II. Privileges Incorporated in Exemption 5
Exemption 5 protects documents from mandatory disclosure that fall within recognized “privilege[s] against discovery under judicial standards that would govern litigation against the agency that holds it.”37 What this essentially means is that if the record would not routinely have to be produced to the opposing side in the context of a lawsuit, then it can be withheld under Exemption 5.
Unlike court rules in civil litigation, you cannot overcome a privilege in the FOIA context by showing that you have a compelling need for the information.38 This is because while certain privileges are “absolute” in civil litigation, others are “qualified,” meaning that litigants can overcome the privilege by showing they have a particular need for the records.39
However, in the FOIA context, the U.S. Supreme Court has held that the standard for release under Exemption 5 is whether the records would “normally” or “routinely” be released in civil discovery.40 For that reason, courts have held that documents do not meet this standard where a litigant would have to make a showing of need to obtain them in civil litigation.41
The rationale for this is to prevent litigants from trying to use FOIA to obtain privileged material they could not be able to obtain in civil discovery on the chance that a FOIA records processor would release information a court was unwilling to order disclosed.42 Therefore, in appealing an Exemption 5 denial, it is critical to strongly argue that the privilege itself does not cover the relationship or materials at issue, rather than emphasizing your particular need for the records.
The U.S. Supreme Court has so far recognized five privileges that are incorporated into Exemption 5. They include: 1) the deliberative process,43 2) attorney work product,44 3) attorney-client communications,45 4) confidential commercial communications,46 and 5) statements of fact made to the government during an air crash investigation.47 Additionally, one federal appeals court has recognized Exemption 5 protection for reports of expert witnesses.48
37 Klamath Water Users Protective Ass’n, 532 U.S. at 8.
38 See United States v. Weber Aircraft Corp., 465 U.S. 792, 799-801 (1984).
39 See F.T.C. v. Grolier, Inc., 462 U.S. 19, 28 (1983).
40 Weber Aircraft Corp., 465 U.S. at 799.
41 See Grolier, Inc., 462 U.S. at 28.
42 See Weber Aircraft Corp., 465 U.S. at 801.
43 Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 150-54 (1975).
44 Id. at 154.
45 Id.
46 Merrill, 443 U.S. at 360.
47 Weber Aircraft Corp., 465 U.S. at 796 (citing Machin v. Zuckert, 316 F.2d 336 (D.C. Cir. 1963), cert. denied, 375 U.S. 896 (1963)).
48 Hoover v. Dep’t of Interior, 611 F.2d 1132, 1142 (5th Cir. 1980).
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