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FOIA COMMENTARY BY ACCESS REPORTS

IV. ANALYSIS

M. Exemptions

Text:

5 U.S.C. §552(b). This section does not apply to matters that are. . .(see below for a discussion of the nine categories of information that are exempt from disclosure). Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of information deleted shall be indicated at the place in the record where such deletion is made.

Discussion:

This section sets forth nine categories of records which are exempt from the FOIA's three disclosure mandates; i.e., 5 U.S.C. 552(a)(1), (a)(2), and (a)(3). Despite the use of the introductory words "this section," Section (b) does not exempt records from the FOIA's other provisions. Linsteadt v. IRS, 729 F.2d 988, 1000 n.3 (5th Cir. 1984). For example, it would make no sense to argue that the requirement in Section (a)(6) to inform a requester of the reasons for a denial does not apply to exempt records, because only exempt records can be withheld.

These exemptions are permissive rather than mandatory, i.e., they do not require the withholding of any records. If there were any remaining doubts on this question, they were settled by the Supreme Court in Chrysler Corp. v. Brown, 441 U.S. 281 (1979). Even courts sometimes misstate the issue, however. E.g., "[t]his appeal presents a single issue, whether Exemption 6. . .of the [FOIA] prohibits the release of [the records at issue]." (emphasis added). Sheet Metal Workers Local No. 9 v. U.S. Air Force, 63 F.3d 994, 995 (10th Cir. 1995).

Because the exemptions are permissive, agencies can waive them unless there is some other statute which requires withholding. The question sometimes arises, however, whether an agency has unintentionally waived an exemption. For example, in Mobil Oil Corp. v. EPA, 879 F.2d 698 (9th Cir. 1989), the question was whether EPA had waived valid Exemption 5 and 7 claims by releasing related documents to a third party. Both parties agreed that EPA had not released the actual documents at issue. The court held that EPA had not waived the exemptions. "Implying waiver of these exemptions based on the release of related documents to Mobil or to third parties would be contrary both to the case law on waiver and to the policies underlying FOIA and its exemptions." 879 F.2d at 700. In dicta the court summarized what remains the current rule that release of a document does constitute a waiver of any exemptions applicable to that document, but not to related records unless they are identical in substance.

Davis v. U.S. Dept. of Justice, 968 F.2d 1276 (D.C. Cir. 1992), presented an interesting variation of the waiver issue. A researcher sought copies of tape recordings made during a criminal investigation, portions of which were played in open court during the resulting prosecution. The parties agreed that the Government had waived any FOIA exemptions by playing the tapes in court, but neither the researcher nor the Government could identify those portions with certainty. The district could held that the burden for identifying those portions was on the Government, and that if it could not meet this burden, it would have to release all the tapes. The appellate court reversed, holding that to "obtain portions of the tapes alleged to be in the public domain, [Plaintiff] has the burden of showing that there is a permanent public record of the exact portions he wishes. It does not suffice to show -- as he has done -- that some of the tapes were played to shift the burden to the government." 968 F.2d at 1280. The court did not explain why a plaintiff would even be making the request if he could meet this burden.

In October 1993, the President and the Attorney General directed agencies to consider waiving FOIA exemptions in all cases unless there is a "reasonable probability that disclosure would be harmful to an interest protected by [the exemptions being claimed]." See FOIA Update, Summer/Fall 1993.

Congress added the provision concerning reasonably segregable portions in the 1974 Amendments to make it clear that the fact that a record contained some exempt portions was not automatically grounds for withholding the entire record (even when dealing with national security matters under Exemption 1). For an excellent discussion of this issue see Morton-Norwich Products, Inc. v. Mathews, 415 F.Supp. 78 (D.D.C. 1976). It is possible, however, for an agency to argue successfully "that the editing required for partial disclosure. . .is so extensive that the remaining information is not reasonably segregable. . ." Long v. IRS, 825 F.2d 225, 230 (9th Cir. 1987). Courts of appeal will remand a case if the district court fails to make express findings as to whether or not withheld records contain any reasonably segregable portions. Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992); PHE, Inc. v. Dept. of Justice, 983 F.2d 248 (D.C. Cir. 1993).

Laborers' Int. Union of North America v. Dept. of Justice, 772 F.2d 919 (D.C. Cir. 1985), presents an interesting aspect of this requirement. The case involved a Criminal Division report entitled "Organized Crime and the Labor Unions." The plaintiff had what it claimed was a leaked copy. Under these circumstances, the agency successfully contended that there were no "reasonably segregable" portions since to release any part of the report would confirm whether or not plaintiff's copy was an accurate one.

The 1996 Amendments added the requirement to indicate the location and extent of reasonably segregable material redacted, which is discussed above. They did not, however, change the language of any of the nine exemptions.

In Trans-Pacific Policing Agreement v. U.S. Customs, 177 F.3d 1022 (D.C. Cir. 1999), the court considered a situation in which the requester raised the argument for the first time on appeal that it was willing to concede that the records at issue (i.e., 10-digit shipping code numbers) were exempt in part, but that a redacted (i.e., 4-digit) version was not. Customs countered by arguing that the requester had waived this argument, holding that district court have "an affirmative duty to consider the segregability argument sua sponte." 177 F.3d at 1028.

Each of the nine exemptions is discussed separately below. A discussion of "Reverse FOIA Cases" follows that of Exemption 4, for this is the exemption that has been involved in an overwhelming majority of those cases.

Exemption 1. . . .(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.

Congress amended this exemption in the 1974 Amendments to reverse the Supreme Court's decision in EPA v. Mink, 410 U.S. 73 (1973), in which the Court held that a showing of the fact of a record's classification under the applicable executive order justified withholding in such a way as to preclude any further judicial inquiry into the matter.

Before proceeding further, however, it is necessary to understand exactly what is meant by the national security classification system. It is a system prescribed by executive order to insure the safeguarding of records and other materials whose improper release would adversely affect the national security (a term which includes the national defense and foreign relations). The current executive order is E.O. 12968, which replaced E.O. 12356 on October 14, 1995. It prescribes three classifications -- Confidential, Secret and Top Secret. Any other term is not a national security classification and cannot be used to justify withholding under Exemption 1.

It is vitally important for anyone engaged in an Exemption 1 FOIA analysis to work with the Executive Order that was in effect at the time of the classification decision rather than that of the analysis, for it is the former which controls in any subsequent litigation. Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999). Earlier, another court of appeals ruled that while a district court may permit an agency to rely on a superseding Executive Order in FOIA litigation, it may not require the agency to do so. Campbell v. U.S. Dept. of Justice, 164 F.3d 20 (D.C. Cir. 1998).

Congress described two main purposes for the 1974 amendment. The first was to make it clear that the FOIA empowered courts to make de novo determinations on both the procedural and substantive correctness of an agency's classification decision, and to conduct an in camera inspection, in their discretion, where necessary to make that de novo determination. The second, corollary purpose, was to authorize courts to order the release of records which they found were improperly classified. For a further discussion of this amendment see 1974 Bluebook at 1-4.

This amendment was cited by President Ford as one of his main reasons for vetoing the 1974 Amendments. Source Book II at 484. In the conference report, however, the conferees had indicated that they expected "that Federal Courts, in making de novo determinations in Section 552(b)(1) cases. . .will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed records." Source Book II, at 226.

They also expressed the view that "before a court orders in camera inspection, the Government should be given the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure." Source Book II at 226.

As a result of this legislative history, most Exemption 1 cases have involved plaintiffs attacking the adequacy of the agency's affidavit and urging the court to examine the records in camera. Initially it seemed that the courts were going to accept an agency's affidavit as a matter of course unless there was evidence of bad faith on its part. E.g., Weissman v. CIA, 565 F.2d 692 (D.C. Cir. 1977). In 1978, however, the D.C. Circuit expressed a different view, rejecting the theory that the agency's classification decision should be upheld so long as it could establish a "reasonable basis" for the decision, and that the courts' authority to conduct in camera inspections was limited to cases where there was evidence of bad faith on the part of the agency. Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978).

This decision produced great uncertainty as to exactly what was required for the Government to satisfy its burden of proof in an Exemption 1 case. The accepted standard today for granting summary judgment to the Government without conducting an in camera inspection is that expressed in Hayden v. National Security Agency/Central Security Service, 608 F.2d 1381, 1387 (D.C. Cir. 1979):

The affidavits must show, with reasonable specificity, why the documents fall within the exemption. The affidavits will not suffice if the agency's claims are conclusory, merely reciting statutory standards, of if they are too vague or sweeping. If the affidavits provide specific information to place the documents within the exemption category, if this information is not contradicted in the record, and if there is not evidence of agency bad faith, then summary judgment is appropriate without in camera review of the documents.

Thus, the prevailing principle today seems to be that the courts should normally defer to an agency's judgment that disclosure would endanger the national security since "that judgment is based on information, experience and expertise to which we [the courts] are not privy, and we will not lightly override it on the basis of our own understanding of what does nor does not constitute a danger to the country's security." American Friends Serv. Com. v. Dept. of Defense, 831 F.2d 441, 447 (3rd Cir. 1988). In one of the strongest pro-government decisions to date, another court gave an unequivocal no t the question of "whether, when the DCI makes a judgment that documents could reveal intelligence sources or methods, the courts may, in the absence of evidence of bad faith, effectively go behind that judgment and order him to produce what he has determined to be exempt for reasons of national security." Knight v. CIA, 872 F.2d 660, 663 (5th Cir. 1989). The allusion in the 1996 Amendments to courts according substantial weight to agencies on some matters seems to be an implicit recognition of this principle. 5 U.S.C. §552(a)(4)(B).

In Armstrong v. Executive Office of the President, 97 F.3d 575,580 (D.C. Cir. 1996), the court reached a new high in the degree of deference shown to agencies in Exemption 1 cases:

In national security cases, a district court exercises wide discretion when it limits the number of documents it reviews [in camera]. This [deference] has two benefits. First, it makes it less likely that sensitive information will be disclosed. Second, if there is an unauthorized disclosure, having reduced the number of people with access to the information makes it easier to pinpoint the source of the leak.

For other expressions of the standard to be used in testing the sufficiency of an agency affidavit in an Exemption 1 case see Abbotts v. NRC, 766 F.2d 604 (D.C. Cir. 1985); Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981); Holy Spirit Ass'n v. CIA, 636 F.2d 838 (D.C. Cir. 1980); Lesar v. Dept. of Justice, 636 F.2d 472 (D.C. Cir. 1980); and Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980).

For an example of a court's striking down of the agency's affidavit as inadequate, see Allen v. CIA, 636 F.2d 1287 (D.C. Dir. 1980). Even in this case, however, the court did not order the records released; rather it remanded for the conducting of an in camera inspection. In doing so it stated that while the decision whether to conduct such an inspection is a matter within the district court's discretion, there are circumstances in which it would be an abuse of discretion not to conduct one. It then listed certain factors which a court should consider in making its decision:

1. judicial economy;

2. nature of the agency's affidavits (i.e., whether conclusory or not);

3. evidence of bad faith on the part of the agency;

4. existence of a dispute concerning the content of a record;

5. inspection is proposed by the agency;

6. existence of a strong public interest in disclosure.

These criteria are relevant to all FOIA-related questions concerning in camera inspections, not just those involving Exemption 1.

In another example, the court, while remanding for an additional affidavit, did not rule out "a system of categorizing. . .particularly where the documents in question are voluminous and the same exemption applies to a large number of segments. The availability of categorization does not, however, supplant the demand for particularity." King v. Dept. of Justice, 830 F.2d 210, 224 (D.C. Cir. 1987). The court also directed that on remand the agency must specifically address the fact that the records were more than 40 years old.

All of these decisions illustrate that the courts have been extremely reluctant to order disclosure of records which an agency has classified. There usual approach when dissatisfied with an agency's affidavit has been either to order a new affidavit, or (as illustrated by Allen, supra), an in camera inspection.

In August 1985, however, the FBI was required to release classified records in an FOIA suit after both the Ninth Circuit and Supreme Court Justice Rehnquist denied motions for a stay pending appeal. Powell v. United States, Civil Action No. C82-0326-MHP (N.D. Cal. 1985), stay den.No. 85-1918 (9th Cir.), stay den. No. A-84 (U.S.)(Rehnquist, J.). This decision apparently stemmed from the court's dissatisfaction with what it perceived as delaying tactics, and a repeated failure to submit affidavits which justified withholding, by the FBI. It should be noted that the records at issue were more than 30 years old; this fact may well have influenced the result.

