Freedom of Information Act Guide, May 2004

Exemption 5 of the FOIA protects "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." ⁽¹⁾ The courts have construed this somewhat opaque language, with its sometimes confusing threshold requirement, ⁽²⁾ to "exempt those documents, and only those documents that are normally privileged in the civil discovery context." ⁽³⁾

Although originally it was "not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery," ⁽⁴⁾ the Supreme Court subsequently made it clear that the coverage of Exemption 5 is quite broad, encompassing both statutory privileges and those commonly recognized by case law, and that it is not limited to those privileges explicitly mentioned in its legislative history. ⁽⁵⁾ Accordingly, the Court of Appeals for the District of Columbia Circuit has stated that the statutory language "unequivocally" incorporates "all civil discovery rules into FOIA [Exemption 5]." ⁽⁶⁾ However, this incorporation of discovery privileges requires that a privilege be applied in the FOIA context exactly as it exists in the discovery context. ⁽⁷⁾ Thus, the precise contours of a privilege, with regard to applicable parties or the types of information that are protectible, are also incorporated into the FOIA. ⁽⁸⁾

Additionally, it is not the "hypothetical litigation" between particular parties (in which relevance or need are appropriate factors) that governs Exemption 5's applicability; ⁽⁹⁾ rather, it is the circumstances in civil litigation in which memoranda would "routinely be disclosed." ⁽¹⁰⁾ Therefore, whether the privilege invoked is absolute or qualified is of no significance. ⁽¹¹⁾ Accordingly, no requester is entitled to greater rights of access under Exemption 5 by virtue of whatever special interests might influence the outcome of actual civil discovery to which he is a party. ⁽¹²⁾ Indeed, such an approach, combined with a careful application of Exemption 5's threshold language, is the only means by which the Supreme Court's firm admonition against use of the FOIA to circumvent discovery privileges can be given full effect. ⁽¹³⁾ Nevertheless, the fact that information is not generally discoverable does not necessarily mean that it is not discoverable by a specific class of parties in civil litigation, so just as the FOIA's privacy exemptions are not used against a first-party requester, ⁽¹⁴⁾ a privilege that is designed to protect a certain class of persons cannot be invoked against those persons as FOIA requesters. ⁽¹⁵⁾

The three primary, most frequently invoked privileges that have been held to be incorporated into Exemption 5 are the deliberative process privilege (referred to by some courts as "executive privilege"), the attorney work-product privilege, and the attorney-client privilege. ⁽¹⁶⁾ First, however, Exemption 5's threshold requirement must be considered.

The "Inter-Agency or Intra-Agency" Threshold Requirement

The threshold issue under Exemption 5 is whether a record is of the type intended to be covered by the phrase "inter-agency or intra-agency memorandums" -- a phrase which, at first glance, would seem to encompass only documents generated by an agency and not documents circulated beyond the executive branch. ⁽¹⁷⁾ Three years ago, the Supreme Court shed light on this issue when it ruled on the contours of Exemption 5's "inter-agency or intra-agency" threshold requirement for the first time in Department of the Interior v. Klamath Water Users Protective Ass'n. ⁽¹⁸⁾ In a unanimous decision, the Court ruled that the threshold of Exemption 5 did not encompass communications between the Department of the Interior and several Indian tribes which, in making their views known to the Department on certain matters of administrative decisionmaking, not only had "their own, albeit entirely legitimate, interests in mind," ⁽¹⁹⁾ but also were "seeking a Government benefit at the expense of other applicants." ⁽²⁰⁾ Thus, records submitted to the agency by the Tribes, as "outside consultants," did not qualify for attorney work-product and deliberative process privilege protection in the case. ⁽²¹⁾

Significantly, the Supreme Court's holding in Klamath rested on distinctly narrower grounds than did the appellate court's ruling below. ⁽²²⁾ Before the case reached the Supreme Court, the Court of Appeals for the Ninth Circuit had held that Exemption 5's threshold could not accommodate communications between an agency and any "outside consultant" who has a "direct interest" in the subject of its "consultation" with the agency. ⁽²³⁾ But this simplistic "direct interest" test did not survive the Supreme Court's review. ⁽²⁴⁾

Rather, while acknowledging that "consultants whose communications have typically been held exempt have not been communicating with the Government in their own interest" or on behalf of anyone else "whose interests might be affected by the Government action addressed by the consultant," ⁽²⁵⁾ the Supreme Court went one step further than the Ninth Circuit in its analysis. "While this fact alone distinguishes tribal communications from the consultants' examples recognized by several Courts of Appeals," the Court reasoned, "the distinction here is even sharper, in that the Tribes are self-advocates at the expense of others seeking benefits inadequate to satisfy everyone." ⁽²⁶⁾ Indeed, by limiting its holding to only those communications in which the "outside consultant" has an interest in the outcome of the decisionmaking process and in which other existing parties have competing interests in "benefits inadequate to satisfy everyone," the Court pointedly refrained from adopting a rule any broader than the facts of the case required. ⁽²⁷⁾ Rather, it limited its holding to situations involving the advocacy of competing external interests by those who might otherwise qualify as consultants for purposes of satisfying Exemption 5's threshold. ⁽²⁸⁾

During the years leading up to Klamath, in recognition of the necessities and practicalities of agency functioning, many courts had construed the scope of Exemption 5 to include various types of communications originating outside of agencies. ⁽²⁹⁾ This pragmatic approach to the "inter-agency or intra-agency" threshold requirement, which in light of Klamath may be characterized as an "outside consultant" test, in the past often was characterized as a "functional test" for assessing the availability of Exemption 5 protection. ⁽³⁰⁾ In Klamath, the Supreme Court assumed for purposes of its decision, and thereby implicitly strengthened, the pragmatic "outside consultant" approach to Exemption 5's threshold language. ⁽³¹⁾

Regarding records generated outside an agency but created through agency initiative, whether purchased or provided voluntarily without compensation, the Court of Appeals for the District of Columbia Circuit observed in Ryan v. Department of Justice ⁽³²⁾ that "Congress apparently did not intend 'inter-agency or intra-agency' to be rigidly exclusive terms, but rather to include [nearly any record] that is part of the deliberative process." ⁽³³⁾ Included in this category are recommendations from Members of Congress, ⁽³⁴⁾ recommendations from an office of an agency to a commission established to assist another agency's policymaking, ⁽³⁵⁾ consultations with a state agency concerning a joint state-federal regulatory project, ⁽³⁶⁾ and documents provided by an agency's contractor employees. ⁽³⁷⁾  Likewise, the D.C. Circuit has held that Exemption 5 applies to documents originating with a court. ⁽³⁸⁾ Under this commonsense approach, documents generated by consultants outside of an agency were typically found to qualify for Exemption 5 protection because agencies, in the exercise of their primary functions, commonly have "a special need for the opinions and recommendations of temporary consultants." ⁽³⁹⁾ Indeed, it has long been recognized under the FOIA that such advice can "play[] an integral function in the government's decision[making]." ⁽⁴⁰⁾

While agencies often are the recipients of expert advice, they also occasionally provide it. In Dow Jones & Co. v. Department of Justice, the D.C. Circuit held that documents conveying advice from an agency to Congress for purposes of congressional decisionmaking are not "inter-agency" records under Exemption 5 for the simple reason that Congress is not an "agency" under the FOIA -- though the court also held that agencies may protect communications outside of an agency if they are "part and parcel of the agency's deliberative process." ⁽⁴¹⁾

Just this past year, the District Court for the District of Columbia tried to apply similar logic to a presidential commission, holding that the presidentially created National Energy Policy Development Group is not an "agency" and that therefore documents submitted to it by government agencies could not be said to be contributing to an agency's decisionmaking process and cannot be withheld under Exemption 5. ⁽⁴²⁾ This decision, however, ignored an essential preliminary holding of a thirty-year-old Supreme Court decision, EPA v. Mink, in which the Court declared that it was "beyond question that [agency documents prepared for a presidentially created committee organized to advise him on matters involving underground nuclear testing] are 'inter-agency or intra-agency' memoranda or 'letters' that were used in the decisionmaking processes of the Executive Branch." ⁽⁴³⁾

Just as the Supreme Court long ago recognized that agency recommendations to the President must qualify as inter-agency communications for purposes of Exemption 5, the D.C. Circuit similarly so held in the very recently decided case of Judicial Watch, Inc. v. Department of Justice, in which it ruled that certain Department of Justice communications to the President or the Office of the President regarding pardons were properly protected under the presidential communications privilege. ⁽⁴⁴⁾ Significantly, the necessary implication of the D.C. Circuits ruling was that these records were protected under Exemption 5 despite the fact that neither the President nor the Office of the President is an "agency" subject to the FOIA. ⁽⁴⁵⁾ In short, the wooden test of Dow Jones must bow when it comes to agency communications with the President. ⁽⁴⁶⁾

Fifteen years ago, in Formaldehyde Institute v. HHS, ⁽⁴⁷⁾ the D.C. Circuit found that Exemption 5's "inter-agency or intra-agency" threshold requirement was satisfied even where no "formal relationship" existed between HHS and an outside scientific journal engaged in the process of reviewing an article that was submitted by an HHS scientist for possible publication. ⁽⁴⁸⁾ The D.C. Circuit stated that the deciding factor was the "role" that the evaluative comments from the journal's reviewers played in the process of agency deliberations -- that is, they were regularly relied upon by agency authors and supervisors in making the agency's decisions. ⁽⁴⁹⁾ More recently, in Public Citizen, Inc. v. United States Department of Justice, ⁽⁵⁰⁾ the D.C. Circuit protected the consultative relationship between former Presidents and agencies under the Presidential Records Act, ⁽⁵¹⁾ going so far as to conclude that "[c]onsultations under the Presidential Records Act are precisely the type that Exemption 5 was designed to protect." ⁽⁵²⁾ It should be noted, moreover, that the Supreme Court in Klamath explicitly left open the continued viability of the D.C. Circuit's precedents in both Public Citizen and Ryan, noting that these two decisions "arguably extend" beyond the "typical examples" of cases in which communications of outside consultants have been held to satisfy "inter-agency or intra-agency" threshold. ⁽⁵³⁾ It remains to be seen how such pre-Klamath precedents will develop further under Klamath in future cases involving the contours of Exemption 5's threshold. ⁽⁵⁴⁾

In two cases decided subsequent to Klamath, though, federal district courts have misread the threshold test as laid out by the Supreme Court. In Merit Energy Co. v. United States Department of the Interior, ⁽⁵⁵⁾ the District Court for the District of Colorado held that communications between a Native American tribe and the agency did not meet the "inter or intra-agency" test, solely on the basis that the tribe was advocating its own interests. ⁽⁵⁶⁾ In so ruling, the court failed to address the essential second part of the Klamath test -- namely, whether the tribe was advocating its interests at the expense of other parties. ⁽⁵⁷⁾

Similarly, in Center for International Environmental Law v. Office of the United States Trade Representative, ⁽⁵⁸⁾ the District Court for the District of Columbia refused to allow the United States Trade Representative to protect documents exchanged by his office with the Government of Chile in the course of bilateral trade negotiations between the United States and the Chilean government. ⁽⁵⁹⁾ In a flawed analysis, this court first properly discussed the Supreme Court's holding that possession of a distinct interest by an outside consultant is not, by itself, enough to disqualify that party from meeting Exemption 5's threshold, ⁽⁶⁰⁾ even quoting the Court's opinion to the effect that '"the dispositive point is that the apparent object of the Tribe's communications is a decision by the agency of the Government to support a claim by the Tribe that is necessarily adverse to the interests of competitors.'" ⁽⁶¹⁾ In spite of this, however, the district court then abruptly proceeded to inexplicably conclude that the "critical factor" in the case before it was the "degree of self-interest" pursued by the outside party, "as compared to its interest in providing neutral advice" ⁽⁶²⁾ -- a standard created entirely out of whole cloth that completely ignores the critical second component of the Supreme Court's Klamath test, i.e., the question of whether Chile's advocacy came at the expense of another party. Indeed, as there is absolutely nothing in Klamath (or elsewhere) that calls for the use of such a balancing test in such cases, this poorly reasoned decision should not be followed. ⁽⁶³⁾

Deliberative Process Privilege

The most commonly invoked privilege incorporated within Exemption 5 is the deliberative process privilege, the general purpose of which is to "prevent injury to the quality of agency decisions." ⁽⁶⁴⁾ Specifically, three policy purposes consistently have been held to constitute the bases for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency's action. ⁽⁶⁵⁾

Logically flowing from the foregoing policy considerations is the privilege's protection of the "decision making processes of government agencies." ⁽⁶⁶⁾ In concept, the privilege protects not merely documents, but also the integrity of the deliberative process itself where the exposure of that process would result in harm. ⁽⁶⁷⁾

