This exemption is intended to incorporate material normally privileged in civil litigation. It applies to records that are:

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.

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 review of preliminary policy drafts, letters between agency officials, and staff proposals. The exemption applies to pre-decisional documents, in most cases even after a final agency decision is announced, unless in the final decision the agency clearly adopts the position set forth in a particular pre-decisional document.

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 Supreme Court has recognized some other privileges which Exemption 5 incorporates. 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 However, once the contract has been awarded or the offer withdrawn, the government cannot claim this privilege.⁴⁵ Another privilege protects witness statements given under promise of confidentiality as part of an air crash investigation.⁴⁶

However, the exemption does not necessarily come into play at any time that any privilege is invoked. In 2001, the Supreme Court ruled unanimously that the Department of the Interior’s trusteeship relationship to Indian tribes did not convey any privilege that would protect tribal comments to the department seeking allocation of water rights on the Klamath River in Oregon and northern California. A tribe would be pressing “its own view of its own interest,” the court said.⁴⁷

The “change in tone” between the Reno and Ashcroft memoranda is nowhere more apparent than in agency denials under Exemption 5, where the clearest case can be made for the discretionary release of records that might technically be covered by an exemption. Until the 1993 Reno memorandum directed agencies to stop invoking exemptions where no harm would occur from disclosure, this exemption was routinely used to withhold records. Acting under instruction from the Reno memorandum, agencies generally stopped invoking Exemption 5 unless they made an actual finding that agency personnel who developed the documents would actually have changed their expression of their views if they had contemplated public disclosure.

The Ashcroft memorandum, which urged agencies to find reasons within the exemptions for denying information reversed that trend. Today some agencies actually refuse to give out innocuous information, stating that to do so might obligate them to give out similar information in the future.

Whatever its “tone,” the Ashcroft memorandum did not prohibit the exercise of discretionary releases. Requesters who appeal the denial of information that could be subject to discretionary release should note that agencies are not obligated to withhold that information.

Next section: Personal Privacy