The courts have recently, however, begun to show less deference to agencies which file conclusory affidavits with little supporting information in FOIA ligitation involving Exemption 1. Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999); Campbell v. U.S. Dept. of Justic, 164 F.3d 20 (D.C. Cir. 1998); Weatherhead v. USA, 157 F.3d 735 (9th Cir. 1998). In Campbell, the court said that "[a]mong the reasons that a declaration [filed in support of withholding under Exemption 1] might be insufficient are lack of detail and specificity, bad faith, and failure to account for contrary record evidence." 164 F.3d at 30. It held that the declaration in that case failed under the first test.

It was Weatherhead, however, that presented the most serious challenge to the government's view that courts should defer to their Exemption 1 claims in virtually all cases. The record at issue was a letter from the British Home Office to the Department of Justice concerning the extradition of two persons. The court rejected the government's argument that it could properly classify any communication from a foreign government, regardless of content. It held instead that the government must explain the harm to national security that could result from disclosure [of the specific record(s) at issue]." 157 F.3d at 742.

The government successfully sought certiorari from the Supreme Court, which set the case for argument in December 1999. On December 3, however, it granted the government's motion to vacate the 9th Circuit's decision. See, Access Reports, Vol. 25, No. 23 at 1-3. The bases for the motion were that the government had learned that the British had already disclosed the bulk of the letter to the requester, and that the case was therefore moot. Thus, a Supreme Court ruling on the correctness of the lower courts' chipping away at the degree of deference to be afforded the government in Exemption 1 cases will have to wait for another day.

It is clear that courts will not automatically reject an agency's Exemption 1 claim solely because (1) some information about the same subject has been made public, Simmons v. Dept. of Justice, 796 F.2d 709 (4th Cir. 1986); Afshar v. Dept. of State, 702 F.2d 1125 (D.C. Cir. 1983); Phillippi v. CIA, 655 F.2d 1325 (D.C. Cir. 1981), or (2) the actions described in the records may have exceeded the agency's statutory authority. Edwards v. CIA, 512 F.Supp. 689 (D.D.C. 1981). With regard to the former point, it now seems clear that to lose the ability to assert an Exemption 1 claim through disclosure, not only must the disclosure be of exactly the same information, it must also be an "official" release. Leaks, releases by congressional committees, or disclosures by former officials do not waive the exemption. See e.g., Hudson River Sloop Clearwater v. Dept. of Navy, 891 F.2d 414 (2d Cir. 1989); Public Citizen v. Dept. of State, 11 F.3d 198 (D.C. Cir. 1993).

In the case of records of the CIA, only that agency may waive an Exemption 1 claim. In recognizing this principle, the court held that ruling otherwise would mean that "other agencies of the Executive Branch -- including those with no duties related to national security -- could obligate agencies with responsibility in that sphere to reveal classified information." Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999).

The passage of time is also not a per se bar to withholding under Exemption 1, provided that the "agency declares through its affidavits that the responsive material had been reviewed to assure the continued accuracy of its original classification, and that a determination has been made that the withheld information still poses a security risk if released. . ." Oglesby v. U.S. Dept. of Army, 79 F.3d 1172, 1183 (D.C. Cir. 1996).

In Taylor v. Dept. of the Army, 684 F.2d 99 (D.C. Cir. 1982), the court upheld the classification of a compilation of records which the agency admitted could not be properly classified individually. Accord, American Friends Serv. Com. v. Dept. of Defense, 831 F.2d 441, 445 (3rd Cir. 1987). The court added that in such a situation the issue of reasonably segregable portions had no relevance "because it ignores the danger to which the compilation theory points -- that information harmless in itself might be harmful when disclosed in context." Id.

Sometimes the Government contends that it cannot properly justify its Exemption 1 claim without disclosing information which is itself exempt. In such cases it can seek leave to file an in camera affidavit. Courts have allowed these to be filed but only with great reluctance. E.g., Phillippi v. CIA, 546 F.2d 1009 (D.C. 1976). It is clear that the question of whether to permit the filing of an in camera affidavit is within the district court's discretion. Holy Spirit Ass'n v. CIA, 636 F.2d 838 (D.C. Cir. 1980). Although this procedure is used primarily in Exemption 1 cases, it may be employed under appropriate circumstances for other exemptions (e.g., Exemption 7).

As described above in the discussion of Section (a)(4)(B) an agency may validly argue on occasion that the fact of whether it has records within the scope of an FOIA request is itself properly classified information and thus withholdable under Exemption 1. Phillippi, supra; Miller v. Casey, 730 F.2d 793 (D.C. Cir. 1984). This action is commonly referred to as a Glomar denial. See Minier v. Central Intelligence Agency, 88 F.3d 797, 800 (9th Cir. 1996).

Prior to the issuance of E.O. 12065 there had been some question as to whether an agency could validly classify a record after receipt of an FOIA request. Section 1-606 expressly authorized such classification, and this authorization was continued in Section 1.6(d) of E.O. 12356. The procedure has been approved judicially. Baez v. Dept. of Justice, 647 F.2d 1328 (D.C. Cir. 1980); Lesar v. Dept. of Justice, 636 F.2d 472 (D.C. Cir. 1980).

Exemption 2. . . .related solely to the internal personnel rules and practices of an agency.

This exemption was originally quite controversial because of significant differences between the explanatory language in the Senate and House Reports and the somewhat strained rationale used to justify withholding "confidential" law enforcement manuals under this exemption.

Congress mooted this question by amending Exemption 7 in the 1986 amendments so that it now encompasses all "records or information compiled for law enforcement purposes" whose disclosure could produce one or more of the specified categories of harm. This deletion of the requirement that the records be "investigatory," together with the language added to subparagraph (E) (see discussion below for Exemption 7), means that many of these law enforcement manuals should now be eligible for withholding under Exemption 7. There still remains a place in FOIA jurisprudence for the "high-2" rationale, however, for there are materials other than law enforcement manuals whose release might facilitate circumvention of a statute or agency regulation.

In Kaganove v. EPA, No. 86-C-5795, E.D. Ill, 1987), a district court judge found that crediting plans were not protected by Exemption 2. However, that decision was reversed by the Seventh Circuit, which noted, under a high-2 analysis, that "the objectives of government agencies. . .would be completely defeated by requiring disclosure of documents relating to the employment process that are effective only when kept confidential." Kaganove v. EPA, 856 F.2d 884, 889 (7th Cir. 1988).

In cases decided only two months apart, the Ninth and Tenth Circuits held that the phrase "internal personnel" modifies both "rules" and "practices." In both instances a chapter of the Audubon Society had requested records listing nesting sites of a bird on the endangered species list from the Forest Service. The agency had denied both requests on a high-2 rationale, arguing that release would make it easier for someone to locate and harm the birds in violation of the Endangered Species Act. The requesters had attempted to eliminate this ground for withholding by offering to enter into a non-disclosure agreement. The courts declined to hold that such an agreement could justify an agency's treating requesters differently, but ordered disclosure on the ground that the records were not "internal personnel practices," and thus did not satisfy Exemption 2's threshold test. Maricopa Audubon Society v. U.S. Forest Service, 108 F.3d 1082 (9th Cir. 1997); Audubon Society v. U.S. Forest Service, 104 F.3d 1201 (10th Cir. 1997).

The courts have interpreted "solely" in this context tomean "predominantly." E.g., Abraham & Rose, P.L.C. v. U.S., 138 F.3d 1075 (6th Cir. 1998).

The D.C. Circuit held that CIA filing and routing instructions were not covered. Allen v. CIA, 636 F.2d 1287 (D.C. Cir. 1980). The FBI's informant codes have been held to be withholdable under "low-2." E.g., Massey v. FBI, 3 F.3d 620 (2d Cir. 1993); Lesar v. Dept. of Justice, 636 F.2d 472 (D.C. Cir. 1980). More recently, this same court held that an agency properly withheld "internal time deadlines and procedures, recordkeeping procedures, instructions on which agency officials [for agency employees] to contact for assistance, and guidelines on when clearance from Washington is necessary for certain decisions" under this exemption. Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992).

The D.C. Circuit has held that low-2 does not protect the names and addresses of the personnel on an Air Force base. Schwaner v. Dept. of Air Force, 898 F.2d 793 (D.C. Cir. 1990). Strangely, the government did not assert Exemption 6 in this case.

Exemption 3. . .specifically exempted from disclosure by statute (other than 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

As originally passed in 1966 this exemption applied to records which were "specifically exempted from disclosure by statute." The current language printed above resulted from congressional dissatisfaction with the Supreme Court's decision in FAA Administrator v. Robertson, 422 U.S. 255 (1975).

The statute at issue in that case was 49 U.S.C. §1504, which authorizes the Administrator of the Federal Aviation Administration, upon objection to release from the submitter, to withhold certain records whenever he determines that "a disclosure of such information would adversely affect the interest of such person [i.e., the submitter] and is not required in the interests of the public." The D.C. Circuit had held that this was not an Exemption 3 statute because it place no limits on the Administrator's exercise of discretion to withhold. Robertson v. Butterfield, 498 F.2d 1031 (D.C. Cir. 1974). At this time there was a split among the courts of appeals which had considered this issue. For the contra view see People of State of California v. Weinberger, 505 F.2d 767 (9th Cir. 1974).

The Supreme Court reversed, holding that the granting of broad discretion did not disqualify a statute under Exemption 3, and that the rationale adopted by the D.C. Circuit would have the undesirable result of repealing numerous statutes by implication. "The discretion vested by Congress in the FAA, in both its nature and scope, is broad. There is not, however, an inevitable inconsistency between the general congressional intent to replace the broad standard of the former Administrative Procedure Act and its intent to preserve, for air transport regulation, a broad degree of discretion on which information is to be protected in the public interest in order to ensure continuing access to the sources of sensitive information necessary to the regulation of air transport." Robertson, supra, 422 U.S. at 266.

Congress expressed its dissatisfaction with the decision by including a provision in the Government in the Sunshine Act (P.L. 94-409, signed September 13, 1976, and effective 180 days later) which amended Exemption 3 to its current form. The legislative history of this act is compiled in Sunshine Act Source Book, a Joint Committee Print of the 94th Cong., 2d Sess.

The proposed amendment first appeared in H.R. 11656, which was introduced on February 3, 1976. The initial language was: "required to be withheld from the public by any statute establishing particular criteria or referring to particular types of information." Sunshine Act Source Book at 492. In the Judiciary Committee it was revised to read "required or permitted to be withheld. . ." Id. at 511. The Committee stated that the purpose of amending Exemption 3 was "to overrule the decision of the Supreme Court in Administrator, FAA v. Robertson. . ." Id. at 534. It listed the following statutes as examples of ones which would qualify under the amended Exemption 3: 42 U.S.C. §§2000e-5(b) and 2000e-8(b) (Civil Rights Act of 1964); 2 U.S.C. §437g(a)(3) (Federal Election Campaign Act); and 49 U.S.C. §1461 (Federal Aviation Act of 1958).

It then explained that the phrase "or permitted" had been added because the original proposal was "unduly restrictive" and would not have included "statutes which permit the agency to determine whether such information should be released or not." Id. at 557. It appears that, despite the above expression of intent, this version would not have overruled Robertson since the statute at issue there does permit withholding. This view is supported by Congressman Moorhead's statement during debate that "an unwise effort to reverse. . . Robertson. . .has been altered. Sunshine Act Source Book at 620.

The proposed amendment was further amended from the floor of the House to read: "specifically exempted from disclosure by statute (other than section 552b of this title) provided that such statute (A) requires that the matters be withheld from the public, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." Sunshine Act Source Book at 689.

Congressman McCloskey, the amendment's sponsor, explained that the requirements of clause (B) were intended to apply only to statutes which permitted withholding and would have no effect on ones which required it. He described the amendment's intent as being to overturn Robertson without disturbing broad statutes (i.e., ones which did not specify particular types of records) which required withholding.