Indeed, in a major en banc decision, the Court of Appeals for the District of Columbia Circuit emphasized that even the mere status of an agency decision within an agency decisionmaking process may be protectible if the release of that information would have the effect of prematurely disclosing "the recommended outcome of the consultative process . . . as well as the source of any decision." ⁽⁶⁸⁾ This is particularly important to agencies involved in a regulatory process that specifically mandates public involvement in the decision process once the agency's deliberations are complete. ⁽⁶⁹⁾ Moreover, the predecisional character of a document is not altered by the fact that an agency has subsequently made a final decision ⁽⁷⁰⁾ or even has decided to not make a final decision. ⁽⁷¹⁾ Nor is it altered by the passage of time in general. ⁽⁷²⁾

Traditionally, the courts have established two fundamental requirements, both of which must be met, for the deliberative process privilege to be invoked. ⁽⁷³⁾ First, the communication must be predecisional, i.e., "antecedent to the adoption of an agency policy." ⁽⁷⁴⁾ Second, the communication must be deliberative, i.e., "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." ⁽⁷⁵⁾ The burden is upon the agency to show that the information in question satisfies both requirements. ⁽⁷⁶⁾

In determining whether a document is predecisional, an agency does not necessarily have to point specifically to an agency final decision, but merely establish "what deliberative process is involved, and the role played by the documents in issue in the course of that process." ⁽⁷⁷⁾ On this point, the Supreme Court has been very clear:

Our emphasis on the need to protect pre-decisional documents does not mean that the existence of the privilege turns on the ability of an agency to identify a specific decision in connection with which a memorandum is prepared. Agencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions; and the lower courts should be wary of interfering with this process. ⁽⁷⁸⁾

Thus, so long as a document is generated as part of such a continuing process of agency decisionmaking, Exemption 5 can be applicable. ⁽⁷⁹⁾ In a particularly instructive decision, Access Reports v. Department of Justice, ⁽⁸⁰⁾ the D.C. Circuit emphasized the importance of identifying the larger process to which a document sometimes contributes. Further, "predecisional" documents are not only those circulated within the agency, but can also be those from an agency lacking decisional authority which advises another agency possessing such authority. ⁽⁸¹⁾ They even can be "documents which the agency decisionmaker herself prepared as part of her deliberation and decisionmaking process." ⁽⁸²⁾ Lastly, it has been held that the privilege is not limited to deliberations connected solely to agency activities that are specifically authorized by Congress. ⁽⁸³⁾

In contrast, however, are postdecisional documents. They generally embody statements of policy and final opinions that have the force of law, ⁽⁸⁴⁾ that implement an established policy of an agency, ⁽⁸⁵⁾ or that explain actions that an agency has already taken. ⁽⁸⁶⁾ Exemption 5 ordinarily does not apply to postdecisional documents, as "the public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted." ⁽⁸⁷⁾ However, if a document is postdecisional in form but predecisional in its content, it may be protectible. For example, one court has held that an e-mail message generated after the relevant agency decision had been made, but which merely reiterated the agency's predecisional deliberations and the author's own recommendations, was essentially predecisional and thus protectible under Exemption 5. ⁽⁸⁸⁾

Many courts have confronted the question of whether certain documents at issue were tantamount to agency "secret law," i.e., "orders and interpretations which [the agency] actually applies to cases before it," ⁽⁸⁹⁾ and which are "routinely used by agency staff as guidance." ⁽⁹⁰⁾ Such documents should be disclosed because they are not in fact predecisional, but rather "discuss established policies and decisions." ⁽⁹¹⁾ Only those portions of a postdecisional document that discuss predecisional recommendations not expressly adopted can be protected. ⁽⁹²⁾

Several criteria have been fashioned to clarify the "often blurred" distinction between predecisional and postdecisional documents. ⁽⁹³⁾ First, an agency should determine whether the document is a "final opinion" within the meaning of one of the two "automatic" disclosure provisions of the FOIA, subsection (a)(2)(A). ⁽⁹⁴⁾ In an extensive consideration of this point, the Court of Appeals for the Fifth Circuit held that, inasmuch as subsection (a)(2)(A) specifies "the adjudication of [a] case[]," Congress intended "final opinions" to be only those decisions resulting from proceedings (such as that in Sears) in which a party invoked (and obtained a decision concerning) a specific statutory right of "general and uniform" applicability. ⁽⁹⁵⁾ However, the D.C. Circuit has stated that Field Service Advice memoranda ("FSAs") issued by the Internal Revenue Service's Office of Chief Counsel are not predecisional documents, because they constitute "statements of an agency's legal position." ⁽⁹⁶⁾ The court reached this conclusion even though the opinions were found to be "nonbinding" on the ultimate decisionmakers. ⁽⁹⁷⁾

Second, one must consider the nature of the decisionmaking authority vested in the office or person issuing the document. ⁽⁹⁸⁾ If the author lacks "legal decision authority," the document is far more likely to be predecisional. ⁽⁹⁹⁾ A crucial caveat in this regard, however, is that courts often look "beneath formal lines of authority to the reality of the decisionmaking process." ⁽¹⁰⁰⁾ Hence, even an assertion by the agency that an official lacks ultimate decisionmaking authority might be "superficial" and unavailing if agency "practices" commonly accord decisionmaking authority to that official. ⁽¹⁰¹⁾ Conversely, an agency official who appears to have final authority may in fact not have such authority or may not be wielding that authority in a particular situation. ⁽¹⁰²⁾

Careful analysis of the decisionmaking process is sometimes required to determine whether the records reflect an earlier preliminary decision or recommendations concerning follow-up issues, ⁽¹⁰³⁾ or whether the document sought reflects a final decision or merely advice to a higher authority. ⁽¹⁰⁴⁾ Thus, agency recommendations to OMB concerning the development of proposed legislation to be submitted to Congress are predecisional, ⁽¹⁰⁵⁾ but descriptions of "agency efforts to ensure enactment of policies already established" are postdecisional. ⁽¹⁰⁶⁾

Third, it is useful to examine the direction in which the document flows along the decisionmaking chain. Naturally, a document "from a subordinate to a superior official is more likely to be predecisional" ⁽¹⁰⁷⁾ than is one that travels in the opposite direction: "[F]inal opinions . . . typically flow from a superior with policymaking authority to a subordinate who carries out the policy." ⁽¹⁰⁸⁾ However, under certain circumstances, recommendations can flow from the superior to the subordinate. ⁽¹⁰⁹⁾ Indeed, even a policymaker's own predecisional notes to herself may be protectible. ⁽¹¹⁰⁾ Perhaps the most important factor to consider is the "'role, if any, that the document plays in the process of agency deliberations.'" ⁽¹¹¹⁾

Finally, even if a document is clearly protected from disclosure by the deliberative process privilege, it may lose this protection if a final decisionmaker "chooses expressly to adopt or incorporate [it] by reference." ⁽¹¹²⁾ However, a few courts have suggested a less stringent standard of "formal or informal adoption." ⁽¹¹³⁾ Also, although mere "approval" of a predecisional document does not necessarily constitute adoption of it, ⁽¹¹⁴⁾ an inference of incorporation or adoption has twice been found to exist where a decisionmaker accepted a staff recommendation without giving a statement of reasons. ⁽¹¹⁵⁾ Nevertheless, where it is unclear whether a recommendation provided the basis for a final decision, the recommendation should be protectible. ⁽¹¹⁶⁾

A second primary limitation on the scope of the deliberative process privilege is that of course it applies only to "deliberative" documents and it ordinarily is inapplicable to purely factual matters, or to factual portions of otherwise deliberative memoranda. ⁽¹¹⁷⁾ Not only would factual material "generally be available for discovery," ⁽¹¹⁸⁾ but its release usually would not threaten consultative agency functions. ⁽¹¹⁹⁾ This seemingly straightforward distinction between deliberative and factual materials can blur, however, where the facts themselves reflect the agency's deliberative process ⁽¹²⁰⁾ -- which has prompted the D.C. Circuit to observe that "the use of the factual matter/deliberative matter distinction produced incorrect outcomes in a small number of cases." ⁽¹²¹⁾ In fact, the full D.C. Circuit has firmly declared that factual information should be examined "in light of the policies and goals that underlie" the privilege and in "the context in which the materials are used." ⁽¹²²⁾

Recognizing the shortcomings of a rigid factual/deliberative distinction, courts generally allow agencies to withhold factual material in an otherwise "deliberative" document under two general types of circumstances. ⁽¹²³⁾ The first circumstance occurs when the author of a document selects specific facts out of a larger group of facts and this very act is deliberative in nature. In Montrose Chemical Corp. v. Train, for example, the summary of a large volume of public testimony compiled to facilitate the EPA Administrator's decision on a particular matter was held to be part of the agency's internal deliberative process. ⁽¹²⁴⁾ The D.C. Circuit held that the very act of distilling the testimony, of separating the significant facts from the insignificant facts, constitutes an exercise of judgment by agency personnel. ⁽¹²⁵⁾ Such "selective" facts are therefore entitled to the same protection as that afforded to purely deliberative materials, as their release would "permit indirect inquiry into the mental processes," ⁽¹²⁶⁾ and so "expose" predecisional agency deliberations. ⁽¹²⁷⁾ Thus, to protect the factual materials, an agency must identify a process which "could reasonably be construed as predecisional and deliberative." ⁽¹²⁸⁾

A D.C. Circuit opinion concerning a report consisting of factual materials prepared for an Attorney General decision on whether to allow former U.N. Secretary General Kurt Waldheim to enter the United States provides an illustration of this factual/deliberative distinction and of the breadth of deliberative process privilege coverage under prevailing case law. ⁽¹²⁹⁾ The D.C. Circuit found that "the majority of [the report's] factual material was assembled through an exercise of judgment in extracting pertinent material from a vast number of documents for the benefit of an official called upon to take discretionary action," and that it therefore fell within the deliberative process privilege. ⁽¹³⁰⁾ By contrast, it also held that a chronology of Waldheim's military career was not deliberative, as it was "neither more nor less than a comprehensive collection of the essential facts" and "reflect[ed] no point of view." ⁽¹³¹⁾

The second such circumstance is when factual information is so inextricably connected to the deliberative material that its disclosure would expose or cause harm to the agency's deliberations. If revealing factual information is tantamount to revealing the agency's deliberations, then the facts may be withheld. ⁽¹³²⁾ For example, the D.C. Circuit has held that the deliberative process privilege covers construction cost estimates, which the court characterized as "elastic facts," finding that their disclosure would reveal the agency's deliberations. ⁽¹³³⁾

Similarly, when factual or statistical information is actually an expression of deliberative communications, it may be withheld on the basis that to reveal that information would reveal the agency's deliberations. ⁽¹³⁴⁾ Exemption 5 thus covers scientific reports that constitute the interpretation of technical data, insofar as "the opinion of an expert reflects the deliberative process of decision or policy making." ⁽¹³⁵⁾ It has even been extended to cover successive reformulations of computer programs that were used to analyze scientific data. ⁽¹³⁶⁾ The government interest in withholding technical data is heightened if such material is requested at a time when disclosure of a scientist's "nascent thoughts . . . would discourage the intellectual risk-taking so essential to technical progress." ⁽¹³⁷⁾ The Court of Appeals for the Ninth Circuit strongly echoed this view in National Wildlife Federation v. United States Forest Service, explaining as follows:

Opinions on facts and [the] consequences of those facts form the grist for the policymaker's mill. Each opinion as to which of the great constellation of facts are relevant and important and each assessment of the implications of those facts suggests a different course of action by the agency. Before arriving at a final decision, the policymaker may alter his or her opinion regarding which facts are relevant or the likely consequences of these facts, or both. Tentative policies may undergo massive revisions based on a reassessment of these variables, during which the agency may decide that certain initial projections are not reasonable or that the likely consequences of a given course of action have been over- or underestimated. Subjecting a policymaker to public criticism on the basis of such tentative assessments is precisely what the deliberative process privilege is intended to prevent. ⁽¹³⁸⁾

Likewise, it is noteworthy that the D.C. Circuit has stated that the "results of . . . factual investigations" may be within the protective scope of Exemption 5. ⁽¹³⁹⁾ However, the D.C. Circuit also has emphasized that agencies bear the burden of demonstrating that disclosure of such information "would actually inhibit candor in the decision-making process." ⁽¹⁴⁰⁾

Documents that are commonly encompassed by the deliberative process privilege include "advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated," ⁽¹⁴¹⁾ the release of which would likely "stifle honest and frank communication within the agency." ⁽¹⁴²⁾ Accordingly, though the courts have not spoken with complete harmony on the subject, the overwhelming weight of authority now holds that "briefing materials" -- such as reports or other documents that summarize issues and advise superiors (either generally or in preparation of congressional testimony) -- are properly protected under the deliberative process privilege. ⁽¹⁴³⁾

