UNITED STATES OF AMERICA, PETITIONER V. WEBER AIRCRAFT CORPORATION, ET AL. No. 82-1616 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PARTIES TO THE PROCEEDING The respondents are Weber Aircraft Corporation and Mills Manufacturing Corporation. TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-19a) is reported at 688 F.2d 638. The district court's findings of fact and conclusions of law (App. B, infra, 21a-26a) are not reported. JURISDICTION The judgment of the court of appeals (App. A, infra, 18a) was entered on September 21, 1982, and a petition for rehearing was denied on December 3, 1982 (App. D, infra, 29a). On February 23, 1983, Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including April 1, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED 1. The Freedom of Information Act, 5 U.S.C. 552(a)(4)(B), provides: On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. 2. The Freedom of Information Act, 5 U.S.C. 552(b)(5), provides: (b) This section does not apply to matters that are -- * * * * * (5) inter-agency or intra-agency memorandums or letters which would be available by law to a party other than an agency in litigation with the agency. QUESTION PRESENTED Whether confidential statements made by witnesses in an Air Force air crash safety investigation are protected from disclosure under Exemption 5 of the Freedom of Information Act, 5 U.S.C. 552(b)(5). STATEMENT 1. Whenever an Air Force plane crashes, two investigations are routinely conducted. One of these, the "collateral investigation," is designed to gather and preserve evidence for use in official, on-the-record proceedings, such as courts-martial, administrative proceedings, and civil litigation. See A.F. Reg. 110-14 (July 18, 1977). /1/ The other investigation, termed a "safety investigation," is an internal probe the sole purpose of which is "to prevent mishap recurrence." A.F. Reg. 127-4 Paragraph 2-4 (Jan. 18, 1980). /2/ In order to assure that the latter investigation uncovers as much evidence as possible, witnesses are promised that their statements will not be divulged to anyone for a purpose other than safety. A.F. Reg. 127-4 Paragraph 2-5 (Jan. 18, 1980). /3/ The Air Force credits this program with significant results in improving aircraft safety. The other military services follow similar procedures. To protect the integrity of this vital program, the courts have recognized a civil discovery privilege for confidential witness statements made in connection with military safety investigations. See Machin v. Zuckert, 316 F.2d 336 (D.C. Cir.), cert. denied, 375 U.S. 896 (1963). /4/ Similarly, two courts of appeals have held that such statements are exempt from disclosure under Exemption 5 of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(5), which 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." See Cooper v. Department of the Navy, 558 F.2d 274 (5th Cir. 1977), modified on other grounds, 594 F.2d 484 (5th Cir.), cert. denied, 444 U.S. 926 (1979); Brockway v. Department of the Air Force, 518 F.2d 1184 (8th Cir. 1975). 2. In the accident giving rise to the documents at issue in this litigation, an Air Force pilot, Captain Richard Hoover, suffered serious injuries when he ejected from his plane after an engine failure. Pursuant to its regulations, the Air Force conducted both a "collateral investigation" and a "safety investigation." When Captain Hoover brought suit in federal court for damages against the manufacturers of his plane's ejection equipment, /5/ two of the defendant companies, respondents Weber Aircraft Corporation and Mills Manufacturing Corporation, sought discovery of the Air Force investigation reports pertaining to the accident. The Air Force released the complete record of the collateral investigation and portions of the safety investigation report. However, relying upon the privilege recognized in Machin, the Air Force declined to release confidential statements made in connection with the safety investigation by Captain Hoover and by an airman who helped to rig the ejection equipment. App. A, infra, 2a-3a. Respondents then filed Freedom of Information Act requests seeking disclosure of the confidential statements, but the Air Force refused to release the records in reliance on Exemption 5. After exhausting administrative remedies, respondents brought this action in the United States District Court for the Central District of California. App. A, infra, 3a-4a. In an uncontroverted affidavit filed in district court, the Air Force pointed out that the effectiveness of its safety investigation program depends to a large extent upon (its) ability to obtain full and candid information on the cause of each aircraft accident. * * * Open and candid testimony is received because witnesses are promised that for the particular investigation their testimony will be used solely for the purpose of flight safety and will not be disclosed outside of the Air Force. Lacking authority to subpoena witnesses, accident investigators must rely on such assurances in order to obtain full and frank discussion concerning all the circumstances surrounding an accident. R.E. 42-43, Affidavit