When the bill went to conference, this version was retained except that the phrase "in such a manner as to leave no discretion on the issue" was added to clause (A). Sunshine Act Source Book at 790. The Conference Report indicates simply that "the conferees intend this language to overrule the decision of the Supreme Court in Robertson. . ." Sunshine Act Source Book at 807.

This legislative history is important because of the varying interpretations which have been placed on the significance of the modifications which took place. It is beyond the scope of this discussion to resolve the questions of whether they signified a broadening of the amended exemption's scope, and (if so) how much of one. The reader should be aware, however, that these disputes do exist.

It is generally agreed that under the current Exemption 3 a statute qualifies if it meets any one of three alternative criteria:

1. it requires that the records be withheld (i.e., gives the agency no choice); or

2. grants discretion on whether to withhold but provides sufficient specific criteria to guide the exercise of that discretion; or

3. describes with sufficient specificity the types of records to be withheld. American Jewish Congress v. Kreps, 574 F.2d 624 (D.C. Cir. 1978). Se also, Lam Lek Chong v. DEA, 929 F.2d 729 (D.C. Cir. 1991).

In Kreps the court held that 50 U.S.C. §2406(c) (Export Administration Act of 1969) was not an Exemption 3 statute. See also Church of Scientology v. U.S. Postal Service, 633 F.2d 1327 (9th Cir. 1980) (39 U.S.C. §410(c)(6)). For examples of decisions holding that statutes do qualify under Exemption 3 see Seymour v. Barabba, 559 F.2d 806 (D.C. Cir. 1977) (13 U.S.C. §9); Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978) (50 U.S.C. §§403g and 403(d)(3); Chamberlain v. Kurtz, 589 F.2d 827 (5th Cir. 1979) (26 U.S.C. §6103(c)); Founding Church of Scientology v. NSA, 610 F.2d 824 (D.C. Cir. 1979) (50 U.S.C. §402); Lee Pharmaceuticals v. Kreps, 577 F.2d 610 (9th Cir. 1978) (35 U.S.C. §122).

An interesting dispute arose as to whether 26 U.S.C. §6103 should be treated as an Exemption 3 statute, or as a statute which creates its own system for the handling of tax return information separate and apart from the FOIA. The former view, which has been accepted by almost all the circuits that have considered the question, clearly seems to be the correct one (e.g., implied statutory repeals not favored). However, the IRS continued to argue the other position, but abandoned that argument after the D.C. Circuit ruled in Church of Scientology of Cal. v. IRS, 792 F.2d 146 (D.C. Cir. 1986). See also Grasso v. IRS, 785 F.2d 70 (3rd Cir. 1986); Long v. IRS, 742 F.2d 1173 (9th Cir. 1984); Linsteadt v. IRS, 729 F.2d 998 (5th Cir. 1984); Currie v. IRS, 704 F.2d 523 (11th Cir. 1983). But see Cheek v. IRS, 703 F.2d 271 (7th Cir. 1983). In late 1988 the Tenth Circuit joined the majority, leaving the Seventh Circuit as the only one which had accepted the IRS argument. DeSalvo v. IRS, 861 F.2d 1217 (10th Cir. 1988).

In Medina-Hincapie v. Dept. of State, 700 F.2d 737 (D.C. Cir. 1983), the court held that 8 U.S.C. §1202(f) satisfied Clause A of Exemption 3, despite the fact that it gave the agency discretion to release covered records to a court, on the theory that all the clause required was that there be no discretion to release to members of the public.

In cases where a statute qualifies under criteria number 2 of Exemption 3 (i.e., statute grants discretion but provides sufficiently specific guidelines for its exercise), courts will not conduct a de novo review of the agency's exercise of its discretion. Retired R.R. Workers v. U.S. R.R. Retirement Bd., 830 F.2d 331 (D.C. Cir. 1987).

Another interesting issue was presented in J.P. Stevens & Co., Inc. v. Perry, 710 F.2d 136 (4th Cir. 1983) The court rejected the agency's claim that 42 U.S.C. §2000e-5(b) was an Exemption 3 statute with regard to an FOIA request from a party in an EEOC proceeding, despite the fact that it prohibited disclosures to members of the public.

The issue of whether the statute in question qualifies under Exemption 3 is not the only one presented by such an exemption claim. Assuming that the statute does qualify, the court must also determine (1) whether the agency complied with any procedural requirements in the statute, and (2) whether the records in question are among those covered by the statute. Sims v. CIA, 642 F.2d 562 (D.C. Cir. 1980), 709 F.2d 95 (D.C. Cir. 1983); Long v. IRS, 596 F.2d 362 (9th Cir. 1979); Brandon v. Eckard, 569 F.2d 683 (D.C. Cir. 1977). Review of these issues is also de novo, even if that means a de novo review of an agency head's determination that the statutory criteria for a discretionary withholding have ben satisfied. Long v. IRS, 742 F.2d 1173 (9th Cir. 1984).

An interesting aspect of this inquiry is presented in Public Citizen Health Research Group v. FDA, 704 F.2d 1280 (D.C. Cir. 1983). It was clear that 21 U.S.C. §360j(h) mandated that FDA not issue a summary of the information relating to the safety of intraocular lenses until after the issuance of an administrative order concerning the device. The district court had ruled (539 F.Supp. 1320 (D.D.C. 1982)) that this statute thus qualified under Exemption 3 with regard to the raw data (i.e., test results) on which the summaries were based. The court of appeals reversed, holding that "the statute does, to be sure, control the timing of disclosure of those summaries, but that does not, in itself, compel a conclusion that raw data constituting neither trade secrets nor confidential commercial information cannot be disclosed either before or after the release of agency-prepared summaries." 704 F.2d at 1285.

In Founding Church of Scientology v. Bell, 603 F.2d 945 (D.C. Cir. 1979), the court held that Rule 26(c) of the Federal Rules of Civil Procedure was not an Exemption 3 statute on the ground that these rules were not statutes. It used language which was broad enough to exclude the Federal Rules of Criminal Procedure as well.

That question was raised in Piccolo v. Dept. of Justice, Civ. No. 80-2315 (D.D.C. Apr. 22, 1981), in which the court relied on the above case to hold that Rule 6(e) of the Criminal Rules was not an Exemption 3 statute because it had not been "affirmatively adopted by the legislature as all statutes must be." Slip op. at 2, quoting 603 F.2d at 952. This decision was an extremely significant one since it is Rule 6(e) which protects the integrity of grand jury proceedings. The court reached its decision despite its recognition that this rule "was designed to preserve an important constitutional process, and that this process will be seriously endangered unless secrecy is ensured." Slip op. at 2.

Subsequently, however, the government moved for reconsideration of this portion of the order on the ground that Rule 6(e) was affirmatively adopted by Congress in the same manner as a statute. P.L. 95-78, 91 Stat. 319 (1977). The court agreed with this argument and on May 13, 1981, amended its April 22 order to hold that Rule 6(e) is an Exemption 3 statute. This result has also been upheld by a court of appeals. Fund for Constitutional Gov. v. National Archives, 656 F.2d 856 (D.C. Cir. 1981).

In Senate of Puerto Rico v. Dept. of Justice, 823 F.2d 574 (D.C. Cir. 1987), the court discussed at length the scope of Rule 6(e)'s coverage. It held that the rule did not justify withholding under the FOIA simply because a record has been considered by a grand jury; there also has to be some link so that disclosure of the record would tend to reveal proceedings of the grand jury. "Automatically sealing all that a grand jury sees or hears would enable the government to shield any information from public view indefinitely by the simple expedient of presenting it to the grand jury." 823 F.2d 582. Therefore, the government must provide "some affirmative demarcation of a nexus between disclosure and revelation of a protected aspect of the grand jury investigation." Id. at 584.

The court expanded on this holding in Washington Post Co. v. Dept. of Justice, 863 F.2d 96 (D.C. Cir. 1988), which involved a report prepared by Eli Lilly and Co. for reasons having nothing to do with a grand jury. A grand jury had subsequently subpoenaed it, however, and the government had attempted to justify withholding under Rule 6(e) and Exemption 3. The court rejected the attempt because no one would have known of the report's connection with a grand jury if the government had not publicized it. "The relevant inquiry is whether the document would reveal the inner workings of the grand jury, such as witness names, or the substance of testimony of the direction and strategy of the investigation . . .Moreover, the document itself must reveal the inner workings; the government cannot immunize a document by publicizing the link." 863 F.2d at 100.

In Crooker v. Parole Commission, 760 F.2d 1 (1st Cir. 1985), the government contended that 18 U.S.C. §4208 was an Exemption 3 statute which authorized withholding all presentence reports in their entirety. The court agreed that the statute qualified but held that it authorized withholding only the three specific categories of information set forth in subsection (c). "It seems unlikely that Exemption 3 would allow withholding of the presentence report simply because Section 4208 is a statute which `refers to particular types of matters to be withheld,' even if none of the types of materials specifically excluded under Section 4208(c) is involved." Id. at 3.

Another interesting and long-running dispute has been that over whether 28 U.S.C. §534 (criminal history information; e.g., rap sheets) is an Exemption 3 statute. This dispute, which was brought to a head in a suit filed in 1979 (Reporters Committee for Freedom of the Press v. Dept. of Justice, Civ. No. 79-3308 (D.D.C. 1985), presented the question of whether a statute could exempt records from disclosure within the meaning of Exemption 3 indirectly by expressly authorizing disclosure to certain specified recipients. On August 5, 1985, the district court finally ruled in this case that 28 U.S.C. §534 is an Exemption 3 statute. "This court is satisfied that pursuant to the above section, the information acquired and collected by the Attorney General may be released only to the agencies, organizations or states set forth in that section, and may not be released to the general public." Slip op. at 5.

The court of appeals reversed this decision, holding that the word "specifically" in Exemption 3 equates to "explicitly." "In other words, a statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure. We must find a congressional purpose to exempt matters from disclosure in the actual words of the statute. . .

not in the legislative history of the claimed withholding statute, nor in an agency's interpretation of the statute." Reporters Committee v. Dept. of Justice, 816 F.2d 730, 735 (D.C. Cir. 1987).

The Supreme Court has considered the amended Exemption 3 on several occasions. In its first post-amendment Exemption 3 case, the Court held that 15 U.S.C. §2055(b)(1) (Section 6(b)(1) of the Consumer Product Safety Act) was not an Exemption 3 statute. The argument in this case, however, involved primarily an interpretation of the Consumer Product Safety Act rather than the FOIA. The Court's opinion did reaffirm the principle that a statute which establishes mandatory conditions precedent to release can qualify as an Exemption 3 statute until those conditions are satisfied (even if compliance results in a conflict with the FOIA's administrative deadlines). CPSC v. GTE Sylvania, Inc., 447 U.S. 102 (1980).

Exemption 3 was also involved in Baldrige v. Shapiro, 455 U.S. 345 (1982), but both parties agreed that the confidentiality provisions of the Census Act, 13 U.S.C. §§8 and 9, met the exemption's requirements. The issue was thus whether the records in question were covered by these statutes. The court held that they were.

The high court most recently addressed Exemption 3 in the context of national security, ruling in CIA v. Sims, 471 U.S. 159 (1985) that Section 102(d)(3) of the National Security Act of 1947, 50 U.S.C. §403(d)(3), was a (b)(3) statute. The pertinent section of the Act stated that the Director of Central Intelligence "shall be responsible for protecting intelligence sources and methods from unauthorized disclosure." The Court found this language allowed the CIA to withhold any information on intelligence sources and methods, regardless of whether they were considered confidential.

Subsequent decisions have made it clear that, after Sims, the CIA's ability to protect intelligence sources and methods under Exemption 3 through this statute far exceeds its ability to do so under Exemption 1. "The Supreme Court has unequivocally held that the Director of Central Intelligence may protect all intelligence sources, regardless of their provenance." Fitzgibbon v. CIA, 911 F.2d 755, 762 (D.C.Cir. 1990). If the Director believes that a source or method should be protected, Sims decrees that courts should not second guess him despite the records' apparent harmlessness, presence in the public domain, or age. "The assessment of harm to intelligence sources, methods and operations is entrusted to the Director of Central Intelligence, not to the courts." 911 F.2d at 766.

