I. "Inter-Agency or Intra-Agency Memorandums or Letters"

You may be able to appeal an Exemption 5 withholding on the basis that the records sought are not “inter-agency or intra-agency memorandums or letters.”⁶ The FOIA defines “agency” as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.”⁷

“Intra-agency” communications “are those that remain inside a single agency,” while “inter-agency” communications “go from one governmental agency to another.”⁸ Consequently, you may appeal an Exemption 5 withholding on the basis that the document sought “either originated from or was provided to an entity that is not a federal government agency.”⁹

For example, a court held that communications between the U.S. Army and a private company awarded a government contract were not exchanged inter- or intra-agency.¹⁰ Additionally, on the basis that “Congress is simply not an agency,” the U.S. Court of Appeals for the District of Columbia Circuit has held that communications between an agency and Congress do not qualify as “inter-agency” for Exemption 5 purposes.¹¹ On that basis, the court held that a letter sent by the Department of Justice to the House Ethics Committee was not an “inter-agency” exchange.¹²

In arguing that a record is not an inter- or intra-agency record, you should be prepared to provide evidence that the document originated from outside the government.

As discussed above, a record exchanged between an agency and a private third party is generally neither “inter-agency” nor “intra-agency.” However, in some limited circumstances, a non-agency party may act as a consultant to the government, and in such cases, their communications may qualify as an “intra-agency” exchange for Exemption 5 purposes. This extension of the “intra-agency” relationship to cover such agency consultants is generally referred to as the “consultant corollary.”

While Exemption 5 itself does not define the scope of “inter-agency and intra-agency,” the U.S. Supreme Court has noted that several federal appeals courts have relied on the consultant corollary in allowing documents prepared for government agencies by outside parties to qualify as “intra-agency” memorandum.¹³ As the Court explained, the courts’rationale in these cases is that “the records submitted by outside consultants played essentially the same part in an agency's process of deliberation as documents prepared by agency personnel might have done.”¹⁴

In recognizing that consultants’ communications with an agency may sometimes constitute an “intra-agency” exchange for Exemption 5 purposes, the Court highlighted several factors as relevant in this inquiry. If an agency seeks to withhold documents exchanged with a non-agency based on the consultant corollary, you should argue that each factor favors a finding that the non-agency party is acting in its own or another’s interest, rather than advising the agency in the same manner that the agency’s own employees would.

First, as the U.S. Supreme Court explained, the consultant must “not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it.”¹⁵ That is, the consultant’s “only obligations” should be “to truth and its sense of what good judgment calls for,” as “in those respects the consultant functions just as an employee would be expected to do.”¹⁶ For that reason, where non-agency parties “communicate with the [agency] with their own . . . interests in mind,” the consultant corollary likely does not exist.”¹⁷

Second, a non-agency party does not act as a consultant to the agency in situations where it “self-advocates at the expense of others seeking benefits inadequate to satisfy everyone.”¹⁸ As the Court emphasized, a “dispositive” question is whether the purpose of the third party’s communications is to obtain an agency decision to support a claim “that is necessarily adverse to the interests of competitors.”¹⁹

Consequently, in arguing that a claimed intra-agency relationship between an agency and a non-agency party does not satisfy the consultant requirements, it is important to examine the nature of the relationship. Where possible, you should highlight facts in your appeal that demonstrate that the purported consultant is arguably representing its own interests, or is not acting at the direction of the agency or as its agent.

For example, the U.S. Supreme Court ruled that memoranda exchanged between certain Native American tribes and the Bureau of Indian Affairs were not “intra-agency” communications where the tribes sought water rights from a federal program that allocated a limited water supply among competing users.²⁰ The Bureau, which administers water rights that it holds in trust for Native American tribes, exchanged memoranda with the tribes in determining the scope of the claims for water rights it would submit on their behalf in allocation proceedings.²¹

The Court found that since the tribes urged the agency to take “a position necessarily adverse to the other claimants” for water rights, the tribes acted in their own interests, rather than as a consultant to the agency.²² The Court found evidence of this in the nature of the memoranda submitted by the tribes, which included a position paper on water law theories and a discussion of their views on water rights.²³ Further differentiating the tribes’ interests from the Bureau’s, the agency’s duty to represent the tribes’ interests “coexist[ed] with the duty to protect other federal interests,” such as the proper operation of the government’s water allocation project.²⁴

Similarly, a court held exchanges between the U.S. Department of Education and the District of Columbia Mayor’s Office related to a federally funded school voucher program in the District were not “intra-agency” documents because the mayor’s office advocated on behalf of the interests of its own constituents.²⁵

The court also found a lack of a consultant relationship because the agency and the mayor’s office “share[d] responsibility for the D.C. voucher program such that information [was] not being conveyed to DOED to unilaterally make ultimate decisions based on the D.C. Mayor's Office's advice.”²⁶ The court noted that its holding was consistent with the fact that there was “no precedent for withholding documents under Exemption 5 where a federal agency and a non-federal entity share ultimate decision-making authority with respect to a co-regulatory project.”²⁷

In contrast, such an “intra-agency” consultant relationship was found where the government sought an outside expert’s opinion in valuing property for possible purchase or condemnation.²⁸ The court reasoned that the government had a “need for special expertise,” as it was constitutionally required to pay “just compensation” in obtaining land for projects, and the parcel of land at issue had “unique attributes.”²⁹ In such a situation, the court found that the agency required “the objective opinion of outside experts rather than rely[ing] solely on the opinions of government appraisers.”³⁰

In addition to those considerations, courts have also required the memorandum or letter to have actually been “solicited by the agency” for the consultant corollary to apply.³¹ For example, a court held the Federal Reserve Bank of New York (FRBNY) acted as an “intra-agency” consultant when it advised the Board of Governors of the Federal Reserve System (Board) on whether to extend a loan to a holding company that was potentially facing bankruptcy, as the FRBNY and the Board shared a common interest and the Board solicited the record.³²

Looking to the considerations for the consultant corollary established by the U.S. Supreme Court, the court noted that the Board and the FRBNY shared a common goal: to determine whether making the loan would “promote[] the maintenance of a sound and orderly financial system.”³³ While each body was required to make independent determinations on whether to approve the loan at issue, the court found this did not mean their “interests diverged,” as both are tasked by federal regulations and statutes to work toward maintaining a sound financial system.³⁴

Next, the court found that the Board “solicited” the document from the FRBNY, rather than the FRBNY “simply provid[ing] the information, unprompted.”³⁵ As the court noted, the Board requested the information about FRBNY-monitored institutions in order to assess their financial condition and the possible effect of the loan on their finances, and the information contributed to the Board’s deliberative process in determining the appropriate action to take.³⁶

In sum, if an agency claims that a non-agency party is a “consultant” for Exemption 5 purposes, you should argue that, based on the circumstances, the purported consultant is representing its own interests, rather than those of the agency. If the non-agency party submits the materials to the government as part of its efforts to obtain a government benefit at the expense of other competitors, you should argue that this factor weighs particularly heavily against a finding of a consultant relationship. When possible, it may also be helpful to point out that the agency did not actually solicit the memoranda or letters from the non-agency party.