This paper was presented at the Association for Education in Journalism and
Mass Communication in San Antonio, Texas August 2005.
If you have questions about this paper, please contact the author
directly. If you have questions about the archives, email
rakyat [ at ] eparker.org. For an explanation of the subject line,
send email to
[log in to unmask] with just the four words, "get help info aejmc," in the
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(Feb 2006)
Thank you.
Elliott Parker
====================================================================
Blocking the Sunshine: How the FOIA's "Opaque" Deliberative-Process
Exemption Obstructs Access to Government-Held Information
By
Martin E. Halstuk, Ph.D.
Submitted to the Law Division
of the AEJMC annual conference,
San Antonio, Tex., 2005
Martin E. Halstuk, Ph.D.
Assistant Professor of Communications and Journalism
The Pennsylvania State University
304-A James Building
University Park, PA 16802-5101
(814) 863-7990
<[log in to unmask]>
Blocking the Sunshine: How the FOIA's "Opaque" Deliberative-Process
Exemption Obstructs Access to Government-Held Information
(Abstract)
By Martin E. Halstuk, Ph.D.
Penn State University
This paper seeks to shed light on FOIA Exemption 5, which applies to
"inter-agency or intra-agency" documents. The purpose of this
exemption is to protect the government during litigation. Therefore,
it embodies several common law privileges from discovery, mainly the
deliberative-process privilege, the attorney work-product privilege
and the attorney-client privilege. This research project focuses on
the deliberative-process privilege because it is the most broadly
worded and most often invoked of the Exemption 5's privileges. This
paper concludes that courts typically broadly construe the
exemption's deliberative-process protection while they narrowly
interpret the FOIA-related public interest, to the detriment of
government transparency and the public's right to know.
AEJMC-Blocking the Sunshine 6
Blocking the Sunshine: How the FOIA's "Opaque" Deliberative-Process
Exemption Obstructs Access to Government-Held Information
Introduction
Congress passed the Freedom of Information Act (FOIA)[1] to create a
judicially enforceable right of public access to government-held
information because lawmakers understood that citizens in a
representative democracy must have access to official records and
documents in order to make informed decisions.[2] Congress also
acknowledged that under some circumstances, secrecy is necessary for
government to operate effectively and to protect the privacy of
individuals and businesses.[3] Lawmakers therefore created nine FOIA
exemptions that cover certain categories of information that agencies
may—but are not required to—withhold.[4]
TpsE, wa"[5] Tatrcdac .[6] Thrfsod a)bao[7]
ThasrnE ,ae . Fsththftuj,sori[8] Fnc[9] Sc tFe,, , ibcj.[10] Iuu
tae[11] TedEt .[12] FhtitE[13] FEiote ,[14] yiileicl[15]
The purpose of this paper, therefore, is to illuminate the meaning of
Exemption 5 and its deliberative-process privilege and clarify its
"often blurred" boundaries.[16] Part I of this paper outlines the
FOIA and Exemption 5 generally. Part II examines the
deliberative-process privilege and discusses how its opaque language
has been interpreted and applied by the courts.[17] This paper
concludes that as a result of Exemption 5's elusive meaning, courts
typically broadly construe the exemption's deliberative-process
protection while they narrowly interpret the FOIA-related public
interest, to the detriment of government transparency and the
public's right to know.
