FOIA Update: OIP Guidance: The Attorney-Client Privilege

OIP Guidance

Although it initially may seem peculiar to think of federal agencies as "clients" seeking legal advice, it is certainly true that these entities -- no less so than individuals and corporations -- require confidential legal advice from their attorneys in order to function effectively. Taking note of this fundamental need, the courts have uniformly held that federal agencies may enter into privileged attorney-client relationships with their lawyers. See, e.g., Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980) (it is "clear that an agency can be a 'client' and agency lawyers can function as 'attorneys' within the . . . privilege"). See generally Note, The Applicability and Scope of the Attorney-Client Privilege in the Executive Branch of the Federal Government, 62 Boston U.L. Rev. 1003 (1982).

Exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552(b)(5), incorporates the attorney-client privilege among other civil discovery privileges. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975). Particularly now that the Supreme Court has held that the scope of Exemption 5 is coextensive with the scope of each of the civil discovery privileges it incorporates -- see United States v. Weber Aircraft Corp., 104 S. Ct. 1488, 1492-94 (1984); FTC v. Grolier Inc., 462 U.S. 19, 26-28 (1983); see also FOIA Update, Fall 1984, at 6 -- agency FOIA personnel need to possess a precise understanding of the scope and contours of the attorney-client privilege as it has been applied in the civil discovery context.

The scope of the attorney-client privilege is in part broader and in part narrower than other major civil discovery privileges traditionally recognized as incorporated into Exemption 5. For instance, in contrast to the deliberative process privilege, the attorney-client privilege can protect factual information, when those facts are divulged by a client to his attorney. See, e.g., Brinton v. Department of State, 636 F.2d 600, 605-06 (D.C. Cir. 1980), cert. denied, 452 U.S. 905 (1981). Although there is often a significant overlap between the attorney-client and deliberative process privileges, the distinction between the two is that "the attorney-client privilege permits nondisclosure of an attorney's opinion or advice in order to protect the secrecy of the underlying facts, while the deliberative process privilege directly protects advice and opinions and does not permit the nondisclosure of underlying facts unless they would indirectly reveal the advice, opinions, and evaluations circulated . . . as part of [the] decisionmaking process." Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d 242, 254 n.28 (D.C. Cir. 1977). Similarly, the attorney-client privilege is even broader than the attorney work-product privilege in one respect, in that it protects all confidential communications between client and attorney, not merely those made in anticipation of litigation. See FOIA Update, Fall 1984, at 6; FOIA Update, Summer 1983, at 6.

The purpose of the attorney-client privilege is to protect from discovery in civil litigation those "confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice." Mead Data, 566 F.2d at 252. Therefore, the privilege "normally extends both to the substance of the client's communication as well as the attorney's advice in response thereto." Matter of Fischel, 557 F.2d 209, 211 (9th Cir. 1977) (citation omitted). Such confidential communications are shielded from disclosure in order to encourage full and frank discussion between the client and his legal advisor. Mead Data, 566 F.2d at 252. Indeed, as the Supreme Court has phrased it, "[t]he privilege recognizes 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." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Limitations on the attorney-client privilege have therefore necessarily been construed narrowly. See, e.g., Martin v. Lauer, 686 F.2d 24, 32 (D.C. Cir. 1982).

An ill-conceived line of FOIA cases emanating from the U.S. Court of Appeals for the District of Columbia Circuit has caused considerable confusion as to whether the attorney-client privilege protects an attorney-client communication where the specifics of the communication are confidential but the underlying subject matter is known to an outside third party. In Mead Data, the first of these cases, the D.C. Circuit held that communications between the Air Force and its legal counsel concerning negotiation offers made by and received from a litigation opponent were not protected by the attorney-client privilege because the substance of the offers was of course also known by the opponent. See 566 F.2d at 255.

In a forceful dissent to that decision, Circuit Court Judge Carl McGowan observed that in a great many cases attorney-client discussions concern the client's dealings or relationship with one or more third parties and that the "mere fact that those third parties are aware of the factual details of their interaction with the client cannot automatically defeat a claim of confidentiality asserted in connection with the client's recounting of that interaction to his attorney." Id. at 264. Taking issue with the Mead Data majority's reliance on the fact that the third party in that case had knowledge of some of the facts communicated by the agency to its lawyers, Judge McGowan reasoned that the key point was not whether the third party "is familiar with the course of negotiations between the parties, but whether the Air Force's communicator with its legal counsel was confidential, i.e., whether the Air Force legitimately expected that its summary of past events to its counsel would remain undisclosed." Id.

The majority opinion in Mead Data dismissed Judge McGowan's dissent merely by stating that he "structures his concern relative to the attorney-client privilege in sound generalities which unfortunately disregard the basic fact that this case arises under the Freedom of Information Act." Id. at 255 n.28. This restrictive view of the scope of the attorney-client privilege has been followed within the D.C. Circuit in two subsequent FOIA cases. See Schlefer v. United States, 702 F.2d 233, 245 (D.C. Cir. 1983), Brinton v. Department of State, 636 F.2d at 604. However, subsequent decisions by the Supreme Court compel the conclusion that the analysis applied in this line of cases is no longer valid, if it ever was, either as an analytical approach to the privileges encompassed within Exemption 5 of the FOIA or as a matter of substantive law interpreting the attorney-client privilege.

