IV. Waiver
In some cases, you may be able to argue that the government has waived a privilege with respect to a document it seeks to withhold under Exemption 5.
“Waiver can occur when communications are disclosed to private individuals or nonfederal agencies.”136 For example, one court held that an agency waived any privilege for a model it developed related to groundwater contamination by sharing the results generated by the model with its regional board, which then shared them with the requester’s attorneys.137
In determining that the release of the results also waived the privilege with respect to the document containing the model itself, the court looked to the circumstances of the prior release.138 It noted that the agency had “purposely shared the results with the Board,” had not required the Board employees in attendance to sign a confidentiality agreement, and that “disclosure of the model itself would not reveal [the agency’s] litigation strategies or trial preparations” — all factors showing that withholding the model was “neither necessary to maintain a healthy adversary system nor consistent with the purpose of work product protection.”139
Likewise, in arguing that a waiver occurred, you should demonstrate that, based on the circumstances, the agency has not treated a document as it would a “privileged” document, i.e. it failed to maintain it as confidential. Additionally, you should emphasize that release of that document would not conflict with the purposes of a particular privilege, particularly in light of a prior release.
However, depending on the circumstances, an agency’s limited or involuntary prior release of a document may not constitute a waiver. For example, a court held that reports submitted to Congress by a federal committee could remain exempt where the committee was required to do so by law, and submission to Congress was an exception to the law’s requirement that the information “shall not be disclosed to any person.”140 Likewise, where an agency disclosed information pursuant to a congressional subpoena and a court order, a court held that such an “involuntary” disclosure did not waive the exemption.141
For more information, see the chapter on waiver and prior disclosure.
136 Chilivis v. S.E.C., 673 F.2d 1205, 1212 (11th Cir. 1982).
137 See Goodrich Corp. v. U.S. E.P.A., 593 F.Supp.2d 184, 190-92 (D.D.C. 2009).
138 Id. at 191-92.
139 Id. at 192.
140 Ancient Coin Collectors Guild, 641 F.3d at 513 (quoting 19 U.S.C. § 2605(f)(6)).
141 Fla. House of Representatives v. U.S. Dep’t of Commerce, 961 F.2d 941, 946-47 (11th Cir. 1992).
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