I. The FOIA and Exemption 5
The FOIA was signed into law by President Lyndon Johnson on July 4,
1966.[18] The statute's legislative history reflects a strong
presumption of "full agency disclosure."[19] Congress made clear that
the FOIA is grounded on the accountability principle of
democracy—that the public has "a right to know what its government is
doing" in the name of the people.[20] Congress has repeated FOIA's
presumption of government transparency in a series of amendments
passed over the years to strengthen the law,[21] and the Supreme
Court has consistently recognized Congress' intent to provide as much
government openness as possible.[22]
The FOIA grants the public a statutory right to examine records held
by the dozens of executive-branch federal agencies as well as the
cabinet departments.[23] The FOIA makes records available to "any
person" upon request,[24] and FOIA requesters "do not have to explain
or justify their requests."[25] The statute also requires the
government to publicize certain information without a request being
necessary[26] in order to prevent enactment of administrative "secret
law"—rules and regulations known by government officials but not the
general public who use the FOIA.[27] For example, federal agencies
must publish their organizational plans and regulations in the
Federal Register and on the Internet.[28]
Because Congress recognized the need for confidentiality in certain
agency functions, lawmakers enumerated nine categories of information
that are exempt from the FOIA's disclosure requirements.[29]
Exemption 5 states that the statute does not apply to matters that
are "[30] Caiss[31]
Ttt iowever, the Supreme Court has declined to define the terms
"i."[32] Consequently, as noted by the Justice Department's Office of
Information and Privacy, courts have broadly construed Exemption 5's
"somewhat opaque language" along with "its sometimes confusing
threshold requirement."[33] In fact, the Supreme Court has made it
clear that Exemption 5 is not limited only to those discovery
privileges explicitly mentioned in its legislative history.[34] For
example, the Court extended Exemption 5 to protect factual statements
by air-crash eyewitnesses and by air-crash survivors to ensure that
they talk freely and candidly to investigators.[35] This ruling
represented a very broad interpretation of the deliberative-process
privilege because the privilege traditionally has protected
recommendations and statements of opinion—but not factual information
contained in a report or recommendation.[36]
More recently, the D.C. Circuit held in May 2004 that Department of
Justice communications to the President or to the Office of the
President constituted inter-agency documents and were, therefore,
shielded from disclosure.[37] This case concerned a FOIA request
seeking Department of Justice recommendations in connection with
controversial pardons—including one for fugitive financier Marc
Rich—granted by Bill Clinton in his final days as President.[38]
The judiciary's broad construction of "inter-agency or intra agency"
documents has its roots in Ryan v. U.S. Dep't of Justice, a 1980 D.C.
Circuit case in which the court of appeals held that "Congress
apparently did not intend 'inter-agency or intra-agency' to be
rigidly exclusive terms, but rather to include [nearly any record]
that is part of the deliberative process."[39] The Department of
Justice, which provides legal representation for agencies that are
sued for refusing FOIA requests, said that the D.C. Circuit's Ryan
rule broadly applies not only to documents generated outside an
agency but also to documents "created through agency initiative,
whether purchased or provided voluntarily without compensation."[40]
In the most recent Supreme Court ruling on Exemption 5,[41] the Court
in 2001 shed some light for the first time on what constitutes a
i[42] In Department of the Interior v. Klamath Water Users Protective
Association, the conflict focused on documents pertaining to the
decision-making process for water allocation for irrigation and other
uses in a region of Oregon where water is scarce. Specifically, the
FOIA request was for communications that passed between certain
Native American tribes and the Department of the Interior concerning
tribal interests in water allocation.[43] The Department of the
Interior developed the Klamath Project Operation Plan to allocate
water for competing uses and competing water users, including Native
American tribes in Oregon.[44] The Department asked the Klamath
tribe, along with other tribes, to consult with the department and
assess the plan's impact on tribal resources.[45] During this
process, memoranda were exchanged between the Department of the
Interior and the Bureau of Indian Affairs, the latter of which is
responsible for land and water administration held in trust for
Native American tribes.[46] These memoranda were requested by the
Klamath Water Users Protective Association, a nonprofit association
of water users in the Klamath River Basin, whose interests compete
with tribal interests because of scarcity of water.[47] The
government released several of the memos but withheld others as
exempt under both the deliberative-process privilege and the attorney
work-product privilege of Exemption 5.[48]
The Klamath Water Users Protective Association sued to obtain the
other documents, but the federal district court upheld the
government's decision.[49] The Court of Appeals for the Ninth
Circuit reversed the district court's decision, holding that
Exemption 5's threshold requirement did not include communications
between a governmental agency and an "outside consultant" who has a
"direct interest" in the subject of its consultation with the
agency.[50] The Supreme Court unanimously affirmed the Ninth
Circuit's ruling and rejected the government's view that the Klamath
Tribe was acting merely as an objective and neutral
consultant.[51] Justice David H. Souter, who wrote the opinion for
the Court, held that the tribes were self-advocates "seeking a
Government benefit at the expense of other applicants."[52]
However, the Supreme Court's holding is not as disclosure-friendly as
it may appear. The Klamath Court significantly narrowed the scope of
the Ninth Circuit's rationale: The Ninth Circuit ruled that the
deliberative-process privilege does not protect communications
prepared by outside consultants with a direct interest in the outcome
of a decision.[53] But the Supreme Court held that the
deliberative-process privilege does not exempt an outside consultant
if the consultant has a direct interest in the outcome—and there are
other parties with competing interests in "benefits inadequate to
satisfy everyone."[54]
The Klamath Court thus only slightly narrowed the D.C. Circuit's Ryan
rule, which broadly construed "inter-agency and intra-agency"
documents for purposes of exemption.[55] Indeed, the Court left the
door open to Exemption 5 protection for documents provided to
agencies by outside consultants who may have a direct interest in an
agency decision.[56] In the years since Klamath was handed down,
lower courts have exempted documents pertaining to the Webster
Commission's independent federal investigation into the IRS Criminal
Investigation Division;[57] materials that were part of a Department
of Agriculture investigation into Forest Service culpability in a
Montana national forest wildfire;[58] and documents related to
development plans for protected lands in Pennsylvania.[59]
Although the Klamath Court distinguished between neutral, outside
consultants and outside consultants who have a conflicting interest
in the outcome of the decision-making process, Exemption 5's
threshold requirement remains unclear as to exactly what constitutes
an "inter-agency or an intra-agency" document.[60] Consequently, as
Harry A. Hammitt and his co-authors observed, "a high judicial gloss
has been placed" on Exemption 5's statutory language in general,[61]
and its deliberative-process privilege, with its many gray areas, in
particular.
