IV. Purely Factual Material

You may also argue that some or all of the information in the records is purely factual material, and should therefore be released. Some courts have analogized Exemption 8 to the bank examination privilege — a qualified discovery privilege under which “purely factual material” is not protected from release.²⁸ These courts have applied this distinction in the Exemption 8 analysis as well.²⁹ The party opposing release in these courts must demonstrate that the information contained in the documents sought to be withheld is “deliberative” — comprising “recommendation or opinions” — rather than “primarily factual.”³⁰

For example, a court applied that distinction to deny an agency’s motion for summary judgment with respect to its Exemption 8 withholdings because “[m]uch of the most critical information sought” was “quite factual,” such as a calculation of a then-defunct credit union’s solvency and borrowing ratio, and could be segregated and released.³¹ Requesters should argue that at least some of the information at issue is of a factual nature and can be released.

Additionally, while at least two other U.S. District Courts have held that Exemption 8 does not apply to factual information, they have emphasized that the facts “must be considered with respect to the overall context of the documents in which they are contained,” and with the purposes of Exemption 8 in mind.³² In arguing that the information at issue is “purely factual,” you should demonstrate that its release will not result in the harms Exemption 8 is designed to prevent when considered within the context of the documents in which it appears.

But you should note that the fact-opinion distinction been rejected by courts some jurisdictions, so this argument may not work in all cases.³³