The court also concluded that Sims means "that the CIA may withhold domestic sources as it would foreign sources." 911 F.2d at 764. See also, Hunt v. CIA, 981 F.2d 1116 (9th Cir. 1992); Maynard v. CIA, 986 F.2d 547 (1st Cir. 1993); Sullivan v. CIA, 992 F.2d 1249 (1st Cir. 1993).

In Dept. of Justice v. Julian, 486 U.S. 1 (1988), the Court held that neither Rule 32(c)(3), Federal Rules of Criminal Procedure, nor 18 U.S.C. §4208(c) of the Parole Act qualified as Exemption 3 statutes with regard to presentence reports in their entirety. It agreed that "both the Rule and the Parole Act specifically exempt from disclosure any information that relates to confidential sources, diagnostic opinions, and other information that may cause harm to the defendant or to third parties." Slip op. at 7. The Court refused to rule, however, that these provisions barred release of the entire report, particularly in light of the fact that both had recently been amended to ensure that presentence reports would be disclosed to their subjects.

Two of the most active Exemption 3 issues have involved 18 U.S.C. §1905 (referred to as the Trade Secrets Act) and 5 U.S.C. §552a (Privacy Act). These issues will be discussed below in the sections entitled "Reverse FOIA Cases" and "Interaction of the FOIA and the Privacy Act" respectively.

Exemption 4. . . .trade secrets and commercial or financial information obtained from a person and privileged or confidential.

One of the most hotly contested arguments about the original FOIA concerned the meaning of this exemption. Part of the problem stemmed from its grammatical ambiguities, and part from the fact that it was revised between the 88th and 89th Congresses with no corresponding revision of the interpretative remarks in the report. As originally proposed it protected "trade secrets and other information obtained from the public and customarily privileged or confidential." When revised to its present form, (1) the word "other" was replaced by the phrase "commercial or financial," (2) the word "customarily" was deleted, and (3) "any person" was substituted for "the public." For a discussion of these problems see 1967 Blue Book at 32-34.

In the initial guidance the Attorney General argued "that Congress neither intended to exempt all commercial and financial information on the one hand, nor to require disclosure of all other privileged or confidential information on the other." Id. at 34. The second part of this argument was conclusively rejected in Consumers Union v. Veterans Admin., 301 F.Supp. 796 (S.D.N.Y. 1969), and is clearly no longer viable.

The universally accepted view of Exemption 4 is that it includes two categories of records:

1. trade secrets; and

2. ones containing information that is

a. commercial or financial,

b. obtained from a person, and

c. confidential or privileged.

It cannot be overemphasized that to fall within this second category, records must contain information which satisfies all three of the criteria.

The Consumers Union decision also established the principle that the "obtained from a person" criterion excluded information generated by a government agency (i.e., because agencies are not included within the definition of "person" found at 5 U.S.C. §551(a)(2)). This holding was contra to the view expressed by the Attorney General in the 1967 Blue Book at 34.

This criterion, however, applies only to the second category of Exemption 4 records. Thus there is nothing in the statutory language which would place government-generated trade secrets (e.g., the formulae for the inks and paper used in making currency) outside Exemption 4. Surprisingly, there has been no significant case law or discussion concerning this argument.

In Public Citizen Health Research Group v. FDA, 704 F.2d 1280 (D.C. Cir. 1983), the court considered the "difficult" question of whether certain health safety data required to be submitted by pharmaceutical manufacturers constituted trade secrets within the meaning of Exemption 4. It rejected an argument that trade secret as used in the FOIA should be given the broad meaning set forth in the Restatement of Torts. It went on to define the term, "solely for the purposes of FOIA Exemption 4, as a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantiated effort." 704 F.2d at 1288. Accord, Anderson v. Dept. of Health and Human Services, 907 F.2d 936 (10th Cir. 1990).

In McDonnell Douglas Corp. v. Widnall, 57 F.3d 1162 (D.C. Cir. 1995) (a reverse FOIA case), the plaintiff argued that the prices the government had paid it for satellite launch services were a trade secret. The court remanded for consideration of all Exemption 4 issues, but stated: "the idea that a price charged to the government could be a `trade secret' appears passing strange to us." 57 F.3d at 1164. In McDonnell Douglas Corp. v. NASA, 180 F.3d 303 (D.C. Cir. 1999), this same court retreated from this dicta by drawing a distinction between the total contract price (not exempt) and line pricing (possibly exempt depending on the facts). It dismissed the statement quoted above from Widnall with the comment that "we did not address the [issue of] competitive harm in that case." 180 F.3d at 306.

Most Exemption 4 cases have involved a dispute over whether the information was "confidential." The judicial interpretation of that criterion has undergone significant modification. Originally, the courts defined the test as being a subjective one of whether the person from whom it was obtained would customarily make it public. E.g., Sterling Drug v. FTC, 450 F.2d 698 (D.C. Cir. 1971).

In April, 1974, however, the D.C. Circuit, in what is still the leading case interpreting Exemption 4, abandoned this subjective test for an objective one. It held that neither the fact that a submitter would not customarily make the information public, nor an agency's promises of confidentiality, while relevant, were enough to justify withholding. Its often-quoted standard is that

commercial or financial matter is "confidential" for the purposes of the exemption if disclosure of the information is likely to have either of the following effects: (1) to impair the Government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom it was obtained.

National Parks and Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).

These criteria are commonly referred to as Test 1 and Test 2. Because information must be furnished voluntarily to be eligible for withholding under Test 1, a large majority of the post-National Parks decisions have involved Test 2. Although there was very little case law, it was originally agreed that Test 1 cannot be used for records whose submission the government can compel, even when they are supplied voluntarily, thereby allowing the government to avoid the time and expense of forcing submission. See Public Citizen Health Research Group v. FDA, 539 F.Supp. 1320, 1326 (D.D.C. 1982).

In a subsequent decision, however, the court indicated that while the fact that submission is mandatory is "a factor in deciding if governmental access to information will be impaired by disclosure. . .it is not necessarily dispositive." Public Citizen, supra, 704 F.2d at 1291, n.29.

The court fleshed out this holding in Critical Mass Energy Project v. NRC, 830 F.2d 278 (D.C. Cir. 1987) (Critical Mass I). Plaintiff was seeking reports which a utility industry group prepared and gave voluntarily to the NRC. The agency did, however, have the authority to compel submission. The court began its analysis by recognizing that agencies' "may invoke exemption 4 on the basis of interests other than the two identified in our National Parks test." 830 F.2d at 282. It had the following to say concerning impairment:

Therefore, to show the requisite impairment of the information-gathering ability, the agency must persuade the court either (1) that cessation of INPO's voluntary submission of these reports would in fact deprive the agency of the information contained therein or (2) that alternative available means for obtaining the INPO reports would entail a significant risk that the value of the submitted reports would decrease.

Id. at 283.

Even if an agency has the power to compel submission, Test 1 of Exemption 4 could still apply, if the agency can show that "compelled production would entail qualitative impairment of the information contained therein." Id. at 284. In order to justify withholding under this theory, the agency "must spell out comprehensively both the nature of the information of which it fears it will be deprived, and the nexus between the disclosure sought by CMEP and the anticipated impairment." Id. at 286.

On remand, the district court expanded this rationale still further to hold that the agency could withhold the records under Exemption 4. It held that an agency could withhold under Test 1 of Exemption 4 despite the authority to compel production when it was clear that compulsion would adversely affect the agency's relationship with the private party and reduce the completeness of the information submitted. "The deterioration of the relationship, in this Court's opinion, represents a sufficient showing that NRC's efficiency and effectiveness would be impaired were it not permitted to honor its commitment to INPO to keep the INPO reports in confidence. . ." Critical Mass Energy Project v. NRC, 731 F.Supp. 554, 557 (D.D.C. 1990).

The court of appeals reversed, holding that the "possibility that disclosure of confidential [in the view of the submitter] records might create friction between a government agency and the preparer of those records" is not enough to justify withholding, even if established by firm evidence. Such a rule would, in the view of the court, allow the submitter of such records to determine their status under the FOIA by threatening to resist submission in the future if the agency were to release them." Critical Mass Energy Project v. NRC, 931 F.2d 939 (D.C. Cir. 1991) (Critical Mass II).

The court then went on to state: "We fully agree that the Commission would be justified in withholding the INPO reports if limiting their circulation were truly necessary to maintain their quality. However, we have searched the present record in vain for any evidence that would justify such a finding." 939 F.2d at 946. The court remanded for further consideration of the issue, noting that the continuing existence of some uncertainty was not fatal to a decision, since "the adverse effects of disclosure for purposes of Exemption 4 need not be proven with mathematical certainty." 939 F.2d at 974.

It subsequently vacated this decision, however, and granted the government's petition for rehearing en banc expressly for the purpose of considering whether the National Parks tests were still good law. Critical Mass Energy Project v. NRC, 942 F.2d 799 (D.C. Cir. 1991). On August 21, 1992, the court reaffirmed National Parks. Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992). It did modify Test 1, however, by establishing a rule that information submitted voluntarily met the Exemption 4 confidentiality requirement if it were of a kind that the submitter ordinarily did not make public. The burden of establishing the submitter's custom remains with the agency seeking to withhold the records.

A more difficult question is presented by situations in which participation in a program is voluntary (e.g., bidding on a government contract or submitting produce for grading), but submission of certain records is mandatory for those who wish to participate. There had not been much case law on this subject prior to Critical Mass, but in 1980 the First Circuit did hold that Test 1 could be used to withhold a technical proposal (part of a negotiated procurement) on the ground that release "would induce bidders to submit proposals that do not include novel ideas." Orion Research, Inc. v. EPA, 615 F.2d 551, 554 (1st Cir. 1980). There are still many questions with regard to Test 1 that have not yet been answered. The Department of Justice's Office of Information and Privacy has, however, taken the position in its guidance on how to interpret Critical Mass that the submission of records in instances such as bidding on government contracts is mandatory rather than voluntary for purposes of an Exemption 4 analysis. FOIA Update, Spring 1993 at 3-5. The District Court for the District of Columbia has adopted this position as a matter of law. See, e.g., McDonnell Douglas Corp. v. NASA, 895 F.Supp. 319 (D.D.C. 1995). There is no persuasive case law to the contrary.

In McDonnell Douglas Corp. v. NASA, 981 F.Supp. 12 15 (D.D.C. 1997), the court described the district court precedent in the D.C. Circuit as "uniformly [supporting] the notion that financial and commercial information, including CLINs and other key contract information, is `required' when submitted in a government contract bidding situation." The court of appeals declined to address this issue, however, because of its ruling that, regardless of whether the submission was voluntary or mandatory, the records involved were exempt under Test 2 of National Parks. McDonnell Douglas Corp. v. NASA, 180 F.3d 303 (D.C. Cir. 1999).

Still another variation of this question was presented in Washington Post Co. v. HHS, 865 F.2d 320 (D.C. Cir. 1989), which involved financial disclosure forms required to be filed by scientists who work as consultants for the National Cancer Institute. The government attempted to withhold under Exemption 4 on the ground that disclosure would discourage people from serving as consultants. The court held that the government had waived that argument in this case and did not rule on its validity, thus adding to the list of unanswered questions on the issue of whether some submitted records voluntarily.

Actually, despite the relatively large number of decided cases, there are also more questions than answers with regard to Test 2. No court has ever devised a comprehensive explanation of what is meant by the phrase "to cause substantial harm to the competitive position. . ." What is clear is that it is not sufficient merely to allege harm in conclusory terms. In addition to identifying the type (or types) of harm that might occur, the agency must be able to establish a causal basis for its assertion that release of the specific information in question is likely to cause this harm. A good outline of the type of proof an agency is required to present can be found in Pacific Architects & Eng., Inc. v Renegotiation Bd., 505 F.2d 383, 385 (D.C. Cir. 1974).

It appears that it is not sufficient under Test 2 to argue that release would "adversely affect the goodwill of. . .[the submitter] and further present opportunities for adverse publicity and unwarranted litigation. . ." Sears, Roebuck & Co. v. General Services Admin., 384 F.Supp. 996, 1007 (D.D.C. 1974). Accord, General Elec. Co. v. NRC, 750 F.2d 1394, 1402 (7th Cir. 1975).