A category of documents particularly likely to be found exempt under the deliberative process privilege is "drafts," ⁽¹⁴⁴⁾ although it has been observed without much analysis that such a designation "does not end the inquiry." ⁽¹⁴⁵⁾ It should be remembered, though, that the very process by which a "draft" evolves into a "final" document can itself constitute a deliberative process warranting protection. ⁽¹⁴⁶⁾ As a result, Exemption 5 protection can be available to a draft document regardless of whether it differs from its final version. ⁽¹⁴⁷⁾

Following the 1990 census, the factual/deliberative distinction led to sharply contrasting decisions by two circuit courts of appeal, where the issue was the Commerce Department's withholding of numeric material. ⁽¹⁴⁸⁾ Both the Assembly of the State of California and the Florida House of Representatives sought "adjusted" census figures for their respective states that were developed in the event that the Secretary of Commerce decided to adjust the 1990 census, a choice he opted against. ⁽¹⁴⁹⁾ The Court of Appeals for the Eleventh Circuit applied a rigid "fact or opinion" test in determining whether such numerical data are protectible. ⁽¹⁵⁰⁾ It viewed the census data as "opinion" that was ultimately rejected by the decisionmaker and therefore held them to be withholdable pursuant to the deliberative process privilege. ⁽¹⁵¹⁾ The Ninth Circuit, on the other hand, upheld a lower court's use of a "functional" test under which it found that the data, on "the continuum of deliberation and fact . . . fell closer to fact." ⁽¹⁵²⁾ The Ninth Circuit ordered the California data released on the basis that disclosure would not reveal any of the Department of Commerce's deliberative processes. ⁽¹⁵³⁾ The Ninth Circuit reached a similar conclusion in a case brought over statistical estimates compiled as part of the 2000 census. ⁽¹⁵⁴⁾ As none of these cases went to the Supreme Court, this narrow conflict remains.

In a case involving purely factual data found not to fall within the deliberative process privilege, Petroleum Information Corp. v. United States Department of the Interior, the D.C. Circuit concluded that such factual information should be shielded by the privilege, or not, according to whether it involves "some policy matter." ⁽¹⁵⁵⁾ It focused on "whether the agency has plausibly demonstrated the involvement of a policy judgment in the decisional process relevant to the requested documents," ⁽¹⁵⁶⁾ while at the same time suggesting that more "mundane" documents should be protected when "disclosure genuinely could be thought likely to diminish the candor of agency deliberations in the future." ⁽¹⁵⁷⁾ This highly questionable approach has been used by a few other courts, ⁽¹⁵⁸⁾ but it should provide no more than a point of departure for any exercise of sound administrative discretion in the application of the deliberative process privilege by an agency on a case-by-case basis. ⁽¹⁵⁹⁾ Indeed, a much more practical and sensible approach is that which was taken by the Ninth Circuit in National Wildlife, where it flatly rejected the suggestion that it impose such a requirement that documents contain "recommendations on law or policy to qualify as deliberative." ⁽¹⁶⁰⁾

Lastly, protecting the very integrity of the deliberative process can, in some contexts, be the basis for the protection of factual information. ⁽¹⁶¹⁾ Similarly under some circumstances disclosure of even the identity of the author of a deliberative document could chill the deliberative process, thus warranting protection of that identity under Exemption 5, ⁽¹⁶²⁾ even in circumstances in which a final version of the document in question has been released to the public. ⁽¹⁶³⁾ Indeed, one court has specifically noted that the danger of revealing the agency's deliberations by disclosing facts is particularly acute when the document withheld is "short." ⁽¹⁶⁴⁾ Factual information within a deliberative document also may be withheld when it is impossible to reasonably segregate meaningful portions of that factual information from the deliberative information. ⁽¹⁶⁵⁾

Attorney Work-Product Privilege

The second traditional privilege incorporated into Exemption 5 is the attorney work-product privilege, which protects documents and other memoranda prepared by an attorney in contemplation of litigation. ⁽¹⁶⁶⁾ As its purpose is to protect the adversarial trial process by insulating the attorney's preparation from scrutiny, ⁽¹⁶⁷⁾ the work-product privilege ordinarily does not attach until at least "some articulable claim, likely to lead to litigation," has arisen. ⁽¹⁶⁸⁾ The privilege is not limited to civil proceedings, but rather extends to administrative proceedings ⁽¹⁶⁹⁾ and to criminal matters as well. ⁽¹⁷⁰⁾ Similarly, the privilege has also been held applicable to documents generated in preparation of an amicus brief. ⁽¹⁷¹⁾

The privilege sweeps broadly in several respects. ⁽¹⁷²⁾ First, litigation need never have actually commenced, so long as specific claims have been identified which make litigation probable. ⁽¹⁷³⁾ Significantly, the Court of Appeals for the District of Columbia Circuit has ruled that the privilege "extends to documents prepared in anticipation of foreseeable litigation, even if no specific claim is contemplated." ⁽¹⁷⁴⁾ The privilege also has been held to attach to records of law enforcement investigations, when the investigation is "based upon a specific wrongdoing and represent[s] an attempt to garner evidence and build a case against the suspected wrongdoer." ⁽¹⁷⁵⁾

However, the mere fact that it is conceivable that litigation might occur at some unspecified time in the future will not necessarily be sufficient to protect attorney-generated documents; it has been observed that "the policies of the FOIA would be largely defeated" if agencies were to withhold any documents created by attorneys "simply because litigation might someday occur." ⁽¹⁷⁶⁾ But when litigation is reasonably regarded as inevitable under the circumstances, a specific claim need not yet have arisen, ⁽¹⁷⁷⁾ and agencies can obtain necessary protection through the attorney work-product privilege. ⁽¹⁷⁸⁾

Further, it has been held that a document that was prepared for two disparate purposes was compiled in anticipation of litigation if "litigation was a major factor" in the decision to create it. ⁽¹⁷⁹⁾ However, documents pre-pared in an agency's ordinary course of business, not under circumstances sufficiently related to litigation, may not be accorded protection. ⁽¹⁸⁰⁾

The attorney work-product privilege also has been held to cover documents "relat[ing] to possible settlements" of litigation. ⁽¹⁸¹⁾ Logically, it can also protect the recommendation to close a litigation or prelitigation matter, ⁽¹⁸²⁾ and even the final agency decision to terminate litigation. ⁽¹⁸³⁾ But doc-uments prepared subsequent to the closing of a case are presumed, absent some specific basis for concluding otherwise, not to have been prepared in anticipation of litigation. ⁽¹⁸⁴⁾ Moreover, one court has held that documents not originally prepared in anticipation of litigation cannot assume the protection of the work-product privilege merely through their later placement in a litigation-related document. ⁽¹⁸⁵⁾

Second, Rule 26(b)(3) of the Federal Rules of Civil Procedure allows the privilege to be used to protect documents prepared "by or for another party or by or for that other party's representative." Not only do documents prepared by agency attorneys who are responsible for the litigation of a case which is being defended or prosecuted by the Department of Justice qualify for the privilege, ⁽¹⁸⁶⁾ but also documents prepared by an attorney "not employed as a litigator." ⁽¹⁸⁷⁾ Courts have also accorded work-product protection to materials prepared by nonattorneys who are supervised by attorneys. ⁽¹⁸⁸⁾ The premise in such cases is that work-product protection is appropriate when the nonattorney acts as the agent of the attorney; when that is not the case, the work-product privilege as incorporated by the FOIA has not been extended to protect the material prepared by the nonattorney. ⁽¹⁸⁹⁾

Third, the work-product privilege has been held to remain applicable when the information has been shared with a party holding a common interest with the agency. ⁽¹⁹⁰⁾ The privilege remains applicable also when the document has become the basis for a final agency decision. ⁽¹⁹¹⁾

In NLRB v. Sears, Roebuck & Co., ⁽¹⁹²⁾ the Supreme Court allowed the withholding of a final agency decision on the basis that it was shielded by the work-product privilege, ⁽¹⁹³⁾ but it also stated that Exemption 5 can never apply to final decisions and it expressed reluctance to "construe Exemption 5 to apply to documents described in 5 U.S.C. § 552(a)(2)," ⁽¹⁹⁴⁾ the "reading room" provision of the FOIA. ⁽¹⁹⁵⁾ This result inevitably led to no small amount of confusion, ⁽¹⁹⁶⁾ which was cleared up by the Supreme Court in Federal Open Market Committee v. Merrill. ⁽¹⁹⁷⁾ In Merrill, the Court explained its statements in Sears, ⁽¹⁹⁸⁾ and plainly stated that even if a document is a final opinion, and therefore falls within subsection (a)(2)'s mandatory disclosure requirements, it still may be withheld if it falls within the work-product privilege. ⁽¹⁹⁹⁾ (For a discussion of the automatic disclosure requirements of subsection (a)(2), see FOIA Reading Rooms, above.)

Fourth, the Supreme Court's decisions in United States v. Weber Aircraft Corp. ⁽²⁰⁰⁾ and FTC v. Grolier Inc., ⁽²⁰¹⁾ viewed in light of the traditional contours of the attorney work-product doctrine, afford sweeping attorney work-product protection to factual materials. Because factual work-product enjoys qualified immunity from civil discovery, such materials are discoverable "only upon a showing that the party seeking discovery has substantial need" of materials which cannot be obtained elsewhere without "undue hardship." ⁽²⁰²⁾ In Grolier, the Supreme Court held that the "test under Exemption 5 is whether the documents would be 'routinely' or 'normally' disclosed upon a showing of relevance." ⁽²⁰³⁾ Because the rules of civil discovery require a showing of "substantial need" and "undue hardship" in order for a party to obtain any factual work-product, ⁽²⁰⁴⁾ such materials are not "routinely" or "normally" discoverable. This "routinely or normally discoverable" test was unanimously reaffirmed by the Supreme Court in Weber Aircraft. ⁽²⁰⁵⁾

Although several pre-Weber Aircraft circuit court decisions mistakenly limited attorney work-product protection to "deliberative" material, ⁽²⁰⁶⁾ no distinction between factual and deliberative work-product should be applied. ⁽²⁰⁷⁾ Almost all courts have taken this broad view of the privilege, including the D.C. Circuit, to clarify once and for all that factual information is fully entitled to work-product protection. ⁽²⁰⁸⁾ However, it should be remembered that the agency always has the burden of showing that the privilege applies to all withheld information. ⁽²⁰⁹⁾

A collateral issue is the applicability of the attorney work-product privilege to witness statements. Within the civil discovery context, the Supreme Court has recognized at least a qualified privilege from civil discovery for such documents -- such material was held discoverable only upon a showing of necessity and justification. ⁽²¹⁰⁾ Applying the "routinely and normally discoverable" test of Grolier and Weber Aircraft, the D.C. Circuit has firmly held that witness statements are protectible under Exemption 5. ⁽²¹¹⁾ Although some courts by contrast have mistakenly held that witness statements are merely unprivileged factual information that must be segregated for disclosure, ⁽²¹²⁾ the weight of authority supports the conclusion that the contours of Exemption 5's privilege incorporation are coextensive with the protective scope of the attorney work-product privilege. ⁽²¹³⁾ Indeed, witness statements were the very records at issue in Hickman v. Taylor, ⁽²¹⁴⁾ the seminal case in which the Supreme Court articulated the attorney work-product privilege doctrine. ⁽²¹⁵⁾

Any such differences over the traditional protection accorded witness statements do not in any event affect the viability of protecting aircraft accident witness statements; such statements are protected under a distinct common law privilege that was first enunciated in Machin v. Zuckert ⁽²¹⁶⁾ and then was applied under the FOIA in Weber Aircraft. ⁽²¹⁷⁾ (See the discussion under Exemption 5, Other Privileges, below.)