II. Deliberative-Process Protection
Of the three major privileges embodied in Exemption 5, agencies most
often invoke the deliberative-process privilege.[62] In crafting the
deliberative-process privilege—which derives from, and is similar to,
executive privilege—Congress intended to protect recommendations and
opinions that are part of the deliberative, decision-making process
of the federal agencies.[63] The Department of Justice, which is
charged with overseeing FOIA compliance, noted that the
deliberative-process privilege does not merely protect working
documents from disclosure but also safeguards the "the integrity of
the deliberative process itself where the exposure of that process
would result in harm."[64] As James T. O'Reilly observed, Exemption
5's deliberative-process privilege protects the "mental processes"
integral to subjective decision-making.[65]
The documents ordinarily covered by the deliberative-process
privilege include "advisory opinions, recommendations, and
deliberations comprising part of a process by which governmental
decisions are formulated."[66] In addition, briefing materials—"such
as reports or other documents that summarize issues and advise
superiors"—are protected under the privilege as well.[67] Early
drafts of final reports represent another category of exempt
documents.[68] Also, e-mails that are part of the agency deliberative
process are protected in the same way that conventional documents are.[69]
The rationale for the deliberative-process privilege is that
bureaucrats and government advisers, including nongovernmental
outside consultants, must be protected from the "chilling effect" of
publicity that could result if their opinions and recommendations
were made public and prematurely opened to criticism and debate.[70]
Otherwise, they would be reluctant to make important policy
recommendations that are controversial, novel or subject to misinterpretation.
A. The 'chilling effect' rationale
The Supreme Court has held that the purpose of the FOIA's deliberate
process protection is to "prevent injury to the quality of agency
decisions."[71] Judicial recognition that confidentiality is integral
to the deliberative-process privilege predates the FOIA, and is
related to the protections provided by the executive privilege
doctrine.[72] Deliberative-process protection for federal agencies
was endorsed by the federal courts as early as 1958:[73]
Free and open comments on the advantages and disadvantages of a
proposed course of governmental management would be adversely
affected if the civil servant or executive assistant were compelled
by publicity to bear the blame for errors or bad judgment properly
chargeable to the responsible individual with power to decide and act.[74]
The FOIA-related "chilling effect" rationale has its roots in the
early legislative history of the FOIA.[75] The 1966 House report that
accompanied the FOIA legislation declared that Exemption 5 is
"intended to preserve the process of agency decision making from the
natural muting of free and frank discussion, which would occur if
each voice of opinion and recommendation could be heard and
questioned by the worlds outside the agency."[76]
Courts have broadly interpreted the scope of the "chilling effect"
rationale in a long line of rulings that upheld agency rulings not to
release information.[77] The Sixth Circuit put it this way: "[I]t is
the free flow of advice, rather than the value of any particular
piece of information, that Exemption 5 seeks to protect."[78] The
D.C. District Court held that Exemption 5 "'is not limited to
preventing embarrassment or 'chilling' of the individual authors of
the deliberative documents, but [rather] is designed to prevent
chilling of agency deliberations."[79] Courts have also made clear
that Exemption 5 protects agencies and the deliberative process—not
necessarily the people who are affected by their decisions—to foster
"honest and frank communication within [an] agency."[80] The D.C.