In GC Micro Corp. v. Defense Logistics Agency, 33 F.3d 1109 (9th Cir. 1994), the court held that records which contractors were required to submit concerning their utilization of small disadvantaged businesses (i.e., SF 294's) did not satisfy Test 2. These records contained the following categories of information:

1. estimated subcontract dollars;

2. contractor's SDB subcontracting goals;

3. actual dollars paid to SDB subcontractors; and

4. actual percentage of work subcontracted to SDB's.

The court rejected the argument that release would place these contractors at a disadvantage in future solicitations because of its conclusion that "the data is made up of too many fluctuating variables for competitors to gain any advantage from the disclosure of the SF 294's." 33 F.3d at 1115.

There are, of course, cases in which the court has held that the information was protected by Test 2. E.g., Continental Oil Co. v. FPC, 519 F.2d 31, 35 (5th Cir. 1975):

The information to be furnished is detailed -- a contract by contract, field by field exposition of the petitioners' product marketing. Prices, names of purchasers, terms and times of price renegotiations must be disclosed [to the agency]. The likelihood that delivery of these intimate facts to petitioners' competitors would be harmful is apparent. Not only could it affect sales by enabling competitors to learn contract termination dates but it also affects product acquisition.

See also National Parks and Conservation Assn v. Kleppe, 547 F.2d 673 (D.C. Cir. 1976) (National Parks II).

For an example of an acceptable rationale for withholding under Test 2 see Timken Co. v. Customs Service, 531 F.Supp. 194, 198 (D.D.C. 1981):

The release of the pre-January 1, 1973, information is likely to. . .allow competitors to discern the strengths and weaknesses of the marketing strategies of these companies and target their weak points for attack. Competitors also could imitate the successful policies of these companies. . .Further, customer relations likely would be disrupted by the breach of confidentiality and increased competition from competitors.

Another illustrative decision on Test 2 is Public Citizen, cited above in the discussion of Test 1. The court held that Test 2 justified withholding where release of the test results required to be submitted to the FDA would allow competitors to receive the benefits of these costly testing programs (e.g., determine where to focus their research) without having to incur any of the expense. It also held that "substantial competitive injury is likely to befall a manufacturer" who is forced to disclose the sales volume of a particular item in his product line." 539 F.Supp. at 1330. On appeal the court noted that the type of harm recognized by Exemption 4 was limited to that which would result "from the affirmative use of proprietary information by competitors. Competitive harm should not be taken to mean simply any injury to competitive position, as might flow from customer or employee disgruntlement or from the embarrassing publicity attendant upon public revelations concerning, for example, illegal or unethical payments to government officials or violations of civil rights, environmental or safety laws." Public Citizen, supra, 704 F.2d at 1291, n.30.

In Greenberg v. FDA, 775 F.2d 1169, 1176 (D.C. Cir. 1985), the court held that the agency could use Test 2 to withhold test data which a company had to submit to obtain FDA approval and which was costly to generate. "We refuse to adopt a reading of FOIA exemption 4 that would allow competitors, who ordinarily must expend considerable amounts of time and money to acquire even an approximation of the FDA test, to benefit from agency disclosure at the expense of the submitters." However, since one of the judges who voted in the majority had died before the opinion was issued, the court later vacated the opinion and reconsidered its decision; what had once been the dissent became the majority opinion on reconsideration. 803 F.2d 1213 (D.C. Cir. 1986).

This same principle was at issue in Frazee v. U.S. Forest Service, 97 F.3d 367 (9th Cir. 1996), a reverse-FOIA case. Frazee was trying to block disclosure of the operating plan he had submitted in his winning proposal to manage recreational areas in a national forest. He argued that:

[he] had expended considerable cost and effort in preparing the Plan. . .and that the information in the plan is [his company's] individual and unique response to the Solicitation requirements. [He] also claim[ed] that the disclosure of the Plan would enable a competitor to copy and improve the Plan and thus put [him] at a competitive disadvantage in subsequent bidding competitions.

97 F.3d at 371. The court rejected these arguments that most of the information in the Plan was readily available from either personal information or easily obtainable printed sources.

In the Winter 1981 issue of FOIA Update at 5, the Justice Department advised that the basic terms and conditions of a government contract (i.e., what the government has agreed to buy and how much it has agreed to pay for it -- including intermediate price schedules) could not be withheld under Exemption 4. See, Acumenics Research & Tech. v. Dept. of Justice, 843 F.2d 800 (4th Cir 1988). See FAR §15, 1003(b)(1)(iv). But see discussion in McDonnell Douglas Corp. v. Widnall, and McDonnell Douglas Corp. v. NASA.

In the National Defense Authorization Act for Fiscal Year 1997, P.L. No. 104-201, Congress settled the issue of proposals submitted by potential contractors in response to a request for proposals. It established Exemption 3 protection for all such proposals except one "set forth or incorporated by reference in a contract entered into between the agency and the contractor that submitted the proposal." 10 U.S.C. §2305(g) (armed services acquisitions), 41 U.S.C. §303B(m) (civilian agency acquisitions).

There is some authority that Test 2 is not applicable to information submitted from a non-profit entity, even though the same information from a for-profit organization would be protectible, and even though it can be shown that release would cause financial injury to the submitter. Washington Research Project, Inc. v. HEW, 504 F.2d 238 (D.C. Cir. 1974). But see American Airlines v. Nat'l Mediation Board, 588 F.2d 863 (2d Cir. 1978), in which the court held that information submitted by a labor union could be withheld because the union, even though non-profit, was engaged in "trade or commerce."

Although the question has not been specifically addressed in the case law, it seems clear that Test 2 would still apply when the competitive injury would be to B, which had submitted the information to A, which in turn had submitted it to a federal agency.

The First Circuit has continued to break new ground in the Exemption 4 area. In 9 to 5 Organ. v. Board of Governors of Fed. Res., 721 F.2d 1 (1st Cir. 1983), it relied on a footnote in National Parks I (498 F.2d at 770, n.17) as indicating the D.C. Circuit's recognition of "the possibility that government interests other than the ability to obtain information in the future could justify non-disclosure in the future." 721 F.2d at 8. The court rejected, however, the government's advocacy of a return to an expectation of privacy standard, holding "that information will not be regarded as confidential under Exemption 4 unless it can be demonstrated that disclosure will harm a specific interest that Congress sought to protect by enacting the exemption." Id. at 9.

It expressly recognized that it was establishing the principle that Tests 1 and 2 from National Parks I were not the exclusive justifications for withholding records under Exemption 4. It also made clear, however, that the burden is on the government "to identify the particular interest, and, also, to demonstrate how that interest will be harmed by public disclosure of the specific information which had been requested." Id. at 10.

The records at issue here were anonymous salary survey data (of private firms) which were compiled and distributed to a subscription list by a private organization under a promise they would be kept confidential. Violators of this agreement would not receive future data. The district court had held that Test 1 was not satisfied because the data was not essential to the agency's functioning. On the basis of its expansive reading of National Parks I (described above), the First Circuit vacated this decision, holding that "in view of the legitimate governmental interest of efficient operation, it would do violence to the statutory purpose of exemption 4 were the government to be disadvantaged by disclosing information which serves a valuable purpose and is useful for the effective execution of its statutory responsibilities. Id. at 11.

In Public Citizen Health Research Group v. FDA, 185 F.3d 898 (D.C. Cir. 1999), the court engaged in an extremely confusing discussion of whether Exemption 4 required a balancing of the public interest (i.e., informing the public about the workings of government) that disclosure would serve, against the competitive harm likely to result from the disclosure. The court ultimately held that it does not, but its analysis raised more questions than it answered. E.g., at one point it stated that "the Congress has already determined the relevant public interest; if through disclosure `the public would learn something about the workings of th Government,'. . . the information should be disclosed unless it comes within a specific exemption. 185 F.3d at 904. Despite the apparent plain language, it is difficult to believe that the court actually meant that agencies did not have to disclose non-exempt records unless doing so would inform the pulic about the workings of the government.

The concurring opinion confuses the issue even more, for that judge described the majority opinion as meaning "that even if disclosure were the only way to prevent the loss of human life, that [fact] would count for nothing as against a showing by the [submitter] that disclosure would cause substantial harm to its competitive position." 185 F.3d at 907.

The word "privileged" was generally considered to have been rendered meaningless by the addition (described above) of the requirement that the information be "commercial or financial," for it is not often that commercial or financial information which is within one of the accepted privileges (e.g., doctor-patient) would be submitted to an agency. A court has upheld, however, the Department of the Interior's withholding of detailed statements by law firms of work they had done for the Hopi Indians as privileged. "The vouchers reveal strategies developed by Hopi counsel in anticipation of preventing or preparing for legal action to safeguard tribal interests. Such communications are entitled to protection as attorney work-product." Indian Law Resources Ctr. v. Dept. of Interior, 477 F.Supp. 144, 148 (D.D.C. 1979). In Sharyland Water Supply Corp. v. Block, 755 F.2d 397, 400 (5th Cir. 1985), the court refused to accept the argument that the FOIA "created a lender-borrower privilege," despite the fact that such a privilege is referred to in the original legislative history because this language had not been modified to reflect the addition of the words "commercial or financial" to the exemption itself. Earlier, however, the court set forth a valuable definition of the meaning of the word "privileged" within Exemption 4:

The FHA urges that the word "privileged" in subsection (b)(4) embraces only material shield by privilege recognized at common law or created by statute. An absolutely literal interpretation would, however, defeat any privilege, for virtually any privilege is waived by disclosure to a third party. To have any content, the statute must be read as referring to information that would have been privileged but for the requirement that it be revealed to the government.

Id. at 399-400.

There is also a holding "that materials which are the subject of a protective order under Rule 26(c)(7) [Federal Rules of Civil Procedure] are not privileged for purposes of FOIA Exemption 4 because the determination of whether documents" are exempt from disclosure must be made solely by applying the language of the exemption itself. Anderson v. Dept. of Health & Human Services, 907 F.2d 936, 945 (10th Cir. 1990).

In United Technologies Corp. v. FAA, 102 F.3d 688 (2d Cir. 1996), the Plaintiff was seeking design drawings for replacement parts to an aircraft engine it manufactured, which other companies had submitted to obtain a Parts Manufacture Approval so that they could manufacture and sell these replacement parts directly to owners of the engine. Plaintiff admitted "that it cannot prevail if it must proceed under Exemption 4 as if it were any other member of the general public." 102 F.3d at 691. It attempted to get around this concession by arguing that it already knew the design of the parts since one of the requirement for obtaining the Approval was that the parts be identical in design to those of the engine manufacturer, and that this fact created an analogous situation to that in which courts would not allow agencies to use Exemption 6 (or 7(C)) to withhold personal records from the subject. The court rejected this argument, stating that the only justifiable extension of this principle would be a general rule that agencies could not use an exemption to withhold records from a requester whom the exemption was designed to protect.

There has been extremely little litigation over the question of whether information is "commercial or financial." In the American Airlines case cited above, however, the court did rule that the number of authorization cards submitted by a union in support of a certification petition met this criterion. "`Commercial' surely means pertaining or relating to or dealing with commerce. Labor unions, and their representation of employees, quite obviously pertain to or are related to commerce and deal with the commercial life of the country." 588 F.2d at 870. See also Van Bourg, Allen, Weinberg & Roger v. NLRB, 728 F.2d 1270 (9th Cir. 1984).

There are two final points to remember about Exemption 4. The first is that the age of the information is always a factor; i.e., the fact that its release would be likely to cause substantial competitive harm when it is one year old does not guarantee it will be withholdable several years later. The second point is that information, no matter how detailed, is not confidential under Exemption 4 if released in an anonymous form.

"Reverse FOIA" Cases

As will be explained below, the term "reverse FOIA" case is technically an incorrect one. It is firmly entrenched, however, in the jargon of this area of the law and is still widely used to refer to a suit where the plaintiff is seeking to enjoin an agency from disclosing records -- a result which is the reverse of the normal FOIA suit. This discussion was placed immediately after that of Exemption 4 since this exemption is the one involved in virtually every reverse FOIA case. An analysis of 18 U.S.C. §1905 is also included, since that statute, Exemption 3, and reverse FOIA cases are now hopelessly intertwined.

