses of agency regulations” resembling “question and answer guidelines which might be found in an agency manual.”

Strategies for challenging attorney-client withholdings

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