As a threshold matter, the Supreme Court has recently emphasized in both Weber Aircraft, 104 S. Ct. at 1492-94, and Grolier, 462 U.S. at 26-28, that the scope of a privilege encompassed within the FOIA's Exemption 5 is coextensive with the scope of that privilege in the civil discovery context. Thus, contrary to the position of the Mead Data majority, the "fact that [a] case arises under the Freedom of Information Act," 566 F.2d at 255 n.28, is simply of no significance in determining the substantive contours of a civil discovery privilege.

With respect to the substantive breadth of the attorney-client privilege, the Supreme Court not long ago emphasized that "'[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, 'What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.'" Upjohn, 449 U.S. at 395-96 (quoting Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962)) (emphasis in the quoted opinion); see also United States v. Cunningham, 672 F.2d 1064, 1073 n.8 (2d Cir. 1982) ("[W]e do not suggest that an attorney-client privilege is lost by the mere fact that the information communicated is otherwise available to the public. The privilege attaches not to the information but to the communication of the information."), cert. denied, 104 S. Cl. 2154 (1984); In re Ampicillin Antitrust Litigation, 81 F.R.D. 377, 388 (D.D.C. 1978) ("[T]he communication need not be of confidential information for the privilege to apply."). In addition to recognizing the need for complete protection of all communications between a client and his attorney, this more expansive view of the privilege has been praised as not "impos[ing] the near impossible burden of proving that other parties are ignorant of the facts underlying the communication." Note, 62 Boston U.L. Rev. at 1021.

Accordingly, agencies should disregard the restrictive, pre-Upjohn limitation on the attorney-client privilege applied by the D.C. Circuit in Mead Data and Brinton. (Although Schlefer, the third in this line of cases, was decided after Upjohn, the D.C. Circuit's rather perfunctory treatment of the issue, see 702 F.2d at 245, completely ignored the Supreme Court's guidance on this point.)

Another important aspect of the attorney-client privilege is its particular confidentiality requirement; that is, the privilege will be found to be waived when the communication is disseminated outside of the traditional attorney-client relationship, even when such dissemination is entirely within the agency. In fact, it has generally been recognized that "[t]he burden is on the agency to demonstrate that confidentiality was expected in the handling of these communications, and that it was reasonably careful to keep this confidential information protected from general disclosure." Coastal States, 617 F.2d at 863. Of course, free disclosure has always been permitted to those individuals within an agency holding decisionmaking authority. See, e.g., id. ("[T]he privilege should not be defeated by some limited circulation beyond the attorney and the person within the group who requested the advice."); Mead Data, 566 F.2d at 253 n.24 ("Where the client is an organization, the privilege extends to those communications between attorneys and all agents or employees of the organization who are authorized to act or speak for the organization in relation to the subject matter of the communication."); Sterling Drug, Inc. v. Harris, 488 F. Supp. 1019, 1025 (S.D.N.Y. 1980) (communications between FDA legal staff and agency officials with apparent decisionmaking responsibilities fall within privilege). Moreover, it is important to note that the Supreme Court in Upjohn expanded the range of personnel who may provide or share privileged information by holding that the privilege encompasses confidential communications made to attorneys not only by decisionmaking "control group" personnel, but also by those lower-echelon employees who possess information needed by counsel to advise their clients. 449 U.S. at 391-92.

Indeed, several FOIA cases decided subsequently to Upjohn have held that the limited dissemination of documents or information to those individuals within an agency involved in a specific matter, regardless of their echelon, does not constitute a breach of confidentiality waiving the privilege. See, e.g., Murphy v. TVA, 571 F. Supp. 502, 506 (D.D.C. 1983) (limited dissemination of copies to TVA employees involved in negotiations does not amount to breach of confidentiality) (citing Upjohn); LSB Industries, Inc. v. Commissioner of Internal Revenue, 556 F. Supp. 40, 44 (W.D. Okla. 1982) (no waiver of privilege by sending copies to various IRS personnel involved in IRS investigation). These decisions appropriately apply the principle that whether confidentiality has been waived by the intra-agency dissemination of documents and information should turn upon an analysis of all of the circumstances surrounding the matter rather than simply upon the level or rank of the recipient employee.

In sum, it is important to remember that the attorney-client privilege as applied under Exemption 5 of the FOIA is identical in its coverage to the privilege as applied in civil discovery. Thus, as defined by the Supreme Court, the privilege protects all confidential communications -- even those containing purely factual information or information generally known to third parties -- from an agency client to its attorney for the purpose of obtaining legal advice. It likewise protects the advice of the attorney to the client to the extent that disclosure would reveal any information originally provided by the client. Finally, to protect against waiver of this privilege, agencies should exercise particular care, even more than that required for other privileged materials, to limit the dissemination of such attorney-client information to those who truly have a "need to know."

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