As a final point, it should be noted that the Supreme Court's decision in Grolier resolved a split in the circuits by ruling that the termination of litigation does not vitiate the protection for material otherwise properly categorized as attorney work-product. ⁽²¹⁸⁾ Thus, as a matter of law, there is no temporal limitation on work-product protection under the FOIA. ⁽²¹⁹⁾ However, such protection may be vitiated if the withholding of attorney work-product material would also shield from disclosure the unprofessional practices of an attorney by whom or under whose direction the material was prepared. ⁽²²⁰⁾ Otherwise, there is no "public interest" exception to the application of the work-product privilege ⁽²²¹⁾ under Exemption 5. ⁽²²²⁾

Attorney-Client Privilege

The third traditional privilege incorporated into Exemption 5 concerns "confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice." ⁽²²³⁾ Unlike the attorney work-product privilege, the attorney-client privilege is not limited to the context of litigation. ⁽²²⁴⁾ Moreover, although it fundamentally applies to facts divulged by a client to his attorney, this privilege also encompasses any opinions given by an attorney to his client based upon, and thus reflecting, those facts, ⁽²²⁵⁾ as well as communications between attorneys that reflect client-supplied information. ⁽²²⁶⁾

The Supreme Court, in the civil discovery context, has emphasized the public policy underlying the attorney-client privilege -- "that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client." ⁽²²⁷⁾ As is set out in greater detail in the discussion of the attorney work-product above, the Supreme Court held in United States v. Weber Aircraft Corp. ⁽²²⁸⁾ and in FTC v. Grolier Inc. ⁽²²⁹⁾ that the scopes of the various privileges are coextensive in the FOIA and civil discovery contexts. ⁽²³⁰⁾ Thus, any FOIA decision that might purport to expand or contract the privilege's contours according to whether the privilege is presented in a civil discovery or a FOIA context ⁽²³¹⁾ does not accurately reflect the state of the law on this issue. ⁽²³²⁾

The parallelism of a civil discovery privilege and Exemption 5 protection is particularly significant with respect to the concept of a "confidential communication" within the attorney-client relationship. To this end, one court has held that confidentiality may be inferred when the communications suggest that "'the government is dealing with its attorneys as would any private party seeking advice to protect personal interests.'" ⁽²³³⁾ In Upjohn Co. v. United States, the Supreme Court held that the attorney-client privilege covers attorney-client communications when the specifics of the communication are confidential, even though the underlying subject matter is known to third parties. ⁽²³⁴⁾ Accordingly, the line of FOIA decisions in the Court of Appeals for the District of Columbia Circuit that squarely conflicts with the Upjohn analysis ⁽²³⁵⁾ should not be followed. ⁽²³⁶⁾

The Supreme Court in Upjohn concluded that the privilege encompasses confidential communications made to the attorney not only by decisionmaking "control group" personnel, but also by lower-echelon employees. ⁽²³⁷⁾ This broad construction of the attorney-client privilege acknowledges the reality that such lower-echelon personnel often possess information relevant to an attorney's advice-rendering function. ⁽²³⁸⁾ However, in 1997 the D.C. Circuit held that otherwise confidential agency memoranda are not protected under the privilege if they are authoritative interpretations of agency law. ⁽²³⁹⁾

Other Privileges

The FOIA neither expands nor contracts existing privileges, nor does it create any new privileges. ⁽²⁴⁰⁾ However, the Supreme Court has indicated that Exemption 5 may incorporate virtually all civil discovery privileges; if a document is immune from civil discovery, it is similarly protected from mandatory disclosure under the FOIA. ⁽²⁴¹⁾ Because Rule 501 of the Federal Rules of Evidence allows courts to create privileges as necessary, ⁽²⁴²⁾ there exists the potential for "new privileges" to be applied under Exemption 5. ⁽²⁴³⁾ However, one major caveat should be noted in the application of any discovery privilege under the FOIA: A privilege should not be used against a requester who would routinely receive such information in civil discovery. ⁽²⁴⁴⁾

A quarter-century ago, in Federal Open Market Committee v. Merrill, ⁽²⁴⁵⁾ the Supreme Court found an additional privilege incorporated within Exemption 5 based upon Federal Rule of Civil Procedure 26(c)(7), which provides that "for good cause shown . . . a trade secret or other confidential research, development or commercial information" is protected from discovery. This qualified privilege is available "at least to the extent that this information is generated by the Government itself in the process leading up to the awarding of a contract" and expires upon the awarding of the contract or upon the withdrawal of the offer. ⁽²⁴⁶⁾ The theory underlying the privilege is that early release of such information would likely put the government at a competitive disadvantage by endangering consummation of a contract; consequently, "the sensitivity of the commercial secrets involved, and the harm that would be inflicted upon the Government by premature disclosure should . . . serve as relevant criteria." ⁽²⁴⁷⁾

This harm rationale has led one court to hold that the commercial privilege may be invoked when a contractor who has submitted proposed changes to the contract requests sensitive cost estimates. ⁽²⁴⁸⁾ Based upon this underlying theory, there is nothing in Merrill to prevent it from being read more expansively to protect the government from competitive disadvantage outside of the contract setting, as the issue in Merrill was not presented strictly within such a setting. ⁽²⁴⁹⁾ However, the Court of Appeals for the District of Columbia Circuit has declined to extend this privilege to scientific research, holding that the agency failed to show that such material is "generally protected in civil discovery for reasons similar to those asserted in the FOIA context." ⁽²⁵⁰⁾

While the breadth of this privilege is still not fully established, a realty appraisal generated by the government in the course of soliciting buyers for its property has been held to fall squarely within it, ⁽²⁵¹⁾ as have documents containing communications between agency personnel, potential buyers, and real estate agents concerning a proposed sale of government-owned real estate, ⁽²⁵²⁾ an agency's background documents which it used to calculate its bid in a "contracting out" procedure, ⁽²⁵³⁾ and portions of inter-agency cost estimates prepared by the government for use in the evaluation of construction proposals submitted by private contractors. ⁽²⁵⁴⁾ Quite clearly, however, purely legal memoranda drafted to assist contract-award deliberations are not encompassed by this privilege. ⁽²⁵⁵⁾

The Supreme Court in United States v. Weber Aircraft Corp. ⁽²⁵⁶⁾ held that Exemption 5 incorporates the special privilege protecting witness statements generated during Air Force aircraft accident investigations. ⁽²⁵⁷⁾ Broadening the holding of Merrill that a privilege "mentioned in the legislative history of Exemption 5 is incorporated by the exemption," ⁽²⁵⁸⁾ the Court held in Weber Aircraft that this long-recognized civil discovery privilege, even though not specifically mentioned in that legislative history, nevertheless falls within Exemption 5. ⁽²⁵⁹⁾ The "plain statutory language" ⁽²⁶⁰⁾ and the clear congressional intent to sustain claims of privilege when confidentiality is necessary to ensure efficient governmental operations ⁽²⁶¹⁾ support this result. ⁽²⁶²⁾  This privilege also has been applied to protect statements made in Inspector General investigations. ⁽²⁶³⁾

Similarly, in Hoover v. Department of the Interior, the Court of Appeals for the Fifth Circuit recognized an Exemption 5 privilege based on Federal Rule of Civil Procedure 26(b)(4), which limits the discovery of reports prepared by expert witnesses. ⁽²⁶⁴⁾ The document at issue in Hoover was an appraiser's report prepared in the course of condemnation proceedings. ⁽²⁶⁵⁾ In support of its conclusions, the Fifth Circuit stressed that such a report would not have been routinely discoverable and that premature release would jeopardize the bargaining position of the government. ⁽²⁶⁶⁾

Most recently, in Judicial Watch, Inc. v. Department of Justice, the D.C. Circuit applied the presidential communications privilege -- a privilege it had first recognized just seven years earlier ⁽²⁶⁷⁾ -- under Exemption 5 of the FOIA to protect Department of Justice records regarding the President's exercise of his constitutional power to grant pardons. ⁽²⁶⁸⁾ This privilege, which protects communications among the President and his advisors, is unique among those recognized under Exemption 5 of the FOIA in that it is "'inextricably rooted in the separation of powers under the Constitution.'" ⁽²⁶⁹⁾ Although similar to the deliberative process privilege, it is broader in its coverage because it "'applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.'" ⁽²⁷⁰⁾ One significant issue not yet ultimately resolved, however, is whether the privilege protects all records created within an agency to assist the President in the exercise of his nondelegable constitutional duties or is limited to those records that are "solicited and received by the President or his immediate advisers in the Office of the President." ⁽²⁷¹⁾

In the wake of the Supreme Court's decision three years ago in Department of the Interior v. Klamath Water Users Protective Association, ⁽²⁷²⁾ the law is somewhat unsettled as to documents generated in the course of settlement negotiations. ⁽²⁷³⁾ So long as the underlying litigation in which the settlement communications were generated does not involve competition between or among outside parties over limited resources, or anything else of relative value, the Supreme Court's ruling in Klamath should not affect the Exemption 5 threshold analysis directly. ⁽²⁷⁴⁾ In any case involving multiple outside parties competing for a government benefit, however, Klamath may bar the use of Exemption 5 to withhold settlement communications between such outside parties and the government as a threshold matter. ⁽²⁷⁵⁾

Prior to Klamath, several courts had held that communications reflecting settlement negotiations between the government and an adverse party, which are of necessity exchanged between the parties, could not be protected as "intra-agency" memoranda under Exemption 5. ⁽²⁷⁶⁾ However, several of those courts also recognized the great difficulties inherent in such a harsh Exemption 5 construction, especially in light of the "logic and force of [the] policy plea" ⁽²⁷⁷⁾ that the government's indispensable settlement mechanism can be impeded by such a result. ⁽²⁷⁸⁾

Accordingly, one court has held that notes of an agency employee that reflected positions taken and issues raised in treaty negotiations had been properly withheld pursuant to Exemption 5 because their release would harm the agency's negotiation process. ⁽²⁷⁹⁾ Other courts have found the attorney work-product and deliberative process privileges to be properly invoked for documents prepared by agency personnel that reflected the substance of meetings between adverse parties and agency personnel in preparation for eventual settlement of a case. ⁽²⁸⁰⁾ Most significantly, one court explicitly applied the settlement privilege to affirm the withholding of settlement documents under Exemption 4. ⁽²⁸¹⁾ Furthermore, Justice Brennan, noting the need for protecting attorney work-product information, specifically cited as a particular disclosure danger the ability of adverse parties to "gain insight into the agency's general strategic and tactical approach to deciding when suits are brought . . . and on what terms they may be settled." ⁽²⁸²⁾

Finally, and most significantly, during the past year the United States Court of Appeals for the Sixth Circuit was presented in Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., a non-FOIA case, with the specific question of whether to recognize a civil discovery privilege for documents exchanged between parties in the course of settlement negotiations. ⁽²⁸³⁾ In making this determination, this appellate court quite properly considered the Supreme Court's directive to federal courts to recognize new discovery privileges when "reason and experience" show that there is a sufficiently strong public interest to be served by doing so. ⁽²⁸⁴⁾ Following this guidance by taking cognizance of the numerous and significant problems raised by the potential availability of settlement negotiation documents and of the inherent need to protect the confidentiality of such exchanges, the Sixth Circuit explicitly recognized a discovery privilege for documents exchanged between parties engaged in settlement negotiations. ⁽²⁸⁵⁾ This ruling, which thus firmly establishes the settlement-negotiation privilege, now provides vital precedential support for all courts to employ it whenever applicable under Exemption 5. ⁽²⁸⁶⁾

It is noteworthy in this regard that while earlier cases had not gone quite so far as to squarely recognize a settlement-negotiation privilege identified as such, many had ruled that parties making discovery demands for settlement communications would be required to make heightened, or "particularized," showings of relevancy in order to obtain them in civil discovery. ⁽²⁸⁷⁾ Because settlement communications subject to such a discovery standard would not be "routinely and normally discoverable" under the test enunciated by the Supreme Court in FTC v. Grolier Inc. ⁽²⁸⁸⁾ and United States v. Weber Aircraft Corp., ⁽²⁸⁹⁾ they should also be protectible under Exemption 5 provided that the threshold requirement of the exemption is fully satisfied. ⁽²⁹⁰⁾

Accordingly, in light of this authoritative array of supporting precedent and the Sixth Circuit's express recognition of the settlement-negotiation privilege in Goodyear Tire -- much like the D.C. Circuit's recognition of the aircraft accident investigation privilege forty years earlier in Machin ⁽²⁹¹⁾ -- such information may be withheld by agencies at the administrative level under Exemption 5, within the threshold conditions imposed by Klamath, ⁽²⁹²⁾ especially where disclosure would be particularly damaging to the government's ability to settle cases -- but care should of course be taken to maximize the prospects of further favorable case law development on this important FOIA principle. ⁽²⁹³⁾

Because Exemption 5 incorporates virtually all civil discovery privileges, courts also have recognized the applicability of other privileges, whether traditional or new, in the FOIA context. ⁽²⁹⁴⁾ Among those other privileges now recognized for purposes of the FOIA are the confidential report privilege, ⁽²⁹⁵⁾ the presentence report privilege, ⁽²⁹⁶⁾ the critical self-evaluative privilege, ⁽²⁹⁷⁾ the expert materials privilege, ⁽²⁹⁸⁾ and the federal mediation privilege. ⁽²⁹⁹⁾

Lastly, while it is evident that courts will continue to apply such civil discovery privileges under Exemption 5 of the FOIA, the mere fact that a particular privilege has been recognized by state law will not necessarily mean that it will be recognized by a federal court. ⁽³⁰⁰⁾

1. 5 U.S.C. § 552(b)(5) (2000).