Circuit observed that "[i]t is widely recognized that disclosure of
the advice and comments made by particular individuals on a policy
issue may have a chilling effect on the openness with which those
individuals subsequently express such comments and advice."[81]
Finally, some courts have held that under certain circumstances the
disclosure of a plain fact such as the identity of the author of a
deliberative document warrants protection under Exemption 5,[82] even
after a final version of the document has been released to the
public.[83] The Department of Justice has noted that "where any one
of several individuals could be responsible for providing a
recommendation to a decisionmaker, it is possible that identification
of the actual advisor could cause sufficient impairment to justify
Exemption 5 protection."[84] Indeed, it is this same reasoning that
lies at the heart of a related and pending non-FOIA public access
case seeking the names of the advisers to the National Energy Police
Development Group, the federal energy task force headed by Vice
President Cheney.[85] In a separate FOIA case concerning access to
cabinet-level recommendations made to the energy task force, the D.C.
District Court held in 2004 that the task force is not an "agency,"
and, therefore, documents submitted to it could not be said to be
contributing to an "agency's" decision-making policies.[86] In this
case, which is pending appeal before the D.C. Circuit at this
writing, Judicial Watch, a public interest group, sought
recommendations submitted to the task force by such agencies as the
Department of Energy, the Department of the Interior and the National
Resources Defense Council.[87]
Courts have recognized essentially three policy bases for
deliberative-process protection for agencies: First, it fosters
creative debate and frank consideration of alternatives, thereby
improving the quality of agency decisions. Second, it protects the
public from confusion that could result from premature disclosure and
publicity before policies and decisions are made final. Third, it
enhances the integrity of the decision-making process with the
message that "officials should be judged by what they decided, not
for matters they considered before making up their minds."[88] To
qualify for withholding protection under these three policy bases, a
document must meet two criteria regarding its content: It must be
"pre-decisional" and "deliberative."
B. The timing question: pre-decisional or post-decisional?
The Supreme Court has recognized a distinction between
"pre-decisional" documents and "post-decisional" documents, holding
that the former are protected whereas the latter are not exempt.[89]
However, the Court also has broadly interpreted the conditions under
which a document is to be considered pre-decisional:
Our emphasis on the need to protect pre-decisional documents does not
mean that the existence of the privilege turns on the ability of an
agency to identify a specific decision in connection [with a
requested document]. Agencies are, and properly should be, engaged in
a continuing process of examining their policies; this process will
generate memoranda containing recommendations which do not ripen into
agency decisions; and the lower courts should be wary of interfering
with this process.[90]
And the lower federal courts have closely followed the Court's
admonition. The Sixth Circuit held that "when specific advice is
provided, . . . it is no less predecisional because it is accepted
or rejected in silence, or perhaps simply incorporated into the
thinking of superiors for future use." [91] And the D.C. District
Court rejected an argument that a requested document was not exempt
because it was not actually relied on. "If the author had known that
the notes discussing the proposed questions and issues would be
subject to FOIA disclosure and not actually used, the author likely
would have been more cautious in what he or she recommended," the
district court reasoned.[92]
Hammitt and his coauthors have identified three factors that the
courts generally consider in determining whether a document is
"pre-decisional":[93] The document or record (1) is "so candid or
personal in nature that public disclosure is likely in the future to
stifle honest and frank communication within the agency"; (2) is by
its nature a recommendation or is a draft; and (3) "weigh[s] the pros
and cons of agency adoption of one view-point or another."[94]
Post-decisional documents include statements of policy and final
decisions that carry the force of law or that implement an already
established agency-policy.[95] The D.C. Circuit has held that a
document can lose its pre-decisional status "if 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."[96] Normally,
post-decisional materials do not fall under Exemption 5, but if a
document is "post-decisional in form but pre-decisional in its
content," it may be withheld.[97] In other words, if a
post-decisional document contains pre-decisional information, the
document could be protected under Exemption 5. For example, a federal
district court in Massachusetts held that an e-mail communication
sent after an agency decision was nonetheless "pre-decisional" and
exempt because the e-mail contained information about pre-decisional
recommendations. [98]
Courts have acknowledged that the line between pre-decisional and
post-decisional documents is "often blurred"[99] and have therefore
established several criteria to distinguish the key differences. The
