Exemption 5

Exemption 5 of the federal Freedom of Information Act covers multiple privileges, including those that protect an attorney’s work product, attorney-client communications, and the “deliberative process.” It exempts from mandatory disclosure “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.”1

In determining whether disclosure of the document will adversely affect the purposes of the exemption, the relevant inquiry is “whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency.”2

The U.S. Supreme Court has ruled that to qualify for Exemption 5 protections, a document must satisfy two conditions.3 First, “its source must be a Government agency.”4 Second, the document “must fall within the ambit of a privilege against discovery” recognized under Exemption 5.5 When possible, you should raise challenges on both grounds.

1 5 U.S.C. § 552(b)(5).

2 Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1126 (D.C. Cir. 2007) (quotingCoastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).

3 Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).

4 Id.

5 Id.