2. See, e.g., United States Dep't of Justice v. Julian, 486 U.S. 1, 19 n.1 (Scalia, J., dissenting on a point not reached by the majority) (discussing the "most natural reading" of the threshold and the "problem[s]" inherent in reading it in that way).

3. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see FTC v. Grolier Inc., 462 U.S. 19, 26 (1983); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987); see also Attorney General's Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001), reprinted in FOIA Post (posted 10/15/01) (highlighting importance of protecting privileged information).

4. Fed. Open Mkt. Comm. v. Merrill, 443 U.S. 340, 354 (1979).

5. See United States v. Weber Aircraft Corp., 465 U.S. 792, 800 (1984); see also FOIA Update, Vol. V, No. 4, at 6. But see also Burka v. HHS, 87 F.3d 508, 517 (D.C. Cir. 1996) ("[T]o justify nondisclosure under Exemption 5, an agency must show that the type of material it seeks to withhold is generally protected in civil discovery for reasons similar to those asserted by the agency in the FOIA context.").

6. Martin, 819 F.2d at 1185; see also Badhwar v. United States Dep't of the Air Force, 829 F.2d 182, 184 (D.C. Cir. 1987) ("Exemption 5 requires the application of existing rules regarding discovery.").

7. See Burka v. HHS, 87 F.3d 508, 517 (D.C. Cir. 1996); see also Julian, 486 U.S. at 13 (1988) (holding that presentence report privilege, designed to protect report subjects, cannot be invoked against them as first-party requesters).

8. See id.

9. Sears, 421 U.S. at 149 n.16.

10. H.R. Rep. No. 89-1497, at 10 (1966), reprinted in 1966 U.S.C.C.A.N. 2418.

11. See Grolier, 462 U.S. at 27; see also FOIA Update, Vol. V, No. 4, at 6.

12. See Grolier, 462 U.S. at 28; Sears, 421 U.S. at 149; see also, e.g., Martin, 819 F.2d at 1184 ("[T]he needs of a particular plaintiff are not relevant to the exemption's applicability."); Swisher v. Dep't of the Air Force, 660 F.2d 369, 371 (8th Cir. 1981) (observing that applicability of Exemption 5 is in no way diminished by fact that privilege may be overcome by showing of "need" in civil discovery context); Bilbrey v. United States Dep't of the Air Force, No. 00-0539, slip op. at 11 (W.D. Mo. Jan. 30, 2001) ("Once a government agency makes a prima facie showing of privilege, the analysis under FOIA Exemption 5 ceases, and does not proceed to the balancing of interests."), aff'd, No. 01-1789, 2001 WL 1222471, at *1 (8th Cir. Oct. 16, 2001) (unpublished table decision). But see In re Diet Drugs Prods. Liability Litig., No. 1203, 2000 WL 1545028, at *4 (E.D. Pa. Oct. 12, 2000) (mistakenly stating that a court must balance the "relative interests of the parties" in determining the applicability of the deliberative process privilege under Exemption 5).

13. See Weber Aircraft, 465 U.S. at 801-02 ("We do not think that Congress could have intended that the weighty policies underlying discovery privileges could be so easily circumvented."); see also Martin, 819 F.2d at 1186 (Where a requester is "unable to obtain those documents using ordinary civil discovery methods, . . . FOIA should not be read to alter that result."); cf. Nat'l Ass'n of Criminal Def. Lawyers, No. 97-372, slip op. at 8-10 (D.D.C. July 22, 1998) (holding that although agency made limited disclosures of report pursuant to criminal discovery rules, it was protectible because it was not "normally available by law" to party in litigation with agency).

14. See H.R. Rep. No. 93-1380, at 13 (1974); see also FOIA Update, Vol. X, No. 2, at 4.

15. See Julian, 486 U.S. at 13 (holding that presentence report privilege, designed to protect reports' subjects, cannot be invoked against them as first-party requesters); see also United States v. Kipta, No. 97-638-1, 2001 WL 477153, at *1 (N.D. Ill. May 3, 2001) (following Julian).

16. See Sears, 421 U.S. at 149.

17. See United States Dep't of Justice v. Julian, 486 U.S. 1, 19 n.1 (1988) (Scalia, J., dissenting on a point not reached by the majority) (observing that "the most natural meaning of the phrase 'intra-agency memorandum' is a memorandum that is addressed both to and from employees of a single agency -- as opposed to an 'inter-agency memorandum,' which would be a memorandum between employees of two different agencies").

18. 532 U.S. 1 (2001); see also FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01) (discussing meaning, contours, and implications of Klamath decision).

19. Klamath, 532 U.S. at 12.

20. Id. at 12 n.4.

21. Id. at 16.

22. See FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01) (analyzing differences between Supreme Court's and Ninth Circuit's decisions).

23. Klamath Water Users Protective Ass'n v. Department of the Interior, 189 F.3d 1034, 1038 (9th Cir. 1999), aff'd, 532 U.S. 1 (2001).

24. See FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01) (emphasizing that "the Supreme Court ultimately applied an Exemption 5 threshold test rooted in . . . competition . . . not the Ninth Circuit's more general test that disqualified an outside party due to the existence of a self-interest alone").

25. Klamath, 532 U.S. at 12.

26. Id. (emphasis added).

27. See id. at 12 n.4 (declining to overrule Pub. Citizen, Inc. v. United States Dep't of Justice, 111 F.3d 168, 170-72 (D.C. Cir. 1997), and Ryan v. Dep't of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980), both of which "arguably extend beyond" the "typical examples" of cases of consultants whose communications have been considered "intra-agency").

28. See FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01) (pointing out that Public Citizen and Ryan, "and their potential progeny, stand apart from what clearly was rejected under the Court's bottom-line threshold test").

29. See Burt A. Braverman & Francis J. Chetwynd, Information Law: Freedom of Information, Privacy, Open Meetings, and Other Access Laws § 9-3.1 (1985 & Supp. 1990).

30. See, e.g., Durns v. Bureau of Prisons, 804 F.2d 701, 704 n.5 (D.C. Cir. 1986) (employing "a functional rather than a literal test in assessing whether memoranda are 'inter-agency or intra-agency'"), cert. granted, judgment vacated on other grounds & remanded, 486 U.S. 1029 (1988).

31. See Klamath, 532 U.S. at 9-11 (discussing cases involving communications from "outside consultants"); see also FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01) (pointing out that such "outside consultant" decisions "still stand as sound precedents for the satisfaction of Exemption 5's threshold requirement").

32. 617 F.2d 781 (D.C. Cir. 1980).

33. Id. at 790; see also Hooper v. Bowen, No. 88-1030, slip op. at 18 (C.D. Cal. May 24, 1989) ("courts have regularly construed this threshold test expansively rather than hypertechnically"); FOIA Update, Vol. III, No. 3, at 10 ("FOIA Counselor: Protecting 'Outside' Advice"); cf. Nat'l Ass'n of Criminal Def. Lawyers v. United States Dep't of Justice, No. 97-372, slip op. at 7-8 (D.D.C. July 22, 1998) (protecting agency-generated draft report circulated to nongovernmental parties for review and comment).

34. See Ryan, 617 F.2d at 790 (protecting recommendations on judicial nomination process made by senators to Attorney General).

35. See Tigue v. United States Dep't of Justice, 312 F.3d 70, 78-79 (2d Cir. 2002) (protecting recommendations from a United States Attorney's Office to the Webster Commission, which was established to serve "as a consultant to the IRS").

36. See Citizens for Pa.'s Future v. United States Dep't of the Interior, 218 F.R.D. 441, 446-47 (M.D. Pa. 2003) (protecting documents exchanged between the Department of the Interior and the Pennsylvania Department of Environmental Protection pursuant to a joint regulatory mandate) (appeal pending); see also Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 39 (D.C. Cir. 2002) (holding that particular documents provided by state agency to Department of the Interior had not contributed to Department's deliberative process and therefore could not be protected by Exemption 5, but not disagreeing that such documents provided by a state agency to a federal agency could meet Exemption 5's threshold); cf. United States v. Allsteel, Inc., No. 87-C-4638, 1988 WL 139361, at *2 (N.D. Ill. Dec. 21, 1988) (non-FOIA case protecting documents exchanged between federal and state co-regulators).

37. See Hertzberg v. Veneman, 273 F. Supp. 2d 67, 76 n. 2 (D.D.C. 2003) (holding that "witness statements from Forest Service contractor employees may be considered 'inter-agency or intra-agency' for the purpose of Exemption 5," citing Klamath, 532 U.S. at 10-11).

38. Durns, 804 F.2d at 704 & n.5 (applying Exemption 5 to presentence report prepared by probation officer for sentencing judge, with copies provided to Parole Commission and Bureau of Prisons); cf. Badhwar v. United States Dep't of the Air Force, 829 F.2d 182, 184-85 (D.C. Cir. 1987) (upholding application of Exemption 5 -- without discussing "inter-agency or intra-agency" threshold -- to material supplied by outside contractors).

39. Soucie v. David, 448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971); cf. CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1161 (D.C. Cir. 1987) (recognizing importance of outside consultants in deliberative process privilege context).

40. Hoover v. United States Dep't of the Interior, 611 F.2d 1132, 1138 (5th Cir. 1980) (protecting appraiser's report solicited by agency); see also, e.g., Lead Indus. Ass'n v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979) (protecting consultant's report concerning safe levels of workplace lead exposure); Wu v. Nat'l Endowment for the Humanities, 460 F.2d 1030, 1032 (5th Cir. 1972) (protecting recommendations of volunteer consultants); Citizens Progressive Alliance v. United States Bureau of Indian Affairs, 241 F. Supp. 2d 1342, 1355 (D.N.M. 2002) (protecting recommendations provided by private company hired by BIA); cf. Rashid v. HHS, No. 98-0898, slip op. at 6-7 (D.D.C. Mar. 2, 2000) (holding correspondence sent by Assistant United States Attorney to expert witness, requesting evaluation of evidence in case, protectible under attorney work-product privilege); Gen. Elec. Co. v. EPA, 18 F. Supp. 2d 138, 142 (D. Mass. 1998) ("[L]etters from a federal agency to a state agency that solicit or respond to the state agency's input in an effort to coordinate and tailor joint regulatory efforts may be no less a part of the federal agency's deliberative processes than the state agency's recommendations or advice when acted upon at the federal level."); Judicial Watch, Inc. v. Comm'n on United States-Pac. Trade & Inv. Policy, No. 97-0099, slip op. at 9 (D.D.C. Sept. 30, 1999) (protecting recommendations from individuals outside government regarding proposed executive branch appointees); S.A. Ludsin & Co. v. SBA, No. 96-CV-5972, 1998 WL 355394, at **2-3 (E.D.N.Y. Apr. 2, 1998) (protecting documents prepared by paid outside consultants); Hooper, No. 88-1030, slip op. at 17-19 (C.D. Cal. May 24, 1989) (protecting records originating with private insurance companies which acted as "fiscal intermediaries" for Health Care Financing Administration); Am. Soc'y of Pension Actuaries v. Pension Benefit Guar. Corp., 3 Gov't Disclosure Serv. (P-H) ¶ 83,182, at 83,846 (D.D.C. June 14, 1983) (protecting documents prepared by paid outside consultants).

41. 917 F.2d 571, 574-75 (D.C. Cir. 1990); see also Texas v. ICC, 889 F.2d 59, 61 (5th Cir. 1989) (holding that a document sent from an agency to an outside party did not meet the threshold standard because it was "a mere request for information, not a consultation or a solicitation of expert advice"); Paisley v. CIA, 712 F.2d 686, 699 n.54 (D.C. Cir. 1983) (presaging Dow Jones by suggesting that agency responses to congressional requests for information may not constitute protectible "inter-agency" communications); cf. Hennessey v. United States Agency for Int'l Dev., No. 97-1133, 1997 WL 537998, at *3 (4th Cir. Sept. 2, 1997) (finding no "intra-agency 'deliberative process,'" as agency intended all interested parties to be involved in decision).

42. See Judicial Watch, Inc. v. United States Dep't of Energy, No. 01-0981, 2004 WL 635180 at **29-30 (D.D.C. Mar. 31, 2004) (relying on Dow Jones, inter alia, to find that commission is not an "agency"), motion for reconsideration denied & stay pending appeal granted (May 26, 2004).

43. 410 U.S. 74, 75, 85 (1973) (emphasis added).

44. No. 03-5098, 2004 WL 980826, at *11 (D.C. Cir. May 7, 2004).

45. See, e.g., McDonnell v. Clinton, No. 97-1535, 1997 WL 33321085, at *1 (D.D.C. July 3, 1997) (holding that the "Office of the President, including its personal staff . . . whose sole function is to advise and assist the President, does not fall within the definition of agency" (citing Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150-55 (1980))), aff'd, 132 F.3d 1481 (D.C. Cir. 1997) (unpublished table decision).