first criterion is that post-decisional documents must contain a
"final opinion."[100] Second, the courts must consider the nature of
the decision-making authority vested in the office or person issuing
the document;[101] if the issuer lacks "legal decision authority,"
then the courts are more likely to consider the document to be
pre-decisional.[102] In order to determine legal authority, courts
often look "beneath formal lines of authority to the reality of the
decision-making process."[103] Third, courts need to determine the
direction that a document travels in the decision-making process. A
document moving from a subordinate to a superior official is more
likely to be considered pre-decisional than a document moving in the
opposite direction because the decision-making process usually flows
from the superior, who is vested with policy-making authority, to the
subordinate who carries out the policy.[104] However, some courts
have protected documents flowing from a superior official to a
subordinate. "Conversation is, after all, a two-way street," noted a
Massachusetts federal district court. "A superior would be willing to
engage a subordinate in candid debate only if he knows that his
opinions will also be protected by the 'deliberative process'
privilege." [105]
The D.C. Circuit has noted that a document may lose
deliberative-process protection if a final decision-maker "chooses
expressly to [formally] adopt or incorporate [the document] by
reference" in a post-decisional opinion.[106] Some courts, however,
have recognized a less stringent standard that includes "informal
adoption" as well as "formal adoption."[107]
In addition to being a "pre-decisional" communication in order to
qualify for deliberative-process protection, a document or record
must also be "deliberative," meaning that it makes "recommendations
or expresses opinions on policy matters."[108] Generally, the
"deliberative" criterion turns on whether a document contains opinion
or factual information.
C. Documents must be "deliberative"
The Supreme Court has distinguished between documents "reflecting
deliberative or policy-making processes," which are shielded from
disclosure, and "purely factual, investigative matters," which are
non-exempt on the theory that releasing factual information does not
"threaten consultative agency functions."[109] Courts have held
further that facts contained in exempt pre-decisional documents must
be segregated and disclosed unless they are "inextricably
intertwined" with exempt portions.[110]
Just as the line often blurs between protected pre-decisional and
non-exempt post-decisional documents, there also are gray areas when
it comes to the "seemingly straightforward distinction" between fact
and opinion.[111] Some facts can be protected if an agency can
establish that their disclosure would reflect pre-decisional
deliberative processes.[112] In addition, factual information can be
exempt if it is so inextricably linked with opinion that it is
impossible to separate the facts from the deliberative information in
a document without exposing or harming agency deliberations.[113] In
certain limited circumstances, facts can also be withheld if
releasing the data would hamper an agency's ability to obtain
information essential to the decision-making process, or deter an
agency from seeking information necessary for decision-making.[114]
When factual or statistical information is an expression of the
deliberative communications of an agency, it can be withheld if it is
shown that the data would reveal the agency's decision-making
process.[115] For example, Exemption 5's deliberative-process
protection applies to raw data in scientific reports, if that data is
the basis of an opinion given by an expert consulted in policy-making.[116]
When it comes to census data, the Ninth Circuit and the Eleventh
Circuit are in direct conflict, blurring the lines of fact and
opinion. In 1992, both circuits reached different conclusions over
whether numerical information contained in the 1990 census is exempt
under the deliberative-process privilege. State legislatures in both
California and Florida sought "adjusted" census data for their states
because lawmakers wanted to determine how final figures were arrived
at. The Eleventh Circuit held that "adjusted" census data were
protected "opinion" and not factual information because the
information was in the form of a compilation created by a census
researcher.[117] The court reasoned that the raw numerical data had
been organized, which requires judgment, and was issued before a
final report was released. Meanwhile, the Ninth Circuit held that
computer tapes containing "adjusted" numerical data based on census
figures was not protected because it was neither pre-decisional nor
deliberative, even though the tapes were prepared before a final
report on the data. This court reasoned that the data were prepared
for the purpose of post-decision dissemination. Further, the Ninth
Circuit held, the data did not reveal anything about Commerce
Department deliberations on how to adopt adjusted data in determining
the official U.S. census.[118] The Ninth Circuit arrived at a similar
conclusion over data contained in the 2000 census.[119]
There is also a gray area when it comes to distinguishing facts from
opinion in documents pertaining to investigations, evaluations or
analyses. Several courts, including the D.C. Circuit, have held that