The FOIA itself contains no provision for suits to block release, and one early question, therefore, was whether district courts even had jurisdiction to hear such cases. All courts presented with this question found that they did have jurisdiction, but the theories used varied greatly. This and other questions presented by early reverse FOIA cases are of academic interest only, however, as a result of the Supreme Court's decision in Chrysler Corp. v. Brown, 441 U.S. 281 (1979). We will note for historical purposes that the first reported reverse FOIA case was Charles River Park "A," Inc. v. HUD, 360 F.Supp. 212 (D.D.C. 1973) (almost six years after the FOIA's effective date), and then proceed to a brief discussion of 18 U.S.C. §1905, followed by an analysis of what the Court did and did not hold in Chrysler.

The text of 18 U.S.C. §1905 is:

Whoever, being an officer or employee of the United States or of any department or agency thereof, or agent of the Department of Justice as defined by the Antitrust Civil Process Act (15 U.S.C. §§1311-1314), publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined not more than $1,000 or imprisoned not more than one year, or both; and shall be removed from office or employment.

Its roots date all the way back to a statute passed in 1864 which applied only to information in the possession of tax officials. The sanctions in that original statute were the same as they are today. There is virtually no authoritative legislative history as to the exact nature of the disclosures Congress was seeking to prevent, and prior to Chrysler it was generally agreed that §1905 applied only to unauthorized disclosure (i.e., that it did not apply to disclosures which resulted from official agency action).

The two principal questions about §1905 which are of concern in this context are: (1) whether it is an Exemption 3 statute; and (2) the definition of its scope relative to that of Exemption 4. Some have also asserted that §1905 constituted a jurisdictional basis for reverse FOIA cases.

Before turning to Chrysler it is necessary to understand some of the other problems presented by reverse FOIA cases, and the unfortunate posture in which that particular case reached the Supreme Court. All agreed that for a plaintiff to prevail in a reverse FOIA case the records had to be exempt; if they were not, the FOIA itself required release. if the records were exempt, however, the question arose as to whether the agency could release them anyway (i.e., as an exercise of discretion). Thus, depending on the agency's position, a reverse FOIA plaintiff would have to establish both that the records were exempt and that release would be an abuse of discretion, or he might have to convince a court of only one (which one will vary) of these points.

There were, and still are, disagreements over both who should bear the burden of proof and the standard of review (i.e., de novo or arbitrary and capricious) on each of these issues. These arguments are highly significant for the plaintiff has a much harder task when he has to establish that the agency's decision is arbitrary and capricious. It should also be noted that some argued that the FOIA exemptions required withholding rather than permitting it.

The general state of the law prior to the Supreme Court's decision in Chrysler was typified by the court of appeals decision in that case. Chrysler Corporation v. Schlesinger, 565 F.2d 1172 (3rd Cir. 1977). The court held:

1. the FOIA exemptions do not require the withholding of any records;

2. 18 U.S.C. §1905 is not an Exemption 3 statute; and

3. regulations promulgated under authority of 5 U.S.C. §301 (a general records housekeeping statute), and providing for the discretionary release of records which could be withheld under the FOIA, satisfy §1905's authorized by law proviso.

The unfortunate point about the court of appeals' decision was that it reached no determination about whether the records were covered by either Exemption 4 or §1905. It saw no need to do so in light of its holding that even if they were covered by either, or by both, a discretionary release under the applicable agency regulations was permissible as a general principle and would not constitute an abuse of discretion. Consequently, the Supreme Court was presented with an assumption that the records were exempt and asked to decide whether release would constitute an abuse of discretion. It held that it might, thereby reversing the holding that it would not, and remanded for further consideration. In doing so, however, if decided many issues relating to reverse FOIA cases, while leaving other ones undecided.

The Court held that the FOIA exemptions permitted rather than required withholding. It also held that neither the FOIA or §1905 created a private right of action to enjoin any agency from releasing records (thus the term "reverse FOIA case is technically incorrect). The Court then dropped a bombshell, however, by holding that §1905 did apply to official agency decisions to release records, and that a plaintiff could get judicial review of these decisions under the Administrative Procedure Act by contending that some other statute (e.g., §1905) barred the release, making it unlawful under 5 U.S.C. §706(2)(A).

With regard to the standard of review to be used the Court said merely that "de novo review by the District Court is ordinarily not necessary to decide whether a contemplated decision runs afoul of Section 1905." 441 U.S. at 318. This issue is therefore still a hotly contested one.

The D.C. Circuit has ruled that de novo review of an agency's determination as to whether the records are exempt is not appropriate in a reverse FOIA context (i.e., review should be on the administrative record). NOW, Washington D.C. Chapter v. Social Sec. Admin., 736 F.2d 727 (D.C. Cir. 1984). The court went even further in Sharyland Water Supply Corp. v. Block, 755 F.2d 397, 399 (5th Cir. 1985), ruling expressly that the agency's findings of no substantial harm "must be accepted by us unless they are clearly erroneous."

Another court put a slightly different slant on this issue. it held that 5 U.S.C. §706(2)(A) required de novo review only when (1) the agency decision to release is adjudicatory in nature, and (2) its fact-finding procedures are inadequate. Unless both of those conditions are satisfied, the plaintiff in a reverse FOIA suit is entitled only to a review on an arbitrary and capricious standard. Pacific Architects & Eng. v. Dept. of State, 906 F.2d 1345 (9th Cir. 1990).

The Eighth Circuit has joined those holding that the proper standard of review in a reverse FOIA case is whether the agency's action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Daisy Mfg. Co. v. Consumer Product Safety Commission, 133 F.3d 1081 (8th Cir. 1998).

The Court in Chrysler declined to decide either of the principal issues involving §1905 listed above (i.e., whether it is an Exemption 3 statute and its scope relative to that of Exemption 4). It did, however, deal at length with the question of whether a release in accordance with agency regulations could be "authorized by law" within the meaning of §1905 and thus not violative of its restriction on release. In the most confusing part of its opinion the Court held that agency regulations could satisfy this requirement, but only when there was a sufficient "nexus" between their provisions for release and the legislative grant of authority under which they were promulgated. This standard is now commonly referred to as the nexus test. In Chrysler the Court held that this test had not been satisfied (ruling 5 U.S.C. §301 did not provide a sufficient nexus for discretionary release regulations). It also rejected the agency's reliance on both Section 201 of E.O. 11246 (and its statutory bases) and the FOIA itself.

In explaining the nexus test the Court stated that it was

clear that when it enacted these statutes [i.e., the bases of E.O. 11246], Congress was not concerned with public disclosure of trade secrets or confidential business information, and, unless we were to hold that any federal statute that implies some authority to collect information must grant legislative authority to disclose that information to the public, it is simply not possible to find in these statutes a delegation of the disclosure authority asserted by the respondents here. . .This is not to say that any grant of legislative authority to a federal agency by Congress must be specific before regulations promulgated pursuant to them can be binding on courts in a manner akin to statutes. What is important is that the reviewing court reasonably be able to conclude that the grant of authority contemplates the regulations issued.

441 U.S. at 306, 308.

As might be expected, there has been considerable disagreement over the definition of the nexus test. The major issue is whether it can be satisfied by an argument that the disclosure provided for is "necessary and proper" to the carrying out of the functions assigned in a legislative grant of authority. The affirmative of this argument appears to be supported by a series of decisions holding that there is a sufficient nexus between a grant of authority in 42 U.S.C. §1306(a) and disclosure regulations promulgated by HHS. Humana of Virginia v. Blue Cross of Virginia, 622 F.2d 76 (4th Cir. 1980); Parkridge Hospital, Inc. v. Califano, 625 F.2d 719 (6th Cir. 1980); St. Mary's Hosp. v. Harris, 604 F.2d 407 (5th Cir. 1979); St. Joseph's Hosp. v. Blue Cross, 614 F.2d 1290 (2d Cir. 1979).

It cannot be overemphasized that in Chrysler the Supreme Court was not asked to rule on whether the records were covered by Exemption 4 and therefore did not discuss the scope of this exemption at all. It also chose not to rule on whether they were covered by §1905 and, as discussed above, did "not attempt to determine the relative ambits of Exemption 4 and §1905, or to determine whether §1905 is an exempting statute within the terms of the amended Exemption 3. . ." 441 U.S. at 319, n.49.

In this footnote, however, the Court implied that Exemption 4 and §1905 were identical in scope. This view is supported by a substantial body of pre-Chrysler case law. After Chrysler, the government consistently maintained that §1905 is narrower in scope than Exemption 4 while plaintiffs argued that it is broader. In General Elec. Co. v. NRC, 750 F.2d 1394 (7th Cir. 1984), the court held that §1905 affords no protection beyond that of Exemption 4.

There was also a clear pre-Chrysler majority view that §1905 is not an Exemption 3 statute. In an appellate decision on this subject, the Fourth Circuit reversed two district court decisions that §1905 was an Exemption 3 statute but did not reach a decision itself. It did, however, reaffirm its view that §1905 and Exemption 3 are co-extensive. General Motors v. Marshall, 654 F.2d 294 (4th Cir. 1981).

In 1987 the D.C. Circuit issued a comprehensive opinion holding that (1) §1905 was not an Exemption 3 statute, and (2) its scope is co-extensive with that of Exemption 4. CNA Financial Corp. v. Donovan, 830 F.2d 1132 (D.C. Cir. 1987).

Earlier, President Reagan had satisfied one of the submitters' biggest concerns by issuing an executive order requiring agencies to establish procedures for notifying them if it planned to release information they had submitted, and for giving them an opportunity to object to disclosure. E.O. 12600 (52 Fed. Reg. 23781, June 25, 1987).

AT&T Information Systems v. GSA, 810 F.2d 1233 (D.C. Cir. 1987), involved an agency decision to release pricing data from a successful bid despite AT&T's objections. All parties agreed that there was not basis for GSA's decision in the stipulated administrative record. The district court had reached its decision in favor of the agency on the basis of a supplemental declaration. The court of appeals reversed, holding that the trial court's review, although de novo, must be limited to the administrative record. It therefore remanded "with directions to remand to GSA for development of its reasons for deciding not to withhold." 810 F.2d at 1236.

Occidental Petroleum Corp. v. SEC, 873 F.2d 325 (D.C. Cir. 1989), illustrates some of the difficulties which can arise over the adequacy of an administrative record. The district court (662 F.Supp. 496 (D.D.C. 1987)) had remanded for further proceedings on the ground that the record was inadequate for judicial review under 5 U.S.C. §706(2). The SEC appealed, arguing "that the district court impermissibly required it, on remand, to follow specified procedures beyond those required by law, contrary to Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 19 (1978)." 873 F.2d at 328.

The court of appeals rejected this argument and affirmed the holding, which places substantial burdens on an agency wishing to release commercial/financial records over the objections of the submitter:

1. The agency bears the "burden of production" with regard to a claim that the information in question is publicly available. The court's rationale was that the party making such a claim "is in the best position to point to the public sources and to identify the allegedly confidential information set forth therein." 873 F.2d at 344.

2. District courts can require agencies to produce document-by-document justification (i.e., a "reverse" Vaughn index) of a decision to release.

One final point to note is that after the Chrysler decision a new section, 9-2.025, was added to the United States Attorneys Manual. It states that "it is the policy of the Criminal Division not to prosecute government employees for a violation of 18 U.S.C. §1905 if the release of information in question were made in a good faith effort to comply with the Freedom of Information Act and the applicable regulations." The section also directs U.S. Attorneys not to institute a prosecution under §1905 before consulting with the Public Integrity Section of the Criminal Division.

Exemption 5. . . .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.

At the time of its enactment this exemption's purpose was described as being to prevent the harm that would be done to agency deliberations on important legal and policy matters if it were "forced to `operate in a fishbowl.'" Source Book I at 44. It was clearly intended to incorporate the traditional governmental evidentiary privilege known as the deliberative process privilege (or, alternatively, executive privilege). The exemption has proven to be a fluid one, however, and now also includes: (1) the attorney work-product privilege; (2) the attorney-client privilege (at least partially); and (3) certain qualified privileges under Rule 26 Fed.R.Civ.P. Each of these privileges will be discussed in turn.

Deliberative Process Privilege

As noted above, incorporating this privilege into the FOIA was Congress' primary goal in enacting Exemption 5, and it is still involved in a large majority of Exemption 5 cases. Its main purpose was described by the Supreme Court as being "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." Federal Open Market Committee v. Merrill, 443 U.S. 340, 359-60 (1979).