46. Cf. AFL-CIO v. FEC, 177 F. Supp. 2d 48, 64 (D.D.C. 2002) (suggesting that FOIA might be "unconstitutional as applied" in particular context, while not reaching issue due to "judicial preference for resolving matters on non-constitutional grounds"), aff'd on other grounds, 333 F.2d 168 (D.C. Cir. 2003); accord Mink, 410 U.S. at 85 (avoiding constitutional infirmity, albeit sub silentio, through nondisclosure result).

47. 889 F.2d 1118 (D.C. Cir. 1989).

48. Id. at 1123-24.

49. Id. (citing CNA, 830 F.2d at 1161); see also Weinstein v. HHS, 977 F. Supp. 41, 44-45 (D.D.C. 1997) (protecting evaluations by outside scientific experts utilized in "NIH's competitive grant application process"). But see Texas, 889 F.2d at 62 (embracing old "functional test" but finding it not satisfied for documents submitted by private party not standing in any consultative or advisorial role with agency).

50. 111 F.3d 168 (1997).

51. 44 U.S.C. §§ 2201-07 (2000).

52. 111 F.3d at 171.

53. 532 U.S. at 12 n.4; see also FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01).

54. See FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01) (observing in this regard that Public Citizen and Ryan, "and their potential progeny, stand apart from" what the Supreme Court rejected in Klamath); see also Bangor Hydro-Elec. Co. v. United States Dep't of the Interior, No. 94-0173-B, slip op. at 5 (D. Me. Apr. 18, 1995) (presaging Klamath in holding that intra-agency threshold was not satisfied in case where party sought governmental benefit at expense of others' interests, and where agency "did not 'call upon' the [Penobscot] Nation to 'assist in internal decision-making'"; instead, "the Nation 'approached the government with their own interest in mind'" (quoting County of Madison v. United States Dep't of Justice, 641 F.2d 1036, 1042 (1st Cir. 1981))).

55. 180 F. Supp. 2d 1184 (D. Colo. 2001).

56. See id. at 1191.

57. See id.; see also Flathead Joint Bd. of Control v. United States Dep't of Interior, 309 F. Supp. 1217, 1223-24 (D. Mont. 2004) (limiting discussion of Klamath's threshold test to its first component and then confusingly ordering disclosure, apparently based on mistaken understanding of waiver as result of prior disclosure) (appeal pending).

58. 237 F. Supp. 2d 17 (D.D.C. 2002).

59. See id. at 25-27.

60. See id. at 27 (citing Klamath, 532 U.S. at 10-11).

61. Id. (quoting Klamath, 532 U.S. at 14).

62. Id.

63. See Klamath, 532 U.S. at 12 ("[T]he dispositive point is that the apparent object of the Tribe's communications is a decision by an agency of the Government to support a claim by the Tribe that is necessarily adverse to the interests of competitors."); see also FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01) (explaining both content and contours of Klamath test).

64. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975); see also Attorney General's Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001) [hereinafter Attorney General Ashcroft's FOIA Memorandum], reprinted in FOIA Post (posted 10/15/01) (emphasizing importance of deliberative process privilege in protecting decisionmakers' ability to receive "confidential advice and counsel").

65. See, e.g., Russell v. Dep't of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980); Jordan v. United States Dep't of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978) (en banc); Heggestad v. United States Dep't of Justice, 182 F. Supp. 2d 1, 12 (D.D.C. 2000) (protecting memoranda containing recommendations based on perjured testimony, finding that they "have no probative value to the public since they are based on misrepresentations"); AFGE v. HHS, 63 F. Supp. 2d 104, 108 (D. Mass. 1999) (holding that release of predecisional documents "could cause harm by providing the public with erroneous information"), aff'd, No. 99-2208, 2000 U.S. App. LEXIS 10993, at *3 (1st Cir. May 18, 2000). But see ITT World Communications, Inc. v. FCC, 699 F.2d 1219, 1237-38 (D.C. Cir. 1983) (dictum) (suggesting that otherwise exempt predecisional material "may" be ordered released so as to explain actual agency positions), rev'd on other grounds, 466 U.S. 463 (1984).

66. Sears, 421 U.S. at 150; see also Missouri ex rel. Shorr v. United States Army Corps of Eng'rs, 147 F.3d 708, 710 (8th Cir. 1998) ("The purpose of the deliberative process privilege is to allow agencies freely to explore alternative avenues of action and to engage in internal debates without fear of public scrutiny.").

67. See, e.g., Nat'l Wildlife Fed'n v. United States Forest Serv., 861 F.2d 1114, 1119 (9th Cir. 1988) ("[T]he ultimate objective of exemption 5 is to safeguard the deliberative process of agencies, not the paperwork generated in the course of that process."); Schell v. HHS, 843 F.2d 933, 940 (6th Cir. 1988) ("Because Exemption 5 is concerned with protecting the deliberative process itself, courts now focus less on the material sought and more on the effect of the material's release."); Dudman Communications Corp. v. Dep't of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987) ("Congress enacted Exemption 5 to protect the executive's deliberative processes -- not to protect specific materials."); Greenberg v. United States Dep't of Treasury, 10 F. Supp. 2d 3, 16 n.19 (D.D.C. 1998) (concluding that Exemption 5 "is not limited to preventing embarrassment or 'chilling' of the individual authors of deliberative documents" but is designed to prevent chilling of agency deliberations); Chem. Mfrs. Ass'n v. Consumer Prod. Safety Comm'n, 600 F. Supp. 114, 117 (D.D.C. 1984) (finding that ongoing regulatory process would be subject to "delay and disrupt[ion]" if preliminary analyses were prematurely disclosed). But see Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., No. 6:02-CV-126-ORL, 2003 WL 21146674, at *16 (M.D. Fla. May 13, 2003) (concluding inexplicably that in multi-level decisional process deliberative process privilege applies only where there is evidence that final decisionmaker has personally reviewed documents in question) (appeal pending); cf. Bangor Hydro-Elec. Co. v. United States Dep't of the Interior, No. 94-0173-B, slip op. at 6 (D. Me. Apr. 18, 1995) (holding deliberative process privilege inapplicable when by regulation entire decisionmaking process is open to all interested parties) (alternative holding).

68. Wolfe v. HHS, 839 F.2d 768, 775 (D.C. Cir. 1988) (en banc).

69. See id. at 776; see also Missouri, 147 F.3d at 710-11 (protecting intra-agency memorandum commenting on draft environmental impact statement and finding that "[a]lthough [the National Environmental Policy Act] contemplates public participation . . . NEPA's statutory language specifically indicates that disclosure to the public is to be in accord with FOIA, which includes Exemption 5"); Nat'l Wildlife, 861 F.2d at 1120-21 (draft forest plans and preliminary draft environmental impact statements protected); Chem. Mfrs., 600 F. Supp. at 118 (preliminary scientific data generated in connection with study of chemical protected).

70. See, e.g., Fed. Open Mkt. Comm. v. Merrill, 443 U.S. 340, 360 (1979); May v. Dep't of the Air Force, 777 F.2d 1012, 1014-15 (5th Cir. 1985); Cuccaro v. Sec'y of Labor, 770 F.2d 355, 357 (3d Cir. 1985); Judicial Watch of Fla., Inc. v. United States Dep't of Justice, 102 F. Supp. 2d 6, 16 (D.D.C. 2000) (rejecting specious assertion that deliberative process privilege "expires" after deliberations have ended and relevant decision has been made); see also FOIA Update, Vol. XVI, No. 3, at 5 (dispelling "common misconception" about Exemption 5 on this point).

71. See Sears, 421 U.S. at 151 n.18 (extending protection to records that are part of decisionmaking process even where process does not produce actual decision by agency); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 13 (D.D.C. 1995) (holding that to release deliberative documents because no final decision was issued would be "exalting semantics over substance"), aff'd on other grounds, 76 F.3d 1232 (D.C. Cir. 1996).

72. See, e.g., AGS Computers, Inc. v. United States Dep't of Treasury, No. 92-2714, slip op. at 13 (D.N.J. Sept. 16, 1993) (holding that predecisional character is not lost through passage of time); Founding Church of Scientology v. Levi, 1 Gov't Disclosure Serv. (P-H) ¶ 80,155, at 80,374 (D.D.C. Aug. 12, 1980) ("There is nothing in the language of the provision to suggest that passage of time without more derogates from the exempt status of the deliberative material.").

73. See Mapother v. Dep't of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993) ("The deliberative process privilege protects materials that are both predecisional and deliberative." (citing Petroleum Info. Corp. v. United States Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992))).

74. Jordan, 591 F.2d at 774.

75. Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).

76. See Coastal States, 617 F.2d at 866.

77. Id. at 868; see also Providence Journal Co. v. United States Dep't of the Army, 981 F.2d 552, 559 (1st Cir. 1992) (protecting IG's recommendations even though decisionmakers were not obligated to follow them); Formaldehyde Inst. v. HHS, 889 F.2d 1118, 1123 (D.C. Cir. 1989) (protecting recommendations on suitability of article for publication, though decision on "whether and where" to publish article had not yet been made); Greenberg, 10 F. Supp. 2d at 17 (stating that "an evaluation of the legal status" of a case would be protected, but an "instruction from a senior to a junior official as to what legal action should be taken -- a final decision . . . does not merit Exemption 5 protection"); Horsehead Indus. v. EPA, No. 94-1299, slip op. at 14 (D.D.C. Oct. 1, 1996) ("In determining whether material is predecisional in nature, courts must look to see what role the material played in the decisionmaking process . . . . A statement of an opinion by an agency official or preliminary findings reported by a public affairs official do not necessarily constitute a statement of EPA policy or final opinion that has the force of law."); Knowles v. Thornburgh, No. 90-1294, slip op. at 5-6 (D.D.C. Mar. 11, 1992) (holding information generated during process preceding President's ultimate decision on application for clemency was predecisional); cf. Sw. Ctr. for Biological Diversity v. USDA, 170 F. Supp. 2d 931, 940 (D. Ariz. 2000) (rejecting as "tenuous" defendant's position that releasing information would "result in humans disturbing nesting goshawks," which in turn would alter agency's deliberative process by affecting results of scientific study), aff'd on other grounds, 314 F.3d 1060 (9th Cir. 2002); Animal Legal Def. Fund, Inc. v. Dep't of the Air Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999) (rejecting privilege claim because agency "utterly failed to specify the role played by each withheld document" in policy-formulation process).

78. Sears, 421 U.S. at 151 n.18; see also Schell, 843 F.2d at 941 ("When specific advice is provided, . . . it is no less predecisional because it is accepted or rejected in silence, or perhaps simply incorporated into the thinking of superiors for future use."); Hamilton Sec. Group, Inc. v. HUD, 106 F. Supp. 2d 23, 30 (D.D.C. 2000) (protecting a draft audit report that was never reviewed by an agency decisionmaker; holding that "only those materials that are reviewed and approved by the District Inspector General represent the agency's final position"), aff'd, No. 00-5331, 2001 WL 238162, at *1 (D.C. Cir. Feb. 23, 2001) (per curiam); Greenberg, 10 F. Supp. 2d at 16 (rejecting argument that documents were not deliberative because not actually relied upon, observing that "[i]f the author had known that the notes discussing the proposed questions and issues would be subject to FOIA disclosure if not actually used, the author likely would have been more cautious in what he or she recommended"); Brooks v. IRS, No. CV-F-96-6284, 1997 U.S. Dist LEXIS 21075, at **23-24 (E.D. Cal. Nov. 17, 1997) ("governmental privilege does not hinge on whether or not the District Counsel relied on or accorded any weight to the information at issue in rendering its final decision"); Perdue Farms, Inc. v. NLRB, No. 2:96-CV-27-BO(1), 1997 U.S. Dist. LEXIS 14579, at *17 (E.D.N.C. Aug. 5, 1997) ("Although some [deliberative] processes do not ripen into agency decisions, this does not preclude application of the deliberative process privilege."); Hunt v. United States Marine Corp., 935 F. Supp. 46, 51 (D.D.C. 1996) (agency need not point specifically to final decision made); Chem. Mfrs., 600 F. Supp. at 118 ("[t]here should be considerable deference to the [agency's] judgment as to what constitutes . . . 'part of the agency give-and-take -- of the deliberative process -- by which the decision itself is made'" (quoting Vaughn, 523 F.2d at 1144)); Pfeiffer v. CIA, 721 F. Supp. 337, 340 (D.D.C. 1989) (court "must give considerable deference to the agency's explanation of its decisional process, due to agency's expertise"). But see Carter v. United States Dep't of Commerce, 186 F. Supp. 2d 1147, 1153-54 (D. Or. 2001) (holding that adjusted census data not examined by decisionmaker "cannot be said to have contributed" to decisionmaking process; and rejecting argument that data were nevertheless predecisional because agency was actively considering using them in future), aff'd, 307 F.3d 1084 (9th Cir. 2002); cf. Maricopa Audubon Soc'y v. United States Forest Serv., 108 F.3d 1089, 1094 (9th Cir. 1997) (oddly declaring Supreme Court pronouncement to be merely "cautionary dictum").