the government must release "factual, investigative, and evaluative
portions" of records that "reflect final objective analyses of agency
performance" and "reveal whether the agencies' policies are being
carried out."[120] However, the D.C. Circuit has also held that the
government can withhold cost-estimate analyses compiled for the
purpose of selecting homeports for Navy battleships, reasoning that
this information derives from "a complex set of judgments" that
reflect the "elasticity that has persuaded courts to provide shelter
for opinions generally."[121]
In sum, different courts use different criteria to help them
distinguish between facts and opinion. For example, to determine
whether such information is exempt, the Ninth Circuit has adopted a
broad "process-oriented" or "functional" test that favors exemption
if an agency can show that disclosure of factual information would
"reveal the mental processes of the decision makers."[122] And in the
D.C. Circuit's attempt to draw a line between facts and opinion, that
appeals court has instructed that factual information should be
examined "in light of the policies and goals that underlie" the
privilege as well as in "the context in which the materials were used."[123]
Conclusion
What is most clear about Exemption 5's deliberative-process
privilege is that the law is unclear. Several factors contribute
principally to the confusion created by this privilege. The threshold
requirement presents a problem at the very outset. Because FOIA's
crafters never defined Exemption 5's key terms, C
confusing when one considers the multi-step approval processes that
often take place in the natural course of policy- and
decision-making. Neither Congress nor the courts have adequately
settled this thorny question. As O'Reilly noted, "What is 'final' at
one level may change as a progression of approvals is needed."[124]
Furthermore, it is unsettled whether the government must disclose
pre-decisional documents that reflect established law that agencies
actually apply in making decisions and setting policy. Some courts
have upheld agency nondisclosure in such instances, in apparent
contravention of a central FOIA principle—to prevent agencies from
administering "secret law."[125]
Ts c dfactual information contained in a pre-decisional document.
Without distinct criteria, how exactly should a court determine if
the requested facts are so intertwined and inextricably linked with
opinion that it is impossible to separate and release the facts
without harming an agency's deliberative process? Commenting on this
segregation-and-disclosure conundrum in the currently pending
Exemption 5 energy task force case, D.C. District Court Judge Emmet
Sullivan observed: "What is most clear is that the law in this
Circuit . . . is unclear."[126]
Finally, the "chilling effect" rationale seems to have no bounds,
even to the extent that the identities of advisers—who typically are
either salaried governmental employees or paid consultants presumably
sought out for their expertise—can be shielded from the public. Such
secrecy turns the FOIA's core democratic value of accountability on
its head. Perhaps officials should not be judged for "matters they
considered before making up their minds," [127] as one court has
said, but the public should at least know who these people are. One
of the fundamental policy bases behind the "chilling effect"
rationale is in itself highly questionable—to protect the public from
confusion that could result from publicity before policies and
decisions are made final. This long-accepted theory reflects a
blatantly paternalistic presumption that the general public can
either be easily mislead or simply cannot grasp the complexities of
policy-making. More important, however, this justification directly
conflicts with the democratic principles of an open society and the
First Amendment rights of citizens to debate important national
policy issues. Veiling the decision-making process under a boundless
"chilling effect" rationale simply fosters the kind of group-think
mentality that can create disastrous consequences when like-minded
groups and individuals are insulated from opposing or novel views.[128]
Congress explicitly stated that the burden is on the government to
justify withholding a record.[129] But as this paper has attempted to
show, the courts have so broadly construed the deliberative-process
privilege that the judiciary has, in effect, created a presumption of
nondisclosure that flies in the face of the FOIA's strong presumption
for "the fullest disclosure possible of government actions."[130] As
Hammitt pointed out, the deliberative process privilege is so broadly
interpreted by the courts that "its routine application threatens to
choke off much of what the government actually does on a day-to-day
basis."[131]
The solution to the broad array of problems created by the
deliberative-process privilege is a legislative remedy. Congress
amended the FOIA in significant respects in 1974, 1976, 1986, and
1996 to strengthen the law by requiring in camera review in national
security access-disputes; reducing agency discretion to withhold
documents; mandating the segregation and release of non-exempt
information from documents containing exempt materials; and
clarifying that computerized information, including government
databases, are subject to the FOIA's disclosure requirements just the
same as paper records.[132] Congress now needs to set its sights on
closing the loopholes in Exemption 5.
