Federal Open Government Guide

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.

The exemption has been most often used to protect working papers, studies and reports prepared within an agency or circulated among government personnel as they try to reach a decision.

In 2001, the Supreme Court clearly stated the rule to apply in Exemption 5 cases saying, “To qualify, a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.”⁵¹

Under this exemption, agencies have the discretion to protect advice, recommendations and opinions that are part of the deliberative and decision-making process. Its purpose is to encourage candor among agency personnel in the writing and reviewing of preliminary policy drafts, letters between agency officials, and staff proposals. The exemption applies to documents generated during the decision-making process, in most cases even after a final agency decision is announced. That is true unless in that final decision the agency clearly adopts the position set forth in one of those planning-stage, or “pre-decisional” documents.

The exemption does not cover purely factual portions of pre-decisional documents. For example, if a long policy memorandum contains advisory recommendations on a proposed federal building project and pricing of construction, the prices must be segregated from the policy portion of the memorandum and released upon request. Also, final opinions and other “post-decisional” documents explaining an agency position are not exempt.

In addition, this exemption incorporates the attorney-client privilege, which protects most communications between an agency and its own attorney or another agency acting as its attorney, such as the Department of Justice. It also incorporates the attorney work-product privilege, which protects documents prepared by an attorney if disclosure would reveal the attorney’s theory of the case or planned trial strategy.

The U.S. Supreme Court has recognized some other privileges under Exemption 5. One is a qualified privilege for government-generated commercial information. Information related to awarding of government contracts may be withheld, so long as the government can show that disclosure would place it at a competitive disadvantage. However, once the contract has been awarded or the offer withdrawn, the government cannot claim this privilege.⁵² (This information may fall under another exemption, however, particularly Exemption 3.) Another privilege protects witness statements given under promise of confidentiality as part of an air crash investigation.⁵³

In 2001, the Supreme Court unanimously reiterated that under Exemption 5 the source of the documents must be a government agency. The Court reasoned that agency consultants might be covered under this provision because they acted like agency employees. But communications from groups (such as the American Indian tribes at issue in that case) who worked in their own interest could not be covered. ⁵⁴

This reasoning was extended to protect documents used by the National Energy Policy Development Group, chaired by Vice President Dick Cheney. The key question to consider, the court held in that case, is “whether a document will expose the pre-decisional and deliberative processes of the Executive Branch.”⁵⁵

Indeed, changes in administration policies and attitudes toward FOIA are nowhere more apparent than under Exemption 5, where the clearest case can be made for the discretionary release of records that might technically be covered by an exemption. Prior to the Clinton administration, when the Justice Department directed agencies to stop invoking exemptions where no harm would occur from disclosure, this exemption was routinely used to withhold records. During the Clinton years, agencies generally stopped invoking Exemption 5 unless they made an actual finding that agency personnel who developed the documents would have changed their wording if they had contemplated public disclosure.

However, under the Bush administration, the Justice Department urged agencies to find reasons within the exemptions for denying information. Agencies sometimes refused to give out innocuous information, stating that to do so might obligate them to give out similar information in the future.

Still, the Bush administration policies did not prohibit discretionary releases and the early Obama policies seem to favor them. Requesters who appeal the denial of information that could be subject to discretionary release should note the distinction between information that can be withheld and information that must be.

51 Dep’t of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1 (2001).

52 Fed. Open Market Comm. v. Merrill, 443 U.S. 340 (1979).

53 U.S. v. Weber Aircraft Co., 465 U.S. 792 (1983).

54 See Dep’t of Interior v. Klamath Water Users Protective Assn., above.

55 Judicial Watch, Inc. v. Department of Energy, 412 F. 3d 125 (D.C. Cir. 2005).