79. See, e.g., Casad v. HHS, 301 F.3d 1247, 1252 (10th Cir. 2002) (holding that deliberative process privilege protects redacted portions of "summary statements" created prior to NIH's research grant funding decisions); Tarullo v. DOD, 170 F. Supp. 2d 271, 277 (D. Conn. 2001) (rejecting an argument that a document was not predecisional, instead finding that it was merely "a description of how the agency performed under its then-existing policy," and concluding that although the memorandum "contains some objective description of the facts providing a basis for . . . opinions, it consists primarily of specific subjective recommendations about future agency conduct and policy"); Judicial Watch, Inc. v. Reno, No. 00-0723, slip op. at 6-7 (D.D.C. Mar. 30, 2001) (protecting communications regarding "continuing and follow-up issues" resulting from decision to repatriate Cuban emigré Elian Gonzalez); Felsen v. HHS, No. 95-975, slip op. at 90 (D. Md. Sept. 30, 1998) ("agency need not identify any specific decision, but merely must establish 'what deliberative process is involved, and the role played by the documents in issue in the course of that process'" (quoting Coastal States, 617 F.2d at 868)); Dayton Newspapers, Inc. v. United States Dep't of the Navy, No. C-3-95-328, slip op. at 55-56 (S.D. Ohio Sept. 12, 1996) (protecting communications that were postdecisional with respect to a specific agency decision but predecisional "in relation to their impact on broader policy decisions"); Md. Coalition for Integrated Educ. v. United States Dep't of Educ., No. 89-2851, slip op. at 6 (D.D.C. July 20, 1992) (finding material prepared during compliance review that goes beyond critique of reviewed program to discuss broader agency policy to be part of deliberative process), appeal dismissed voluntarily, No. 92-5346 (D.C. Cir. Dec. 13, 1993); Wash. Post Co. v. DOD, No. 84-2949, 1987 U.S. Dist LEXIS 16108, at *29 (D.D.C. Feb. 25, 1987) (holding that document generated in continuing process of examining agency policy falls within deliberative process); Ashley v. United States Dep't of Labor, 589 F. Supp. 901, 908-09 (D.D.C. 1983) (holding that documents containing agency self-evaluations need not be shown to be part of clear process leading up to "assured" final decision so long as agency can demonstrate that documents were part of some deliberative process). Compare Parke, Davis & Co. v. Califano, 623 F.2d 1, 6 (6th Cir. 1980) (holding that document must be "essential element" of deliberative process), with Schell, 843 F.2d at 939-41 (appearing to reject, at least implicitly, "essential element" test), and AFGE, 63 F. Supp. at 108-09 (rejecting proposed "essential functions" test). But see Maricopa, 108 F.3d at 1094 (dictum) ("agency must identify a specific decision where document is pre-decisional"); Senate of P.R. v. United States Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (suggesting agency must specify final "decisions to which the advice or recommendations . . . contributed"); Cook v. Watt, 597 F. Supp. 545, 550-52 (D. Alaska 1983) (confusingly refusing to extend privilege to documents originating in deliberative process merely because process held in abeyance and no decision reached).

80. 926 F.2d 1192, 1196 (D.C. Cir. 1991); see also Taylor v. Dep't of the Treasury, No. C90-1928, slip op. at 3-4 (N.D. Cal. Jan. 20, 1991) (stating that deliberative process privilege covers "communications leading to the actual enactment of a law, not merely communications preceding a decision to commence the process of amending a law").

81. See Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 188 (1975); Bureau of Nat'l Affairs, Inc. v. United States Dep't of Justice, 742 F.2d 1484, 1497 (D.C. Cir. 1984); Defenders of Wildlife v. United States Dep't of the Interior, No. 03-1192, 2004 WL 842374, at **11-12 (D.D.C. Apr. 13, 2004) (protecting documents relating to ethics investigation that were prepared by Department of the Interior and given to Office of Government Ethics, which had final authority over investigation). Compare Blazar v. OMB, No. 92-2719, slip op. at 14 (D.D.C. Apr. 15, 1994) (finding recommendations made from OMB to the President to be predecisional), with Am. Soc'y of Pension Actuaries v. IRS, 746 F. Supp. 188, 192 (D.D.C. 1990) (ordering disclosure after finding that IRS's budget assumptions and calculations were "relied upon by government" in making final estimate for President's budget).

82. Judicial Watch, 102 F. Supp. 2d at 14 (protecting notes taken by Attorney General which she did not share with others).

83. See Enviro Tech Int'l, Inc. v. EPA, No. 02 C 4650, slip op. at 13-14 (N.D. Ill. Mar. 11, 2003) (protecting documents which contained EPA recommendations on workplace exposure limits to n-Propyl Bromide, despite fact that EPA lacks statutory authority to regulate such exposure limits); cf. Weissman v. CIA, 565 F.2d 692, 695-96 (D.C. Cir. 1977) (holding that CIA cannot use Exemption 7 to protect documents generated in course of law enforcement activity for which it has no statutory authorization).

84. See, e.g., Taxation With Representation Fund v. IRS, 646 F.2d 666, 677-78 (D.C. Cir. 1981).

85. See, e.g., Brinton v. Dep't of State, 636 F.2d 600, 605 (D.C. Cir. 1980); Nissei Sangyo Am., Ltd. v. IRS, No. 95-1019, 1997 U.S. Dist. LEXIS 22473, at **23-24 (D.D.C. May 8, 1997) (magistrate's recommendation) (declining to apply deliberative process privilege to results of tax audit in which agency was merely "applying published tax laws to factual information regarding a taxpayer"), adopted (D.D.C. Jan. 28, 1998).

86. See, e.g., Sears, 421 U.S. at 153-54; Judicial Watch, Inc. v. HHS, 27 F. Supp. 2d 240, 245 (D.D.C. 1998) ("deliberative process privilege does not protect documents that merely state or explain agency decisions"); cf. Horowitz v. Peace Corps, No. 00-0848, slip op. at 9-10 (D.D.C. Oct. 12, 2001) (ordering parties to submit additional evidence of whether final decision had been made at time disputed memorandum was written). But cf. Murphy v. TVA, 571 F. Supp. 502, 505 (D.D.C. 1983) (protecting two "interim" decisions, which agency retains option of changing).

87. Sears, 421 U.S. at 152.

88. N. Dartmouth Properties, Inc. v. HUD, 984 F. Supp. 65, 69 (D. Mass. 1997) (noting that author may not have known that final decision had been reached at time he composed message because "[n]o one would waste time preparing an e-mail message in an attempt to persuade someone to reach a conclusion if he knew that the conclusion he was advocating had already been reached").

89. Sterling Drug, Inc. v. FTC, 450 F.2d 698, 708 (D.C. Cir. 1971).

90. Coastal States, 617 F.2d at 869; see also Schlefer v. United States, 702 F.2d 233, 243-44 (D.C. Cir. 1983).

91. Coastal States, 617 F.2d at 868; see also Evans v. OPM, 276 F. Supp. 2d 34, 40 (D.D.C. 2003) (holding that deliberative process privilege does not protect memorandum issued by OPM's Office of General Counsel that is "clear statement" of OPM's position on adoption of governmentwide hiring policy); Hansen v. United States Dep't of the Air Force, 817 F. Supp. 123, 124-25 (D.D.C. 1992) (ordering disclosure of draft document used by agency as final product); see also Carlton v. Dep't of Interior, No. 97-2105, slip op. at 15 n.7 (D.D.C. Sept. 3, 1998) (observing that court "need not find that the agency is withholding secret law . . . to conclude that the government has nevertheless failed to justify its withholdings under FOIA Exemption 5").

92. See Sears, 421 U.S. at 151 (holding postdecisional documents subject to deliberative process privilege "as long as prior communications and the ingredients of the decisionmaking process are not disclosed"); see also Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 257 (D.C. Cir. 1977) ("It would exalt form over substance to exempt documents in which staff recommend certain action or offer their opinions on given issues but require disclosure of documents which only 'report' what those recommendations and opinions are."); Blazar, No. 92-2719, slip op. at 15 (D.D.C. Apr. 15, 1994) (deciding that President's indication of which alternative he adopted does not waive privilege for unadopted recommendations); cf. Steinberg v. United States Dep't of Justice, No. 91-2740, 1993 WL 385820, at *3 (D.D.C. Sept. 13, 1993) (holding that protection of exemption is not lost where decision to conduct particular type of investigation was merely intermediate step in larger process).

93. See Schlefer, 702 F.2d at 237. See generally ITT, 699 F.2d at 1235; Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258-59 (D.C. Cir. 1982); Tax Analysts v. IRS, No. 94-923, 1996 U.S. Dist. LEXIS 3259, at **4-8 (D.D.C. Mar. 15, 1996), aff'd, 117 F.3d 607 (D.C. Cir. 1997).

94. 5 U.S.C. § 552(a)(2)(A) (2000); see Fed. Open Mkt. Comm., 443 U.S. at 360-61 n.23.

95. Skelton v. United States Postal Serv., 678 F.2d 35, 41 (5th Cir. 1982); cf. Rockwell Int'l Corp. v. United States Dep't of Justice, 235 F.3d 598, 602-03 (D.C. Cir. 2001) (concluding that a report was not a final opinion because it contained "conclusions of a voluntarily undertaken internal agency investigation, not a conclusion about agency action (or inaction) in an adversarial dispute with another party"); Common Cause v. IRS, 646 F.2d 656, 659-60 (D.C. Cir. 1981) (rejecting a claim that a document was a final opinion, because the agency's action involved "the voluntary suggestion, evaluation, and rejection of a proposed policy by an agency, not the agency's final, unappealable decision not to pursue a judicial remedy in an adversarial dispute"). But see Afshar v. Dep't of State, 702 F.2d 1125, 1142-43 (D.C. Cir. 1983) (holding that even single recommendation of no precedential value or applicability to rights of individual members of public loses protection if specifically adopted as basis for final decision).

96. Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997); Evans, 276 F. Supp. 2d at 39 (finding documents at issue "indistinguishable" from records at issue in Tax Analysts for purposes of Exemption 5); cf. Tax Analysts v. IRS, 97 F. Supp. 2d 13, 17 (D.D.C. 2000) (protecting IRS Legal Memoranda, and distinguishing them from FSAs, on the basis that "[w]hereas [Legal Memoranda] flow 'upward' from staffers to reviewers, [FSAs] flow 'outward' from the Office of Chief Counsel to personnel in the field"); Ginsberg v. IRS, No. 96-2265-CIV-T-26E, 1997 WL 882913, at *4 & nn.4, 5 (M.D. Fla. Dec. 23, 1997) (magistrate's recommendation) ("Although the opinions of District Counsel may not represent final opinions or policy statements of the IRS . . . [they were] relied upon and specifically referenced" by the IRS agent in the conduct of the examination.), adopted (M.D. Fla. Jan. 27, 1998), appeal dismissed, No. 98-2384 (11th Cir. June 5, 1998).

97. Tax Analysts, 117 F.3d at 617.

98. See Pfeiffer, 721 F. Supp. at 340 ("What matters is that the person who issues the document has authority to speak finally and officially for the agency.").

99. Grumman, 421 U.S. at 184-85; see also A. Michael's Piano, Inc. v. FTC, 18 F.3d 138, 147 (2d Cir. 1994) (finding staff attorney's recommendation predecisional as she had no authority to close investigation); Tax Analysts v. IRS, 152 F. Supp. 2d 1, 24-25 (D.D.C. 2001) (protecting memoranda "written by a component office without decisionmaking authority to a different component office" that had such authority), aff'd in part, rev'd in part on other grounds & remanded, 294 F.3d 71 (D.C. Cir. 2002); Tax Analysts, 97 F. Supp. 2d at 17 ("Because the drafters lack ultimate [decisionmaking] authority, their views are necessarily predecisional."); Badhwar v. United States Dep't of the Air Force, 615 F. Supp. 698, 702-03 (D.D.C. 1985) (concluding that Air Force safety board does not make decisions, only recommendations), aff'd in part & remanded in part on other grounds, 829 F.2d 182 (D.C. Cir. 1987); Am. Postal Workers Union v. Office of Special Counsel, No. 85-3691, slip op. at 6 (D.D.C. June 24, 1986) (protecting prosecutorial recommendations to special counsel which were not binding or dispositive). But see Tax Analysts, 117 F.3d at 617 (finding chief counsel's "nonbinding" FSAs to field offices to be not predecisional because they "constitute agency law").

