Additional Exemption 5 Privileges


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

Introduction
In addition to the deliberative process, work product, and attorney-client privileges, there are a number of additional privileges that courts have found are encompassed within Exemption 5.

Confidential Commercial Information
The U.S. Supreme Court has held that Exemption 5 incorporates a “privilege for confidential commercial information, at least to the extent that this information is generated by the Government itself in the process leading up to awarding a contract.” Unlike the protection for information under Exemption 4, which applies only to information obtained from a source outside the federal government, this Exemption 5 privilege is “confined to information generated by the Federal Government itself.”

This privilege is based on what was formerly Federal Rule of Civil Procedure 26(c)(7), but is now Federal Rule of Civil Procedure 26(c)(1)(G), and allows a court to order protection for “trade secret[s] or other confidential research, development, or commercial information.”

If the information relates to a government contract that has been awarded or withdrawn, the privilege no longer applies, since the relevant harm is no longer present. Since the privilege is designed to avoid placing the government “at a competitive disadvantage” or endangering “the consummation of the contract,” the privilege expires on the occurrence of either event.

The U.S. Court of Appeals for the District of Columbia has held that since a party must show “good cause” in the civil discovery context, an agency seeking to apply this exemption “must identify an interest similar to one which courts have found sufficient to justify the ‘good cause’ standard in discovery proceedings.” For example, an agency unsuccessfully claimed this privilege for research data, arguing that to release it would harm the researchers’ prospects for publishing their findings in articles. However, the court could only find one case in which a federal court had granted a protective order for research data on the basis of a “researcher’s privilege,” while some other courts had either declined to recognize the privilege or held that it did not apply based on the facts of their case. Based on that precedent, the court found that the agency did not successfully refute the requester’s claim that the materials requested were “routinely available” in civil litigation.

Statements from Air Crash Investigations
The U.S. Supreme Court has incorporated into Exemption 5 a privilege for “[c]onfidential statements made to air crash safety investigators.” This privilege is commonly referred to as the “Machin” privilege, named after the case in which it was first recognized in the context of civil discovery.

At least one court has declined to extend this privilege to apply to investigations unrelated to air crashes. A U.S. District Court for the District of Columbia rejected an agency’s attempt to apply this privilege to interview transcripts from an investigation of a mine collapse, reasoning that it is not “a broad ‘accident investigation privilege.’”

Reporters of Expert Witnesses
One federal appeals court has recognized Exemption 5 protection for reports of expert witnesses, corresponding to Federal Rule of Civil Procedure 26(b)(4). This rule provides separate rules for “[d]iscovery of facts known and opinions held by experts” depending on whether or not they are expected to be called as a witness during trial.

For example, a court recognized a privilege for an outside expert’s appraisal report to an agency in a condemnation proceeding. The court reasoned that applying the privilege in that situation would “protect the government’s bargaining position with the landowner during the negotiation.”