of Maj. Gen. Len C. Russell, Commander, Air Force Inspection and Safety Center at 2-3. /6/ The Air Force also averred that the inability of safety investigators to make enforceable promises of confidentiality "would seriously hinder the accomplishment of prompt corrective action designed to preclude the occurrence of a similar accident" and that the privilege against forced disclosure of witness statements is therefore "the very foundation of a successful Air Force flight safety program" (ibid). The Secretary of the Air Force concluded that public release of witness statements "would effectively dry up a vital source of information because the promise of confidentiality would no longer be enforceable." R.E. 58, Affidavit and Claim of Privilege by Thomas C. Reed, Secretary of the Air Force Paragraph 17. The district court held that the witness statements had been properly withheld under Exemption 5 (App. B, infra, 21a-26a; App. C, infra, 27a), but a divided panel of the court of appeals reversed, holding that Exemption 5 does not incorporate the Machin civil discovery privilege (App. A, infra, 1a-19a). The court based its decision upon FOMC v. Merrill, 443 U.S. 340 (1979), in which this Court held that Exemption 5 incorporates a limited privilege for confidential commercial information. The court of appeals acknowledged (App. A, infra, 8a n.6), however, that "Merrill expressly left open the question whether Exemption 5 incorporates (the Machin) privilege." The court of appeals noted (App. A, infra, 6a) the statement in Merrill (443 U.S. at 355) that a claim that Exemption 5 incorporates a privilege other than those specifically recognized in the legislative history /7/ "must be viewed with caution." Observing that the Merrill Court had found evidence in the legislative history that Congress "specifically contemplated a limited privilege for confidential commercial information" (id. at 359), the court of appeals stated (App. A, infra, 6a; emphasis added): "As we read Merrill, this finding is the linchpin of the Court's analysis: Exemption 5 embraces only those civil discovery privileges explicitly recognized in the legislative history." Assuming "that the witness statement here would be shielded from civil discovery under the Machin privilege" (App. A, infra, 8a), the court of appeals then reviewed the legislative history of the FOIA but found "no evidence * * * that Congress intended Exemption 5 to protect witness statements given under a promise of confidentiality" (id. at 10a). The court instead concluded (id. at 11a-12a) that Congress intended to protect only legal or policy matters and the exchange of ideas among agency personal, rather than purely factual material. The court of appeals acknowledged (App. A, infra, 7a-8a) that its decision conflicts with decisions of the Fifth and Eighth Circuits handed down prior to Merrill. Cooper v. Department of the Navy, supra; Brockway v. Department of the Air Force, supra. However, the court disagreed (App. A, infra, 9a) with the Eighth Circuit's interpretation of the legislative history of Exemption 5. Expressing skepticism concerning the government's assertion that "future aircraft accident investigations will be seriously impaired if the military cannot assure witnesses that their statements will be held in confidence" (id. at 17a), the court criticized the Fifth Circuit for "relying on the Air Force's conclusory affidavit and 'common sense'" (id. at 17a-18a, quoting Cooper v. Department of the Navy, supra, 558 F.2d at 277) and likewise criticized the Eighth Circuit for "speculating that disclosure would result in 'the definite possibility that the deliberative process of the Air Force will be hampered'" (App. A, infra, 18a, quoting Brockway v. Department of the Air Force, supra, 518 F.2d at 1194). /8/ Accordingly, the court of appeals remanded the case to the district court to determine which portions of the witness statements are factual and which constitute predecisional advice, opinions, or recommendations that may be withheld under the deliberative process privilege incorporated into Exemption 5 (see App. A, infra, 12a, 18a). /9/ Judge Smith dissented, stressing that "(w)e deal here with the lives of the persons who fly military aircraft" (App. A, infra, 18a). Judge Smith stated (id. at 19a): "I do not think it can be said that Merrill constitutes a repudiation, sub silentio, of Cooper and Brockway. I believe those cases to be sound, and I would follow them and affirm." REASONS FOR GRANTING THE PETITION This case presents an important and recurring question concerning the scope of the protection afforded by Exemption 5 of the Freedom of Information Act, 5 U.S.C. 552(b)(5), to statements made under a promise of confidentiality by witnesses in military air crash safety investigations. If not reversed, the decision of the court of appeals requiring disclosure of such statements under the FOIA will seriously impair the ability of the military services to gather information needed to prevent aircraft accidents and will undermine the well-established privilege applicable to such statements in civil discovery. The decision below is in direct conflict with the rulings of two other courts of appeals and is based upon a patently erroneous interpretation of FOMC v. Merrill, 443 U.S. 340 (1979), in which this Court specifically declined to reach the question posed by this case (id. at 355 n.17). Review by this Court is therefore warranted. 