FOIA Update: FOIA Counselor: Attorney Work-Product Protection

FOIA Counselor

The attorney work-product privilege is one of the three primary privileges incorporated into Exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552(b)(5). It protects materials prepared by an attorney or others in anticipation of litigation, preserving the adversarial trial process by shielding materials which would disclose the attorney's theory of the case or trial strategy. See, e.g., Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980).

The Supreme Court first recognized this privilege more than 30 years ago in Hickman v. Taylor, 329 U.S. 495, 510-11 (1947), holding that an attorney must "work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel" and be free to "assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference." Later incorporated into Rule 26 of the Federal Rules of Civil Procedure, the attorney work-product privilege has been specifically held to come within the scope of Exemption 5 and to protect the written product of government attorneys generated in litigation and prelitigation counseling. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975). See also 5 U.S.C. § 552a(d)(5) (counterpart exemption in Privacy Act).

On June 6, the Supreme Court decided FTC v. Grolier, Inc., 103 S. Ct. 2209 (1983), a FOIA case in which it squarely held that materials qualifying as attorney work-product are entitled to perpetual Exemption 5 protection. (See this issue of FOIA Update at 1-2.) In the wake of this significant decision, it is especially useful to focus on other aspects of the attorney work-product privilege, particularly as they have been addressed in cases under Exemption 5.

In order to qualify as attorney work-product, a document must be "prepared in anticipation of litigation." Fed.R.Civ.Pro. 26(b)(3). Specifically, this means that the privilege does not attach until "at the very least some articulable claim, likely to lead to litigation," has arisen. Coastal States Gas Corp. v. Department of Energy, supra, 617 F.2d at 865. See also Kent Corp. v. NLRB, 530 F.2d 612, 623 (5th Cir.) (although litigation never ensued, "the prospect of litigation [was] identifiable because of specific claims that [had] already arisen"), cert. denied, 429 U.S. 920 (1976).

Even materials drafted when the identity of an opposing party was not yet known, but where it was highly probable that litigation in a specific factual context would arise, have been held to have been "prepared in anticipation of litigation" and therefore withholdable under Exemption 5. See Anderson v. United States Parole Comm'n, 3 GDS ¶ 83,055 at 83,557 (D.D.C. 1983) (compilations of court cases referencing theories and defenses often used in cases filed against Commission); Automobile Importers of America, Inc. v. FTC, 3 GDS ¶ 82,488 at 83,226 (D.D.C. 1982) (memoranda setting forth agency options for enforcement program). But cf. Jordan v. United States Department of Justice, 591 F.2d 753, 775-76 (D.C. Cir. 1978) (en banc) (guidelines relating to the exercise of prosecutorial discretion held not prepared in anticipation of any litigation).

Also, it is well settled that nonattorneys may author documents constituting work-product, so long as they act under the general direction of attorneys. See, e.g., Exxon Corp. v. FTC, 466 F. Supp. 1088, 1099 (D.D.C. 1978), aff'd, 663 F.2d 120 (D.C. Cir. 1980) (report prepared by outside economic consultants relating to litigation strategy).

It should be remembered that the attorney work-product privilege is distinct from the other primary privileges recognized under Exemption 5, because the differences in protection can be substantial. Unlike the attorney-client privilege, for example, work-product protection is not limited to communications between attorney and client. And in contrast to the deliberative process privilege -- where factual information must be segregated from the deliberative material -- the work-product privilege affords far greater protection, because such factual material often reveals the attorney's tactical and strategic thinking regarding the litigation. See Mervin v. FTC, 591 F.2d 821, 826-27 (D.C. Cir. 1978) (facts "seldom can be separated from the attorney's thoughts"). See also, e.g., Dames & Moore v. United States Department of the Treasury, 544 F. Supp. 94, 98-99 (C.D. Cal. 1982) (even though facts may be on public record, organization and categorization of material is indicative of attorney's approach).

Once the elements of the attorney work-product privilege have been established, the issue of whether the privilege has been lost or waived through prior disclosure or misconduct sometimes arises. In the FOIA context, attorney work-product privilege protection has been held not to have been waived where records have been shared with a party possessing a common interest with the government. See Chilivis v. SEC, 673 F.2d 1205, 1211-12 (11th Cir. 1982) (disclosure to another federal agency); Indian Law Resource Center v. Department of the Interior, 477 F. Supp. 144, 148 (D.D.C. 1979) (disclosure to entity acting as "confidential" agent of client). (For an extensive discussion of waiver through prior disclosure, see FOIA Update, Spring 1983, at 6.) However, an attorney's unprofessional or wrongful conduct may result in loss of the privilege. See, e.g., Moody v. IRS, 654 F.2d 795, 800 (D.C. Cir.), on remand, 527 F. Supp. 535, 537 (D.D.C. 1981), remanded, 682 F.2d 266, 268 (D.C. Cir. 1982).

One other problem area concerns documents which contain final opinions or recommendations that are eventually adopted by an agency. It has been held that once a document qualifies as work-product, it retains its privileged status even if it becomes the basis for a final agency decision. See, e.g., Iglesias v. CIA, 525 F. Supp. 547, 559 (D.D.C. 1981). However, where litigation is foreclosed as an option and the agency expressly adopts a legal memorandum in its final decision, the work-product privilege may be vitiated. See Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967, 974 (7th Cir. 1977). See also NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 155.

In sum, the attorney work-product privilege, as incorporated into Exemption 5, establishes a valuable basis for protecting records the disclosure of which would impair the functioning of the government's attorneys in a litigation or prelitigation setting. Especially now after the Supreme Court's broad decision in Grolier, its applicability to agency records should always be considered.

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