The Supreme Court has considered this privilege on four other occasions. Dept. of Justice v. Julian, 486 U.S. 1 (1988); NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975); Renegotiation Board v. Grumman Aircraft, 421 U.S. 168 (1975); and EPA v. Mink, 410 U.S. 73 (1973).

In Mink the Court confirmed the already generally recognized principle that reasonably segregable factual portions of records otherwise protected by the privilege had to be released; i.e., that the materials withheld must be deliberative rather than factual. There is an exception to this rule when the selection of factual data is an integral part of the deliberative process. Montrose Chemical Corp. v. Train, 491 F.2d 63 (D.C. Cir. 1974). This exception has proven to be a relatively narrow one. In Playboy Enterprises v. Dept. of Justice, 677 F.2d 931 (D.C. Cir. 1982), the court rejected an argument that the factual portions of a report were exempt solely because they represented the selection by the author. "Anyone making a report must of necessity select the facts to be mentioned in it; but a report does not become a part of the deliberative process merely because it contains only those facts which the person making the report thinks are material." 677 F.2d at 935.

This issue has continued to receive considerable attention. In ITT World Communications, Inc. v. FCC 699 F.2d 1219 (D.C. Cir. 1983), the court reaffirmed its holding in Playboy and added that, to withhold factual summaries as deliberative, an agency must show that they were "prepared for the sole purpose of evaluating the relative factual merits of different positions in pending proceedings. . .It is not enough for an agency to assert that factual material `may be used' in future deliberations; the agency must demonstrate that the material at issue is inextricably intertwined with a specific deliberative proceeding." 699 F.2d at 1239.

The court discussed this exception again in Paisley v. CIA, 712 F.2d 686 (D.C. Cir. 1983), and indicated that it "cannot be read so broadly as to undermine the basic rules; in most situations, factual summaries prepared for information purposes will not reveal deliberative processes and hence should be disclosed." 712 F.2d at 699.

1987 saw two more possibly contradictory D.C. Circuit considerations of this question. In Wolfe v. Dept. of Health and Human Service, 815 F.2d 1527 (D.C. Cir. 1987), the court, after a lengthy discussion, held that the FDA's "Regulations Log" was essentially a factual description of any given regulation's status, and thus not protected by Exemption 5. In doing so, it rejected the government's argument that it "abandon the fact/opinion distinction and instead ask whether disclosure would `disrupt' the decisionmaking process even if it did not reveal the substance of the predecisional recommendations." 815 F.2d at 1533.

Only a few days later, however, a different panel affirmed the withholding of a draft history of Air Force operations in Vietnam, despite concluding that it was essentially factual.

Courts soon came to realize, however, that use of the factual matter/deliberative matter distinction produced incorrect outcomes in a small number of cases. . .Congress enacted Exemption 5 to protect the executive's deliberative processes -- not to protect specific materials. . .Release of Sunderland's manuscript would disclose the alterations that the Air Force in its entirety, made during the process of compiling the history.

Dudman Communications v. Dept. of Air Force, 815 F.2d 1565, 1568-69 (D.C. Cir. 1987).

In possible response to this apparent conflict, the court granted the government's petition for rehearing en banc in Wolfe and reversed the panel decision. It ruled in Wolfe v. Dept. of Health and Human Services, 839 F.2d 768 (D.C. Cir. 1988), that records indicating what actions had been completed by FDA but were still awaiting a decision by the Secretary were protected by the deliberative process privilege. It said that disclosure would reveal "that proposals have been made and that these preliminary recommendations have been accepted or rejected, at various levels of review. Disclosure of the information requested in this case would certainly reveal policies prematurely." 839 F.2d at 774-75. The result would be an interference with the deliberative process by allowing private parties to protest what they considered unreasonable delays (i.e., would force operations in a fishbowl).

The D.C. Circuit revisited this issue several years later in Petroleum Information Corp. v. Dept. of Interior, 976 F.2d 1429 (1992):

These decisions, which caution against reflexive fact/opinion characterizations as they way to decide the full range of Exemption 5 cases, sound a common theme: To fall within the deliberative process privilege, material must bear on the formulation or exercise of agency policy oriented judgment. . .To the extent that predecisional materials, even if "factual" in form, reflect an agency's preliminary positions or ruminations about how to exercise discretion on some policy matter, they are protected under Exemption 5. Conversely, when materials could reasonably be said to reveal an agency's or official's mode of formulating or exercising policy-implicating judgment, the deliberative process privilege is inapplicable.

976 F.2d at 1429.

The Ninth Circuit views the fact/opinion issue as a functional one to be determined by whether or not disclosure would expose an agency's deliberative processes. Assembly of State of Cal. v. Dept. of Commerce, 968 F.2d 916 (9th Cir. 1992). In the same vein, the Eleventh Circuit stated in dicta that "with documents this short [one and a half pages] it is likely that disclosure of the factual material would also reveal the agency's deliberative process." Nadler v. Dept. of Justice, 955 F.2d 1479, 1491 (11th Cir. 1992). In National Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114 (9th Cir. 1988), the plaintiff sought draft forest plans and environmental impact statements. It countered the government's claim of deliberative process privilege by arguing that to come within this privilege records must "not only be predecisional and deliberative, but [must] also contain non-binding and advisory recommendations regarding law or policy; opinions or recommendations regarding facts or consequences of facts [are] not. . .exempt." 861 F.2d 1117. The court rejected this argument, holding that since the privilege includes all records whose disclosure would reveal the mental processes of decisionmakers, it protects records containing statements "which identify and assign priority to the issues deemed relevant to the formulation of policy." Id. at 1121.

Sears, however, remains today the most important decision concerning the deliberative process privilege. The Court began its analysis with a statement that "the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of agency decisions." 421 U.S. at 151. It then held that, while this purpose justified the withholding of predecisional deliberative materials, it supplied no grounds for withholding the final decision itself or post-decisional analyses or explanations of the decision. In Paisley v. CIA, supra, 712 F.2d at 698, the court set forth the following test for determining whether or not documents are predecisional: "To ascertain whether the documents at issue are predecisional, the court must first be able to pinpoint an agency decision or policy to which these documents contributed. The agency bears the burden of establishing the character of the decision, the deliberative process involved, and the role played by the documents in the course of that process." Documents still meet this test, however, despite being post-decisional in one process, if they are predecisional in another. City of Virginia Beach v. Dept. of Commerce, 995 F.2d 1247 (4th Cir. 1993).

An interesting variation of these questions was presented in Environmental Defense Fund v. OMB, 742 F.2d 1484 (D.C. Cir. 1984). The records at issue were ones submitted by EPA to OMB concerning EPA's budget recommendations. The district court had ruled that these records constituted EPA's final decision and were therefore not predecisional. The court of appeals reversed, holding that the records did not constitute a final decision for purposes of the FOIA, but rather "a decision to make a particular recommendation to another agency of the government that has ultimate responsibility for developing the President's budget proposals." Id. at 1497. Thus the records were predecisional and therefore exempt.

In Access Reports v. Dept. of Justice, 926 F.2d 1192 (D.C. Cir. 1991), the plaintiff had requested a memorandum written by a DOJ attorney and containing an analysis of proposed amendments to the FOIA. The district court had ruled that the government could not withhold the document under the deliberative process privilege because the attorney had prepared it "after the Department's decision to introduce the amendments, and because the Department could not `pinpoint' a later decision to which the document contributed. . ." 926 F.2d at 1193.

The court of appeals reversed, holding that the government's inability to tie the record to a particular decisionmaking process was

not fatal to [its] claim of privilege. . .Two of our earlier cases [Paisley and Senate of Puerto Rico] have indeed used that metaphor, but in context the language cannot be taken to require that the document contribute to a single discrete decision . . .Any requirement of a specific decision after the creation of a document would defeat the purpose of the exemption. At the time of writing the author could not know whether the decisionmaking process would lead to a clear decision, establishing the process, or fizzle, defeating it. Hedging his bets, he would be drawn into precisely the caution, or Aesopian language that the exemption seeks to render unnecessary.

926 F.2d at 1994, 1196.

But see, Maricopa Audubon Society v. U.S. Forest Service, 108 F.3d 1089 (9th Cir. 1997), where the court rejected "the government's primary argument that a continuing process of agency self-evaluation is enough to render a document `predecisional' and hold, instead, that the agency must identify a specific decision to which the document is predecisional." Although the court did not address the issue, it presumably would not require that the agency actually have made a decision, but only that there had been a specific decision under consideration at the time of the document's creation.

In Safecard Services, Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991), the court held that "surely any portion of the minutes recounting the Commissioner's explanation of why he or she voted in a particular way could not be predecisional, any more than would that Commissioner's separate written opinion, accompanying the final order."

Disputes also arise as to whether specific documents are decisional. In Schlefer v. United States, 702 F.2d 233, 237 (D.C. Cir. 1983), the court described the test as being: "first, do the documents serve as `law' in the specific case to which they are addressed, second, do they serve as `law'-like precedent in subsequent cases." The court also indicated that "decisional documents. . .do not become `deliberative' merely because some high agency official retains formal authority, deferentially or infrequently exercised, to overturn the decision." Id. at 238-39 n.11.

In a final note the court stated that memoranda sent up the chain of command were more likely to be deliberative than ones sent by a superior to a subordinate.

The court muddied the waters somewhat in ITT World Communications, supra, 699 F.2d at 1237-38 when it indicated that predecisional deliberative records reflecting "positions actually taken" might have to be disclosed if "the actual policy or legal positions adopted" were not otherwise disclosed to the public.

In Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997), the court held that "[t]he government's opinion about what is not the law and why it is not the law is as much a statement of government policy as its opinion about what the law is."

In an extremely important holding the Sears Court followed a line of lower court decisions to rule that "if an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum. . .can no longer be withheld under Exemption 5 ." 421 U.S. at 161.

This principle was stated in somewhat broader (at least arguably) terms by the D.C. Circuit: "Even if the document is predecisional, at the time it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public" (emphasis added), it loses its predecisional status. Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). It does not appear, however, that any court has yet held that a document has lost its Exemption 5 status because of "informal" adoption by an agency, and subsequent decisions indicate that it may have been merely loose language. A few months later the same court of appeals ruled that a document does not move outside Exemption 5 merely because the decisionmaker uses it as a part of the basis for his decision. Brinton v. Dept. of State, 636 F.2d 600 (D.C. Cir. 1980). The current rule is clearly contra to any adoption theory. Providence Journal Co. v. Dept. of Army, 981 F.2d 552 (1st Cir. 1992).

Subsequently the court rejected the argument that all memoranda which support the decision reached constitute the basis for the agency decision and therefore lose their Exemption 5 status. Common Cause v. IRS, 646 F.2d 656 (D.C. Cir. 1981). It strengthened this holding in Afshar v. Dept. of State, 702 F.2d 1125 (D.C. Cir. 1983), but also held that the adoption principle was not limited to final decisions concerning an agency's "working law."

A reference only to a report's conclusion does not, however, necessarily constitute adoption of its reasoning. Access Reports v. Dept. of Justice, 926 F.2d 1192, 1197 (D.C. Cir. 1991). Such adoption almost certainly must be express to result in a document's losing its status under the deliberative process privilege.

Obviously records generated after the agency has made a decision cannot be predecisional, but not all records generated before that time are predecisional for purposes of the deliberative process privilege. "Material which predates a decision chronologically, but did not contribute to that decision, is not predecisional in any meaningful way." Assembly of State of Cal. v. Dept. of Commerce, 968 F.2d 916, 921 (9th Cir. 1992).

Coastal States also contains an excellent discussion of the deliberative process privilege generally and of the tests to determine whether a document is properly within its scope. 617 F.2d at 866. Included within this discussion is a reference to "drafts" as examples of predecisional documents which are generally protected by the deliberative process privilege. See also King v. IRS, 684 F.2d 517 (7th Cir. 1982). This protection is not automatic, however, and the agency must show that the draft is truly deliberative in nature. Arthur Andersen & Co. v. IRS, 679 F.2d 254 (D.C. Cir. 1982).