At the very least, lawmakers need to make it clear that
pre-decisional documents, which reflect established law that an
agency is applying in its deliberative process, should be released
even if disclosure would draw criticism, stir debate and prompt
political reaction. A few federal courts have recognized the need for
such transparency,[133] but the majority of courts routinely accept
the "pre-decisional" rule without much question. Also, Congress must
delineate the boundaries of the "chilling effect" rationale,
otherwise this theory will continue to be exploited by agencies who
prefer to operate in secrecy, to the detriment of the public's right
to know "what the government is up to."[134] It's been a decade since
the last round of FOIA amendments, and it is time once again to
update the FOIA so that it reflects what the American public has come
to expect in open government.
[1]
[2] S R R SN
[3]
R R
[4]
5 U.S.C. § 552(b)(1-9). The FOIA does not apply to matters that
fall under the categories of (1) classified information and national
security; (2) internal agency personnel information; (3) information
exempted by statutes; (4) trade secrets and other confidential
business information; (5) inter-agency and intra-agency memoranda;
(6) disclosures that invade personal privacy; (7) law enforcement
investigation records; (8) reports from regulated financial
institutions; and (9) geological and geophysical information. A 1965
Senate report noted that the FOIA exemptions provide a "workable
formula which encompasses, balances, and protects all interests, yet
places emphasis on the fullest responsible disclosure." S. Rep. No.
89-813, at 3.
[5]
[6] R.R.R.
[7] The other privileges incorporated into Exemption 5 are beyond
the scope of this research project. Briefly stated, the
attorney-client privilege protects confidential communications,
including facts conveyed by a client to an attorney or conveyed by an
attorney to a client. The attorney work-produce privilege applies to
documents prepared by an attorney that reveal the theory of the
government's case or its litigation strategy. There are two
less-often used privileges embodied in Exemption 5 as well. The first
of these deals with confidential commercial information generated by
the government in the awarding of a contract. There is also a
discovery privilege that protects factual statements made to
investigators in connection with an air crash. The rationale behind
this privilege is that confidentiality will encourage witnesses and
crash survivors to speak candidly about the incident.
[8]
[9]
SJa.Sn
[10]
UD,[FGS H
[11]
[12]
S P,hpP I I
[13] S P,hp
[14]
[15] S,N B.N,V T D J H s UDS s
[16] S a1
[17] S s
[18]
[19]
R
[20]
R
[21] See, e.g., S. Rep. No. 93-1200, at 12 (1974); H.R. Rep. No.
94-880, pt. 1, at 23 (1976); and H.R. Rep. No. 104-795, at 20 (1996).
[22] See, e.g., U.S. Dep't of Defense v. FLRA, 510 U.S. 487, 493-94
(1994); Dep't of Justice v. Reporters Comm. for Freedom of the Press,
489 U.S. 749, 755 (1989); NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 220 (1978); U.S. Dep't of the Air Force v. Rose, 425 U.S. 352,
360-361 (1976); EPA v. Mink, 410 U.S. 73, 80 (1973).
[23]
[24] F, s n
[25]
[26]
[27]
SO sn a
[28]
[29]
Sn.
[30]
[31] SO,
[32] S
[33] SFsn
[34] W S U U
[35] W4
[36]
[37]
[38]
INC,N AM N F
[39]
R6
[40] SFsn
[41] S
[42]
[43] Klamath, 532 U.S. 1, 4.
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[48] I
[49] I
[50] a5
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[52] K Iaq, 1
[53] K
[54] K
[55] R6
[56] SDP,S Kd
[57] Tigue v. U.S. Dep't of Justice, 312 F.3d 70, 78-79 (2d Cir.
2002)(exempting recommendations from a U.S. Attorney's Office to the
William Webster Commission.) The Webster Commission Report resulted
in fundamental procedural and organizational changes within the IRS
Criminal Investigation Division and also led to the reorganization of
the Criminal Tax Division of the Office of Chief Counsel.
[58]
[59]
Citizens for Pa.'s Future v. U.S. Dep't of the Interior, 218 F.R.D.
441, 446-47 (M.D. Pa. 2003)(exempting documents exchanged between the
Department of the Interior and the Pennsylvania Department of
Environmental Protection, pertaining to recommendations for opening
protected lands to development).
[60]
[61] S Hsn
[62] S s
[63] S M
[64] See FOIA Guide, supra note 10, at 371. See also Schell v. HHS,
843 F.2d 933, 942 (6th Cir. 1988) ("It is the free flow of advice,
rather than the value of any particular piece of information, that
Exemption 5 Seeks to protect"); Dudman Communications Corp. v. Dep't
of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987) ("Congress
enacted Exemption 5 to protect the executive's deliberative
process—not to protect specific materials").