1. Two courts of appeals have held that statements made under a promise of confidentiality as part of a military air crash safety investigation are protected from disclosure by Exemption 5 of the FOIA. Cooper v. Department of the Navy, 558 F.2d 274 (5th Cir. 1977), modified on other grounds, 594 F.2d 484, cert. denied, 444 U.S. 926 (1979); Brockway v. Department of the Air Force, 518 F.2d 1184 (8th Cir. 1975). In reaching this conclusion, both courts stressed the important purposes served by preserving the confidentiality of such statements. As the Fifth Circuit aptly put it (Cooper v. Department of the Navy, supra, 558 F.2d at 277): It seems plain, and the record bears out the notion, that in the circumstances of an aircraft accident investigation, assurances of confidentiality may be especially needed to obtain full disclosures. After all, something has gone wrong -- perhaps gravely, even mortally wrong -- under circumstances inherently dangerous. The machines and the procedures being employed are generally uniform and will be employed again tomorrow in the same manner unless altered. Is there something wrong with them generally? Or did the mishap (or catastrophe) occur because of a particular defect in a particular machine? Does a crewchief believe (though not with enough confidence to swear to it) that a pilot was unwell or distracted on the occasion of a fatal flight? Does he recall that he forgot to secure some important assembly of the craft before the flight? To permit a breach of assurances of confidentiality given in order to obtain answers to such questions as these may perhaps provide access to more information in that particular case, but common sense tells us that it will likely also assure that in future cases such information will never see the light of day and will be of use to no one. Logic argues, then, that in such a circumstance as the Aircraft Accident Safety Investigation, where (promises) of confidentiality have been found helpful and perhaps essential to obtaining information upon which to base corrective action, those promises should be respected and the answers and speculations which they produce shielded from disclosure. See also Brockway v. Department of the Air Force, supra, 518 F.2d at 1194. As previously noted, it is also the considered judgment of the military services that preserving the confidentiality of witness statements provided as part of a safety investigation is necessary to prevent air crashes and to maximize the effectiveness of military aircraft. In requiring disclosure of such statements, the court below thus reached a result viewed as dangerous both by two courts of appeals and by those most knowledgeable and experienced in determining the causes of and preventing military airplane crashes. Review by this Court is warranted to resolve the conflict in the circuits and to prevent the deleterious consequences that the decision below may produce. 2. In departing from the prior decisions of the Fifth and Eighth Circuits, the court below noted (App. A, infra, 7a-8a) that those decisions antedated FOMC v. Merrill, supra. While acknowledging (App. A, infra, 8a n.6) that Merrill "expressly left open the question whether Exemption 5 incorporates" the privilege for confidential statements made to military safety investigators, the court nevertheless based its decision squarely upon what it termed Merrill's "new analysis of the interplay between Exemption 5 and civil litigation privileges" (App. A, infra, 5a). It is apparent, however, that Merrill does not require the result that the court of appeals reached. a. Exemption 5 of the FOIA does not specify the particular types of agency records that may be withheld. Instead, it provides in general terms that a government agency may deny disclosure of any records "which would not be available by law to a party * * * in litigation with the agency" (5 U.S.C. 522(b)(5)). Since privileged information would not usually be "available by law" in civil discovery, this Court has stated that "it is reasonable to construe Exemption 5 to exempt those documents * * * normally privileged in the civil discovery context" (NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); footnote omitted). See also Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184 (1975) ("Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context"); EPA v. Mink, 410 U.S. 73, 91 (1973). In Merrill, this Court remarked (443 U.S. at 354) that "it is not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery." The Court also observed (id. at 355): "Given that Congress specifically recognized that certain discovery privileges (i.e., executive privilege and attorney work product privilege) were incorporated into Exemption 5, and dealt with other civil discovery privileges in exemptions other than Exemption 5, a claim that a privilege other