II. Public Domain Test Not Uniformly Adopted

In some contexts, courts have sometimes adjusted or rejected the “public domain” test in determining whether waiver occurred. This generally happens when a court looks to the circumstances of the disclosure, and finds that even though the requester has proven the elements of the “public domain” test, the purpose of the exemption would still be served by allowing the agency to continue to invoke it in that particular circumstance.

Likewise, courts have sometimes chosen to find waiver occurred in some cases where the requester has not technically proven all of the elements of the “public domain” test, but the circumstances of the disclosure show that continuing to apply that exemption would not further its purpose.

Courts have taken varying approaches to the public domain test in determining whether prior disclosure of materials at trial constitutes a waiver. In one case, the U.S. Court of Appeals for the District of Columbia Circuit held that the Department of Justice waived its right to withhold those portions of tapes it played during a trial that the requester could show were in the “public domain” by presenting “a permanent public record of [those] exact portions.”²⁶

In contrast, the U.S. Court of Appeals for the Tenth Circuit declined to adopt the public domain test in 2011 in determining whether waiver occurred with respect to video and photographs depicting a prisoner’s murder that the government used as unsealed exhibits at trial.²⁷ The court explained that “[t]he public domain doctrine is limited and applies only when the applicable exemption can no longer serve its purpose.”²⁸

Consequently, the court looked to whether “the purpose of Exemption 7(C) in this case remains intact despite the government’s use of the records at a public trial.”²⁹ While the requester pointed out that members of the news media who were present at the trials had described the contents of the materials in articles, the court noted that the audio and images themselves had only been viewed by individuals present in the courtroom and had not been further disseminated, so the victim’s family had a continuing privacy interest in them.³⁰ For that reason, the court stated that “[e]ven if this court adopted the public domain doctrine, it would not defeat Exemption 7(C)’s applicability in this matter because the purposes of Exemption 7(C) can still be served.”³¹

Similarly, in the context of privileged materials, courts have often applied varying tests for waiver that revolve around the question of whether continuing to apply the exemption would be consistent with its purpose.

For example, in determining whether the government waived attorney work product privilege under Exemption 5, which applies to materials that would be privileged under civil discovery rules, a court looked to how the privilege would be waived in the context of civil discovery.³² The court explained that in “certain circumstances . . . disclosure of some attorney work product may result in a waiver of other attorney product,” and the relevant factors would include, for example, whether “the party claiming protection [is] doing so in a way consistent with the purpose of the privilege,” “whether disclosure was intentional or inadvertent,” and “the extent to which the requested documents would reveal litigation strategies or trial preparations.”³³

As a general rule, when arguing that one or more exemptions cannot apply because the information is in the public domain, you should try to buttress that argument by explaining how — based on the facts of that particular situation — continuing to apply those exemptions would no longer further their intended purpose.