There was a split over the issue of whether presentence reports are within the deliberative process privilege. Durns v. Bureau of Prisons, 804 F.2d 701 (D.C. Cir. 1986) (privilege encompasses reports); Julian v. Dept of Justice, 806 F.2d 1411 (9th Cir. 1986) (privilege does not encompass the reports). This split was decided by the Supreme Court in 1988. It held that they were not. Dept. of Justice v. Julian, 486 U.S. 1 (1988).

For an example of a court striking down an agency's claim of this privilege as being too conclusory, see Senate of Puerto Rico v. Dept. of Justice, 823 F.2d 574 (D.C. Cir. 1987).

This privilege was formally recognized as being included within Exemption 5 by the Supreme Court in Sears: "Whatever the outer boundaries of the attorneys' work-product rule are, the rule clearly applies to memoranda prepared by an attorney in contemplation of litigation which set forth the attorney's theory of the case and his litigation strategy." 421 U.S. at 154.

Subsequent decisions have made it even clearer that this privilege's protection is "limited to documents prepared in [reasonable] contemplation of litigation. . .[for] if an agency were entitled to withhold any document prepared by any person in the Government with a law degree simply because litigation might someday occur, the policies of the FOIA would be largely defeated." Coastal States, supra, 617 F.2d at 864-65. In that case the court held the privilege inapplicable because there was no indication of "even the dimmest expectation of litigation. . . ." Id. It rejected the argument that the fact that any audit could result in litigation was sufficient justification for invoking the privilege. See Chilvis v. SEC, 673 F.2d 1205, 1211 (11th Cir. 1982), for an excellent analysis of the privilege.

Such an investigation would have to be, and typically would be, based upon suspicion of specific wrongdoing and represent an attempt to garner evidence and to build a case against the specific wrongdoer.

In a somewhat surprising decision, the D.C. Circuit held that this privilege was no longer applicable when the litigation for which the records were prepared (and any related cases) is completed. Grolier, Inc. v. FTC, 671 F.2d 553 (D.C. Cir. 1982). The Supreme Court reversed this decision, so "attorney work-product is exempt from mandatory disclosure without regard to the status of the litigation for which it was prepared." FTC v. Grolier, 462 U.S. 19 (1983). However, as a result of a change in FOIA policy under the Clinton administration, the Department of Justice's Office of Information and Privacy has encouraged agencies to release such attorney work product material at the conclusion of any litigation to which it pertains.

It also does not end because an attorney has recommended against initiating any litigation. "The reports and recommended action with respect to the status of an investigation submitted before any final decision is made as to the course of an investigation qualify as documents prepared in anticipation of litigation." A. Michael's Piano, Inc. v. FTC, 18 F.3d 138, 146-47 (2d Cir. 1994).

In Safecard Services, Inc. v SEC, 926 F.2d 1197 (D.C. Cir. 1991), the court held that a law enforcement agency must satisfy the "reasonable contemplation of litigation" requirement "by demonstrating that one of its lawyers prepared a document in the course of an investigation that was undertaken with litigation in mind. . . ." 926 F.2d at 1202.

The court qualified this ruling by stating that it was not holding "that every document prepared [by an attorney] during an investigation is necessarily prepared in anticipation of litigation." 926 F.2d at 1203. It did not, however, give any examples of documents which would not qualify. See Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992).

After some uncertainty, it now seems clear that the privilege does include factual portions. A. Michael's Piano, Inc. v. FTC, 18 F.3d 138 (2d Cir. 1994); Norwood v. FAA, 993 F.2d 570 (6th Cir. 1993); Martin v. Office of Special Counsel, MSPB, 819 F.2d 1181 (D.C. Cir. 1987). But see, Fine v. Dept. of Energy, 823 F.Supp. 888 (D.N.M. 1993).

It can also include internal memoranda in which attorneys "advise the agency of the types of legal challenges likely to be mounted against a proposed program, potential defense available to the agency, and the likely outcome." Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d 124, 127 (D.C. Cir. 1987).

Attorney-Client Privilege

In 1977 the D.C. Circuit held that Exemption 5 includes the attorney-client privilege, but that, while this privilege is available to government agencies, it "does not allow the withholding of documents simply because they are the product of an attorney-client relationship. . . . It must also be demonstrated that the information [furnished by the client] is confidential. If the information has been or is later shared with third parties, the privilege does not apply." Mead Data v. Dept. of Air Force, 566 F.2d 242, 253 (D.C. Cir. 1977). Similarly, the privilege does not include information submitted by an outside third party rather than the client agency. Schlefer v. United States, 702 F.2d 233 (D.C. Cir. 1983).

In In re Lindsey, 148 F.3d 1100 (D.C. Cir. 1998), the court limited the governmental attorney-client privilege to situations in which agency executives seek legal advice from a professional legal adviser acting in that capacity. It also held that "[w]hen government attorneys learn, through communications with their clients, of information related to criminal misconduct, they may not rely on the government attorney-client privilege to shield such information for disclosure to a grand jury." 148 F.3d at 1114.

The purpose of this privilege is to encourage frankness by a client in communicating with his attorney; thus it protects communications from the attorney to the client only to the extent necessary to protect confidential information furnished by the client. See Brinton v. Dept. of State, 636 F.2d 600 (D.C. Cir. 1980).

It has also been held that confidentiality can be lost by circulation within an agency beyond those having a need-to-know, and that an agency must show that it took affirmative steps to restrict dissemination. Coastal States, supra, 617 F.2d at 863. The analysis in any given situation is a fact-specific one. U.S. v. Metropolitan St. Louis Sewer Dist. (MSD), 952 F.2d 1040 (8th Cir. 1992).

In a non-FOIA context, the Supreme Court held that the attorney-client privilege survives the client's death. Swindler & Berlin v. U.S., 524 U.S. ___, 118 S.Ct. 2081 (1998).

Rule 26(c)(7) Fed.R.Civ.P.

In Federal Open Market Committee, supra, the Supreme Court held that while Exemption 5 did not include every civil discovery privilege, it did include the qualified one in this rule providing that "a trade secret of other confidential research, development, or commercial information not be disclosed, or be disclosed in a designated way." This privilege would, therefore, include "confidential information generated [by a government agency] in the process of awarding a contract" until the contract is awarded or the offer withdrawn. 443 U.S. at 360. For application of this privilege, see Government Land Bank v. GSA, 671 F.2d 663 (1st Cir. 1982); Hack v. Dept. of Energy, 538 F.Supp. 1098 (D.D.C. 1982).

Rule 26(b)(4) Fed.R.Civ.P.

Using the same rationale as the Supreme Court above, the Fifth Circuit held that Exemption 5 also incorporated the qualified privilege for records generated by an expert witness. Hoover v. Dept of Interior, 611 F.2d 1132 (5th Cir. 1980).

In Burka v. Dept. of Health and Human Services, 87 F.3d 508 (D.C. Cir. 1996), the court held that while Exemption 5 incorporates all generally recognized civil discovery privileges, the test is not whether the agency can craft a set of hypothetical facts under which a court might deny discovery. "We are inclined to the view that to 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." 87 F.3d at 516.

Conclusion

There remain some general points to be made about Exemption 5. One relates to the effect of the requirement that records be intra- or inter-agency ones. It has been established that this language does not automatically exclude all records generated by non-agency personnel. For example, reports generated by outside consultants can be withheld if they satisfy Exemption 5's other requirements. Wu v. National Endowment for Humanities, 460 F.2d 1030 (5th Cir. 1972). This principle has been extended to appraisals prepared by independent fee appraisers. Hoover, supra.

In 1980 the D.C. Circuit gave an extremely broad reading to this requirement:

The exemption was created to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decisionmakers without fear of publicity. . .Congress apparently did not intend "inter-agency" and "intra-agency" to be rigidly exclusive terms, but rather to include any agency document that is part of the deliberative process. . .When an agency record is submitted by outside consultants as part of the deliberative process, and it was solicited by the agency, we find it entirely reasonable to deem the resulting document to be an "intra-agency" memorandum for purposes of determining the applicability of Exemption 5.

Ryan v. Dept. of Justice, 617 F.2d 781, 789-90 (D.C. Cir. 1980).

On the basis of this rationale the court held that various Senators' responses to a Justice Department request for recommendations (on nominees for federal judgeships) satisfied Exemption 5's threshold requirement.

In Klamath Water Users v. Dept. of the Interior, 189 F.3d 1034 (9th Cir. 1999), however, the court held that the rationale in Ryan does not apply when the outside party has a direct interest in the subject/issue on which the government is requesting his/her input, even if that input is both pre-decisional and deliberative.

In Dow Jones & Co. v. Dept. of Justice, 917 F.2d 571 (D.C. Cir. 1990), the court held that communications from Executive Branch agencies to Congress, and designed to aid the latter in its deliberations, do not satisfy the intra- or inter-agency requirement. This requirement is a flexible one, but it is limited to records which "are part and parcel of the agency's deliberative process." 917 F.2d at 575.

The record at issue in Dow Jones & Co., Inc. v. Dept. of Justice, 908 F.2d 1006 (D.C. Cir. 1990), was a letter from the Department to the House Ethics Committee describing a probe into possible wrongdoing by a Congressman. The Department had already declined prosecution, but successfully argued to the district court that Ryan established the principle that communications from the Executive Branch to Congress were inter-agency ones for purposes of Exemption 5. The court of appeals did not read Ryan so broadly, holding that the key to that decision was the fact that the questionnaires sent to Congress were returned to the Department for use in its deliberative processes. In this case the Department had ended its deliberative process -- whether or not to prosecute. "For that reason, we do not think that the Department's letter to the House Ethics Committee can be withheld under Exemption 5." 908 F.2d at 1010.

In County of Madison v. Dept. of Justice, 641 F.2d 1036 (1st Cir. 1981), however, the court declined to extend the Ryan rationale to settlement negotiations between the government and an outside party. It distinguished this case on the ground that in ones such as Wu and Ryan "the agency contacted non-payroll individuals to obtain information for the benefit of the agency . . .[while here] the Oneidas approached the government with their own interest in mind." 641 F.2d at 1040. The fact that the government also benefits from settlement negotiations was held not to be enough to satisfy the statutory language.

Similarly, in Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 982, 985 (9th Cir. 1985), the court ruled that "documents submitted to the NLRB by private parties in the course of an unfair labor practices investigation are not internal agency documents."

This area of the law remains a fluid one. In Formaldehyde Institute v. Dept. of Health and Human Services, 889 F.2d 1118 (D.C. Cir. 1989), the court considered a situation when employees of a private journal forwarded (to the agency) comments on an article submitted by the agency for possible publication. The court upheld withholding on the ground that these comments were clearly part of an agency deliberative process to determine "whether and in what form to publish the report in the name of the agency." 889 F.2d at 1124. The plaintiff tried to distinguish this case from earlier ones on the ground that the agency did not solicit the comments. The court responded that receipt of such reviews from the journal's staff was clearly an anticipated result of the agency's submission of an article, and that there was a mutual understanding or confidentiality between the agency and the journal which provides the reviews. "The existence of such an understanding is more than enough to hold that the Review Letter is part of the deliberative process of the agency." 889 F.2d at 1124.

Another court expressed the threshold test for Exemption 5 as a functional inquiry as to whether the agency has a particular need for outside information in its deliberative processes. If it does not, the non-governmental records are not intra-agency memoranda for purposes of Exemption 5. "We do not hold that a private party furnishing the government with information primarily for its own advantage can never meet this functional test, but here it is clear that Armstrong did not stand in any consultative or advisory role to the ICC that would justify withholding these documents from disclosure." State of Texas v. ICC, 889 F.2d 59, 62 (5th Cir. 1989).

Another point to be noted is that the analogy between Exemption 5 and discovery principles is not an exact one. Thus a requester's particularized need for the records, while relevant in a discovery context, is not a proper consideration under the FOIA. FTC v. Grolier, 462 U.S. 19 (1983); Swisher v. Dept. of Air Force, 660 F.2d 369 (8th Cir. 1981).

The D.C. Circuit expanded this reasoning to hold that presentence reports, although routinely available to their subjects, were protected by Exemption 5 because they were not routinely available to others during litigation. Durns v. Bureau of Prisons, 804 F.2d 701 (D.C. Cir. 1986). The Supre