100. Schlefer, 702 F.2d at 238; see also Nat'l Wildlife, 861 F.2d at 1123; cf. Goldstein v. Office of Indep. Counsel, No. 87-2028, 1999 WL 570862, at *7 (D.D.C. July 29, 1999) (protecting recommendations on possible criminal investigations from head of Department of Justice's Criminal Division to Director of FBI).

101. Schlefer, 702 F.2d at 238, 241; see, e.g., Badran v. United States Dep't of Justice, 652 F. Supp. 1437, 1439 (N.D. Ill. 1987) (concluding that INS decision on plaintiff's bond was final, even though it was reviewable by immigration judge, because "immigration judges are independent from the INS, and no review of plaintiff's bond occurred within the INS").

102. See, e.g., Nat'l Wildlife, 861 F.2d at 1122-23 (finding that headquarters' comments on regional plans were opinions and recommendations); Heggestad, 182 F. Supp. 2d at 10 (finding that top official in Department of Justice's Tax Division actually had made decision to prosecute despite fact that authority to make such decisions had been delegated to chief of Tax Division's Criminal Section); Nat'l Ass'n of Criminal Def. Lawyers v. United States Dep't of Justice, No. 97-372, slip op. at 10-13 (D.D.C. July 22, 1998) (deciding that predecisional character of draft IG report is not affected by fact that FBI took adverse personnel action against investigated employees after reviewing it); Jowett, Inc. v. Dep't of the Navy, 729 F. Supp. 871, 874 (D.D.C. 1989) (protecting audit reports prepared by entity lacking final decisionmaking authority).

103. See, e.g., City of Va. Beach v. United States Dep't of Commerce, 995 F.2d 1247, 1254 (4th Cir. 1993) (protecting documents discussing past decision insofar as it influences future decision); Access Reports, 926 F.2d at 1196 (finding that staff attorney memorandum on how proposed FOIA amendments would affect future cases not postdecisional working law but opinion on how to handle pending legislative process); Hamrick v. Dep't of the Navy, No. 90-283, 1992 WL 739887, at *2 (D.D.C. Aug. 28, 1992) ("[D]ocuments prepared after [agency's] decision to dual source the F404 engines are not 'formal agency policy,' but, recommendations for future decisions relating to F404 procurement based upon lessons learned from the dual sourcing decisionmaking process."), appeal dismissed voluntarily, No. 92-5376 (D.C. Cir. Aug. 4, 1995); Dow, Lohnes & Albertson v. Presidential Comm'n on Broad. to Cuba, 624 F. Supp. 572, 574-75 (D.D.C. 1984) (holding records predecisional because, although documents discussed implementation of previous decision, issues discussed were "not mere details to be worked out but rather matters requiring further study and generating debate which culminated in the making of new policy"); cf. Wilkinson v. Chao, 292 F. Supp. 2d 288, 295 (D.N.H. 2003) (holding that agency's "final" decision was its decision not to give plaintiff overtime pay, rather than auditor's "determination" on appropriateness of decision, and that therefore documents generated after former but before latter were postdecisional).

104. See, e.g., AFGE v. United States Dep't of Commerce, 907 F.2d 203, 208 (D.C. Cir. 1990); Bureau of Nat'l Affairs, 742 F.2d at 1497.

105. See Bureau of Nat'l Affairs, 742 F.2d at 1497.

106. Dow, Lohnes & Albertson v. USIA, No. 82-2569, slip op. at 15-16 (D.D.C. June 5, 1984), vacated in part, No. 84-5852 (D.C. Cir. Apr. 17, 1985); see also Badhwar v. United States Dep't of Justice, 622 F. Supp. 1364, 1372 (D.D.C. 1985) ("There is nothing predecisional about a recitation of corrective action already taken.").

107. Coastal States, 617 F.2d at 868; see also Nadler v. United States Dep't of Justice, 955 F.2d 1479, 1491 (11th Cir. 1992) ("[A] recommendation to a supervisor on how to proceed is predecisional by nature."); Judicial Watch, No. 00-0723, slip op. at 8 (D.D.C. Mar. 30, 2001) (protecting "communications from subordinates to superiors" in Elian Gonzalez case); Students Against Genocide v. Dep't of State, No. 96-667, 1999 WL 699074, at *12 (D.D.C. Aug. 24, 1998) (magistrate's recommendation) (holding field notes of official analyzing factual information and making recommendations on U.S. foreign policy exempt), adopted (D.D.C. Sept. 29, 1998), aff'd in part & remanded in part on other grounds, 257 F.3d 828, 841 (D.C. Cir. 2001); Hayes v. Dep't of Labor, No. 96-1149-P-M, 1998 U.S. Dist. LEXIS 14120, at *18 (S.D. Ala. June 18, 1998) (magistrate's recommendation) ("[A] recommendation from a lower-level employee to a higher-level manager qualifies as a predecisional, deliberative document for purposes of exemption 5."), adopted (S.D. Ala. Aug. 10, 1998); Burke v. DEA, No. 96-1739, slip op. at 8 (D.D.C. Mar. 31, 1998) (protecting correspondence from postal inspector to Assistant United States Attorney who he was assisting in prosecution), appeal dismissed, No. 98-5113 (D.C. Cir. Mar. 31, 2000); Ginsberg, 1997 WL 882913, at **4-5 (holding protectible IRS agent's "request for technical assistance" and supervisor's addendum revealing "areas of concern of the two authors" during conduct of examination).

108. Brinton, 636 F.2d at 605; see also AFGE v. United States Dep't of Commerce, 632 F. Supp. 1272, 1276 (D.D.C. 1986); Ashley, 589 F. Supp. at 908; cf. Shumaker, Loop & Kendrick v. Commodity Futures Trading Comm'n, No. 97-7139, slip op. at 14 (N.D. Ohio Nov. 27, 1997) (protecting an advisory document where there was "no indication that the author of the document had authority to establish agency policy").

109. See Nat'l Wildlife, 861 F.2d at 1123 (finding comments from headquarters to regional office, under circumstances presented, to be advisory rather than directory); N. Dartmouth Properties, 984 F. Supp. at 70 (dictum) ("Conversation is, after all, a two-way street. A superior would be willing to engage a subordinate in candid debate only if he knows that his opinions will also be protected by the 'deliberative process' privilege.").

110. See Judicial Watch, 102 F. Supp. 2d at 16 (protecting Attorney General's handwritten predecisional notes from meeting on campaign finance task force investigation); cf. Conoco Inc. v. United States Dep't of Justice, 687 F.2d 724, 727 (3d Cir. 1982) (rejecting the contention that only records "'circulated within the agency'" may be withheld under Exemption 5).

111. Formaldehyde, 889 F.2d at 1122 (quoting CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1161 (D.C. Cir. 1987)); see also Judicial Watch, Inc. v. Reno, 154 F. Supp. 2d 17, 18 (D.D.C. 2001) ("It is not enough to say that a memorandum 'expresses the author's views' on a matter [because the] role played by the document in the course of the deliberative process must also be established.").

112. Sears, 421 U.S. at 161; see, e.g., Afshar, 702 F.2d at 1140 (finding recommendation expressly adopted in postdecisional memorandum); Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967, 973 (7th Cir. 1977) (ordering disclosure of an "underlying memorandum" that was "expressly relied on in a final agency dispositional document"); Shumaker, No. 97-7139, slip op. at 14 (ordering disclosure of advisory document written by agency general counsel and "thereafter adopted as the official position of the agency"); Bhd. of Locomotive Eng'rs v. Surface Transp. Bd., No. 96-1153, 1997 WL 446261, at **4-5 (D.D.C. July 31, 1997) (finding that staff recommendation was adopted in both written decision and commission vote); Burkins v. United States, 865 F. Supp. 1480, 1501 (D. Colo. 1994) (holding that final report's statement that findings are same as those of underlying memorandum constituted adoption of that document); Atkin v. EEOC, No. 91-2508, slip op. at 23-24 (D.N.J. July 14, 1993) (holding recommendation to close file not protectible where it was contained in agency's actual decision to close file); cf. Tax Analysts, 117 F.3d at 617 (finding that documents "routinely used" and "relied upon by agency personnel," in a particular factual setting, were "statements of the agency's legal position" and accordingly not protectible).

113. Coastal States, 617 F.2d at 866; see Pentagon Fed. Credit Union v. Nat'l Credit Union Admin., No. 95-1475, slip op. at 5-8 (E.D. Va. June 7, 1996) (finding that board of directors' action "embracing" recommendations in "substantially same language" made documents postdecisional); Pension Actuaries, 746 F. Supp. at 192 (ordering disclosure simply on the basis that the IRS's budget assumptions and calculations were "relied upon by the government" in making its final estimate for the President's budget); cf. Skelton, 678 F.2d at 39 n.5 (declining to express opinion on whether reference must be to specific portion of document for express incorporation of that portion to occur).

114. See, e.g., Rockwell Int'l v. United States Dep't of Justice, No. 98-761, slip op. at 8-9, 15 (D.D.C. Mar. 24, 1999) (finding no adoption where public memorandum merely referred to underlying documents as evidence supporting its conclusions and observing that "the memorandum is itself a discussion and statement of reasons [that] stands alone, independent of its supporting documents"), aff'd on other grounds, 235 F.3d 598 (D.C. Cir. 2001); N. Dartmouth Properties, 984 F. Supp. at 69-70 (holding that fact that agency ultimately reached conclusion advocated by author of withheld document did not constitute adoption of author's reasoning); AFGE v. Dep't of the Army, 441 F. Supp. 1308, 1311 (D.D.C. 1977) (holding that decisionmaker's letter setting forth reasons for decision, not underlying report, constituted final agency decision).

115. See Am. Soc'y of Pension Actuaries, 746 F. Supp. at 191; Martin v. MSPB, 3 Gov't Disclosure Serv. (P-H) ¶ 82,416, at 83,044 (D.D.C. Sept. 14, 1982). But see Blazar, No. 92-2719, slip op. at 14-15 (D.D.C. Apr. 15, 1994) (holding that no incorporation occurred when final decisionmaker approved one of several choices but did not indicate intention to adopt remainder of document in question); Am. Postal Workers Union, No. 85-3691, slip op. at 7-9 (D.D.C. June 24, 1986) (declining to infer incorporation).

116. See Grumman, 421 U.S. at 184-85; Afshar, 702 F.2d at 1143 n.22; see also Casad, 301 F.3d at 1252 (protecting documents that were "important consideration" for final decisionmaker but were not "dispositive"); Trans Union LLC v. FTC, No. 00-2384, 2001 U.S. Dist. LEXIS 4559, at *15 (D.D.C. Apr. 9, 2001) (following Grumman and rejecting argument that burden is on agency to prove that documents were not adopted as basis for policy); Perdue Farms, 1997 U.S. Dist. LEXIS 14579, at **20-23 (holding that fact that document was created only two days before issuance of final decision was insufficient to give rise to inference of adoption); Greyson v. McKenna & Cuneo, 879 F. Supp. 1065, 1069 (D. Colo. 1995) (deciding that use of phrase "the evidence shows" not enough for inference of adoption); Afr. Fund v. Mosbacher, No. 92-289, 1993 WL 183736, at *7 (S.D.N.Y. May 26, 1993) (concluding that record did not suggest either "adoption" or "final opinion" of agency); Wiley, Rein & Fielding v. United States Dep't of Commerce, No. 90-1754, slip op. at 6 (D.D.C. Nov. 27, 1990) ("Denying protection to a document simply because the document expresses the same conclusion reached by the ultimate agency decision-maker would eviscerate Exemption 5."); Ahearn v. United States Army Materials & Mechs. Research Ctr., 580 F. Supp. 1405, 1407 (D. Mass. 1984) (holding that fact that general officer reached same conclusion as report of investigation did not constitute adoption of report's reasoning).

117. See, e.g., EPA v. Mink, 410 U.S. 73, 91 (1973) (refusing to extend deliberative process privilege protection to "factual material otherwise available on discovery merely [on the basis that] it was placed in a memorandum with matters of law, policy, or opinion"); Coastal States, 617 F.2d at 867 (citing Mink, 410 U.S. at 93); Bilbrey v. United States Dep't of the Air Force, No. 00-0539, slip op. at 10-11 (W.D. Mo. Jan. 30, 2001) (holding privilege inapplicable to factual statements underlying predecisional recommendations), aff'd, No. 01-1789, 2001 WL 1222471, at *1 (8th Cir. Oct. 16, 2001) (unpublished table decision); Sw. Ctr. for Biological Diversity, 170 F. Supp. 2d at 941 (concluding that release of "raw research data" would not expose agency's deliberative process