than executive privilege or the attorney privilege is covered by Exemption 5 must be viewed with caution." The court of appeals, however, read far more into Merrill. Stating (App. A, infra, 6a, quoting 443 U.S. at 359) that the Merrill Court "found evidence in the House Report on the FOIA * * * that Congress 'specifically contemplated a limited privilege for confidential commercial information,'" the court of appeals concluded (App. A, infra, 6a): As we read Merrill, this finding is the linchpin of the Court's analysis: Exemption 5 embraces only those civil discovery privileges explicitly recognized in the legislative history. b. The court of appeals' interpretation of Merrill is inconsistent with the decision of Merrill itself, since the privilege there held to be incorporated into Exemption 5 -- a qualified privilege for confidential commercial information -- was not "explicitly recognized" in the legislative history. Relying upon a sentence in the House Report (H.R. Rep. No. 1497, 89th Cong., 2d Sess. 10 (1966)) referring to documents or information received by the government "before it completes the process of awarding a contract," the Court in Merrill concluded (443 U.S. at 359; emphasis added; footnote omitted): "(W) ethink it is reasonable to infer that the House Report * * * specifically contemplated a limited privilege for confidential commercial information pertaining to such contracts." The Court went on to hold that the Federal Open Market Committee's Domestic Policy Directives are "at least potentially eligible for protection under Exemption 5" (id. at 360-361 n.23) and explained (id. at 361; emphasis added): "Although the analogy is not exact, we think that the Domestic Policy Directives and associated tolerance ranges are substantially similar to confidential commercial information generated in the process of awarding a contract." Thus, this Court's decision in Merrill was based upon "infer(ence)" and "analogy" rather than explicit recognition by Congress of the privilege at issue. /10/ The court of appeals not only lost sight of what Merrill actually decided, it also distorted the language of this Court's opinion. As noted above, the Court stated (443 U.S. at 359; footnote omitted): "(W)e think it is reasonable to infer that the House Report * * * specifically contemplated a limited privilege for confidential commercial information pertaining to such contracts." Terming this sentence "the linchpin" of the analysis in Merrill (App. A, infra, 6a), the court of appeals ignored the phrase "we think it is reasonable to infer" and broadened the phrase "specifically contemplated" to mean "explicitly recognized." The court thereby read Merrill to hold that "Exemption 5 embraces only those civil discovery privileges explicitly recognized in the legislative history" (App. A, infra, 6a). This is a wholly unsupportable interpretation of the Merrill opinion. c. The court of appeals again departed from the teaching of Merrill when it examined the legislative history for evidence that Congress intended Exemption 5 to protect witnesses statements given under a promise of confidentiality. The court stated (App. A, infra, 8a): "(O)ur search convinces us that neither House of Congress intended Exemption 5 to incorporate an executive privilege that protects purely factual material." Rather, the court concluded (id. at 10a; footnote omitted) that "Congress intended Exemption 5 to incorporate an executive privilege of limited scope, protecting 'legal or policy matters' or 'advice * * * and exchange of ideas.'" This conclusion is plainly inconsistent with Merrill, since it is apparent that much of the information there held to be protected by Exemption 5 would be subject to mandatory disclosure under the court of appeals' analysis. For example, bids by firms seeking a government contract or the government's appraisal of real estate it intends to sell are "purely factual," do not relate to legal or policy matters, and do not constitute advice or the exchange of ideas. Nevertheless, such information falls squarely within the protection recognized in Merrill for confidential commercial information received or generated before the government completes the process of awarding a contract. See, e.g., Government Land Bank v. GSA, 671 F.2d 663 (1st Cir. 1982) (realty appraisal). By insisting that Exemption 5 protects only "'legal or policy matters'" and "'advice * * * and exchange of ideas'" (App. A, infra, 10a), the court of appeals confused the deliberative process privilege and its rationale with the broader protection afforded by Exemption 5, which incorporates other privileges designed to serve other ends. Both in civil discovery and under Exemption 5, the deliberative process privilege does not reach "purely factual material contained in deliberative memoranda and severable from its context." EPA v. Mink, supra, 410 U.S. at 88. If not protected by another privilege, such facts in all likelihood will be drawn from sources accessible to the public or from government information subject to public disclosure, and therefore revealing them would not impair the government's decisionmaking processes. It