[65] 's n
[66] S s
[67]
S s
[68]
S s
[69]
[70]
R.S a K M,
[71] R
[72] sM
[73] Kaiser Aluminum & Chemical Corp. v. U.S., 141 Ct. Cl. 38, 49,
157 F. Supp. 939, 945-48 (1958).
[74] I
[75]
H.R. Rep. No. 89-1497, at 10.
[76] I
[77] SMSS D C "
[78] S
[79]
[80]
C
[81]
[82]
See, e.g., Greenberg v. U.S. Dep't of the Treasury, 10 F.Supp. 2d
3, 16 n.19 (D.D.C. 1998)(holding that redaction of authors' names
would not eliminate the chilling effect on the decision-making
process). See also Brinton v. Dep't of State, 636 F.2d 600, 604 (D.C.
Cir. 1980) ("If these agency records are indeed deliberative, it is
appropriate to apply Exemption 5 to the documents themselves, as well
as to the names of their authors"), cert. denied, 452 U.S. 905
(1981); City of West Chicago v. NRC, 547 F. Supp. 740, 750 (N.D. Ill.
1982) (list of "contributors" to draft document held properly
protectible in order to keep them "free of publicity and the
concomitant need to justify in public their tentative opinions"); Tax
Reform Research Group, 419 F. Supp. at 423-24 ("One aspect of the
deliberative process ... protected by exemption (b)(5) is the
identity of persons giving particular advice on a policy matter").
[83] T
[84] FOIA Update, Vol. VI, No. 2, Spring 1985.
[85] In re: Cheney, et al., 334 F.3d 1096 (D.C. Cir. 2003). This
suit was brought by Judicial Watch, a public interest group, under
the Federal Advisory Committee Act (FACA), which prohibits secretly
using non-government personnel to do government work. In re: Cheney
was appealed to the U.S. Supreme Court, which remanded the case to
the U.S. Court of Appeals for the D.C. Circuit in June 2004, Cheney
v. U.S. District Court for the District of Columbia, 124 S.Ct. 2576
(U.S. 2004). The D.C. Circuit heard oral arguments in late January
2005, and its decision is pending as of this writing (March 31, 2005).
[86] a.
[87] IO
[88] q
[89] S,
[90]
Sears, 421 U.S. at 151 n. 8.
[91] S
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[93] SH
[94] SH q
[95] S FGs
[96]
SH q
[97] S s
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[100] S S aS
[101]
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[102] I
[103] S,
[104] S6
[105] N S
[106]
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[107] C,P,
[108] S eV
[109] M
[110] See, e.g., Ryan v. DOJ, 617 F.2d 781, 790-91 (D.C. Cir. 1980).
Congress created the requirement to segregate and disclose non-exempt
information when lawmakers passed the 1974 FOIA amendments. The
requirement applies to all nine exemptions. 5 U.S.C., §
552(a)(4)(B)(2000). See also Pub. L. No. 93-502, 88 Stat. 1561 (1974).
[111] S s
[112] S s
[113]
S s
[114]
[115]
S s
[116]
S s
[117]
[118]
[119]
[120]
Vaughn, 523 F.2d 1136. See also Sterling Drug, Inc. v. Harris, 488
F.Supp. 1019, 1028-29 (S.D.N.Y. 1980)(disclosing medical analyses of
clinical drug tests).
[121] Q SM
[122]
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[123]
W,
[124]
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[125]
Si,a
[126]
Access Reports, Court Rules Segregation Applies to Work-Product
Privilege, Vol. 30, No. 20, Oct. 20, 2004, at 2.
[127] R q J,
[128] SI
[129]
S A
[130] R snSn
[131] A CV
[132] SP
[133] See, e.g., Tax Analysts v. I.R.S., 117 F.3d 607, 38, 38 Fed.
R. Serv. 3d 849 (D.C. Cir. 1997)(Where releasing past recommendations
caused no harm to final judgments, there is no basis to conclude that
disclosure of similar agency decisions would have a "chilling effect"
on internal debate); Bay Area Lawyers Alliance for Nuclear Arms
Control v. Dep't of State, 818 F. Supp. 1291 (N.D. Cal.
1992)(Exemption 5 protects open and frank discussion, but an agency
cannot refuse disclosure solely on a claim that a document might
create confusion about final decisions).
[134]
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