does not follow, however, that all other privileges incorporated into Exemption 5 are subject to the same limitation. Merrill itself recognized the different purposes served by privileges embraced by Exemption 5 (443 U.S. at 359-360; emphasis added): The purpose of the privilege for predecisional deliberations is to insure that a decision-maker will receive the unimpeded advice of his associates. The theory is that if advice is revealed, associates may be reluctant to be candid and frank. * * * The theory behind a privilege for confidential commercial information generated in the process of awarding a contract, however, is not that the flow of advice may be hampered, but that the Government will be placed at a competitive disadvantage or that the consummation of the contract may be endangered. See also Brockway v. Department of Air Force, supra, 518 F.2d at 1192-1193. d. Contrary to the decision below, Merrill did not establish a rigid rule for determining whether a particular privilege is incorporated into Exemption 5. While advising that courts should proceed with caution before holding that Exemption 5 incorporates any privilege other than the executive and attorney privileges (443 U.S. at 355), Merrill held that just such a privilege fell within that Exemption. And in reaching that conclusion, Merrill relied upon inferences and analogies drawn from the legislative history (see id. at 359-363). Merrill also stated (id. at 355): "(W)e hesitate to construe Exemption 5 to incorporate a civil discovery privilege that would substantially duplicate another exemption." These general principles do not dictate the result reached by the court of appeals. Certainly Merrill did not repudiate "the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself" and that "(a)bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." CPSC v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). See also Dickerson v. New Banner Institute, Inc., No. 81-1180 (Feb. 23, 1983), slip op. 7. Particularly in view of the court of appeals' assumption (App. A, infra, 8a) that the statements at issue here "would be shielded from civil discovery by the Machin privilege," it seems obvious that those statements fall within the unambiguous language of Exemption 5, which protects materials "which would not be available by law to a party * * * in litigation with the agency." The court of appeals did not point to anything in the legislative history of the FOIA that suggests that Congress intended such statements to be disclosed. And while the privilege in question here, like that in Merrill, is not mentioned in the legislative history, it is fully consistent with the expressed purposes of Exemption 5. In the passage upon which Merrill relied (see 443 U.S. at 359), the House Report (H.R. Rep. No. 1497, 89th Cong., 2d Sess. 10 (1966)) made the following observations concerning that Exemption: Agency witnesses argued that a full and frank exchange of opinions would be impossible if all internal communications were made public. They contended, and with merit, that advice from staff assistants and the exchange of ideas among agency personnel would not be completely frank if they were forced to "operate in a fishbowl." Moreover, a Government agency cannot always operate effectively if it is required to disclose documents or information which it has received or generated before it completes the process of awarding a contract or issuing an order, decision or regulation. This clause (Exemption 5) is intended to exempt from disclosure this and other information and records wherever necessary without, at the same time, permitting indiscriminate agency secrecy. This passage plainly supports incorporation of the Machin privilege. Just as "advice from staff assistants and the exchange of ideas among agency personnel would not be completely frank if they were forced to 'operate in a fishbowl'" (H.R. Rep. No. 1497, supra, at 10), witnesses questioned by military safety investigators would not be completely frank if their statements were subject to public disclosure. "Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests * * *" (United States v. Nixon, 418 U.S. 683, 705 (1974)). Similarly, just as government efficiency may be impaired by the premature disclosure of documents or information received or generated in preparation for the awarding of a contract or issuance of an order, decision, or regulation, the efficiency of the military's air safety program, as well as its overall effectiveness, will be adversely affected if binding promises of confidentiality may not be made to witnesses possessing vital information concerning the causes of military aircraft accidents. For these reasons, the "flexible, commensense approach" required for determining the scope of Exemption 5 (EPA v. Mink, supra, 410 U.S. at 91) must necessarily lead to incorporation of the recognized privilege for confidential witness statements such as those involved here. Exemptions to the FOIA must be given a reasonable interpretation in order to accomplish the purposes of the Act. See Department of State v. Washington Post Co., 456 U.S. 595 (1982); FBI v. Abramson, 456 U.S. 615 (1982). The FOIA's overriding goal is to promote open government (Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 17 (1974)) and "to ensure an informed citizenry * * * (in order) to hold the governors accountable to the governed" (NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)). But disclosure of confidential statements made to military safety investigators is unlikely to promote open government, an informed citizenry, or any other beneficial purpose. If confidentiality cannot be ensured, statements provided as part of a safety investigation are unlikely to reveal anything more than those furnished in connection with the parallel colalteral investigation. As a result, the information available to the public will not be increased appreciably, while that available to those concerned with aircraft safety will decrease both in quantity and reliability. /11/ Finally, it is clear that incorporating the Machin privilege into Exemption 5 would not substantially duplicate any other exemption. In sum, this Court's decision in Merrill does not require repudiation of the prior holdings of two courts of appeals that statements given in confidence to military air crash safety investigators are protected from mandatory disclosure by Exemption 5 of the FOIA. Merrill certainly did not hold that the FOIA requires disclosure of materials even though they fall within the plain language of Exemption 5, and there is nothing in the legislative history even remotely suggesting that Congress intended statements such as these to be disclosed. Such a holding would be a marked departure both from this Court's prior decisions concerning the meaning of Exemption 5 and from the ordinary rules of statutory construction. If, as the court of appeals believed, there is language in Merrill that lends support to such a result, clarification by this Court is warranted. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General J. PAUL McGRATH Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General SAMUEL A. ALITO, JR. Assistant to the Solicitor General LEONARD SCHAITMAN WENDY M. KEATS Attorneys APRIL 1983 /1/ The collateral investigation in this case was conducted pursuant to A.F. Reg. 110-14 (Nov. 1, 1973). App. A, infra, 2a n.2. /2/ The safety investigation in this case was conducted pursuant to A.F. Reg. 127-4 (Jan. 1, 1973), pertinent provisions of which are set forth at App. E, infra, 31a-33a. The regulation adopted in 1980 did not change the privilege or procedures involved here in any material respect. /3/ See also A.F. Reg. 127-4 Paragraph 19(a)(3) (Jan. 1, 1973) (superseded 1980). /4/ See also McCormick on Evidence Section 108, at 230 n.6 (E. Cleary 2d ed. 1972); 8 C. Wright & A. Miller, Federal Practice & Procedure Section 2019, at 169 n.22 (1970). /5/ Hoover v. Weber Aircraft Corp., C.D. Cal. No. CV 74-1064-WPG. /6/ "R.E." refers to the Record Excerpts filed with the court of appeals. /7/ The Court stated in Merrill (443 U.S. at 355 & n.15) that the deliberative process, attorney-client and work-product privileges were "expressly mentioned" in the legislative history. /8/ The court of appeals also held (App. A, infra, 14a-18a) that traditional equity principles did not justify nondisclosure of the witness statements. /9/ The court of appeals reversed the portion of the district court judgment holding that an Air Force medical report fell within the deliberative process privilege as incorporated into Exemption 5 (see App. A, infra, 13a). The court of appeals directed the district court on remand to determine whether portions of the report constituted "factual reporting" and were consequently not covered by Exemption 5 (ibid.). This portion of the court of appeals' decision is not at issue here. /10/ The Court noted (443 U.S. at 358 & n.21) that in hearings preceding enactment of the FOIA, the General Counsel of the Treasury Department expressed concern about premature disclosure of information concerning Federal Reserve Open Market operations. Congress, however, did not specifically express a similar concern. /11/ It seems particularly unlikely that Congress intended to require disclosure under the FOIA of statements like those at issue here because to do so would undermine the well-established governmental privilege afforded such statements in civil litigation. See Machin v. Zuckert, supra; McCormick on Evidence Section 108, at 230 n.6 (E. Cleary 2d ed. 1972); 8 C. Wright & A. Miller, Federal Practice & Procedure Section 2019, at 169 n.22 (1970). The FOIA was not intended to be used to circumvent the rules of civil discovery. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974). See also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10 (1975). But if any person may obtain such statements upon reuqest under the FOIA, the privilege recognized in civil discovery will be of little value. A civil litigant denied discovery of such statements on grounds of privilege will be able to circumvent the privilege by filing an FOIA request. The effective abrogation of this important and well-established privilege is a matter that warrants review by this Court. Appendix Omitted