[SLIDE 1] FREEDOM OF INFORMATION ACT EXEMPTION (b)(5) "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." [SLIDE 2] THRESHOLD 1: INTER-AGENCY OR INTRA-AGENCY - STRICT CONSTRUCTION - LITERAL INTERPRETATION OF STATUTORY WORDS - FUNCTIONAL TEST • CONSULTANTS • OTHER SOLICITED ADVICE • LONGSTANDING PRACTICE EVEN THOUGH NO FORMAL RELATIONSHIP • UNSOLICITED ADVICE [SLIDE 3] THRESHOLD 2: LETTERS OR MEMOS • MEANS ANY KIND OF DOCUMENT [SLIDE 4] THRESHOLD 3: NOT AVAILABLE • NORMALLY PRIVILEGED IN CIVIL DISCOVERY - Deliberate process privilege - Attorney work product privilege - Attorney client privilege [SLIDE 5] DELIBERATE PROCESS PRIVILEGE • DESIGNED TO FACILITATE AGENCIES' DECISION MAKING PROCESS - PROTECT CANDOR OF THE DECISION MAKERS • DO NOT WANT TO "CHILL" • ENCOURAGE OPEN AND FRANK DISCUSSIONS [SLIDE 6] DELIBERATE PROCESS • PROTECT AGAINST PREMATURE DISCLOSURE OF PROPOSED POLICIES • PREVENT CONFUSION OF THE PUBLIC TO AVOID DISCLOSURE OF ALTERNATIVE RATIONALES - REASONS AND RATIONALES NOT ACCEPTED AS GROUNDS FOR AGENCY DECISION [SLIDE 7] TWO PARTS TO THE PRIVILEGE • MUST HAVE BOTH TO CLAIM PRIVILEGE - THE INFORMATION MUST BE PREDECISIONAL - THE INFORMATION MUST BE DELIBERATIVE [SLIDE 8] PREDECISIONAL • ANTECEDENT TO THE ADOPTION OF AGENCY POLICY - NOT FINAL AGENCY DECISIONS AND STATEMENTS OF AGENCY POLICY - NOT POST DECISIONAL STATEMENTS THAT EXPLAIN DECISIONS [SLIDE 9] IS DOCUMENT DELIBERATIVE? • ESTABLISH WHAT DELIBEARTIVE PROCESS IS INVOLVED AND THE ROLE PLAYED BY THE DOCUMENTS AT ISSUE IN THE COURSE OF THAT PROCESS • LOOK AT WHO HAS DECISION-MAKING AUTHORITY - CHAIN OF COMMAND • LOOK AT DIRECTION DOCUMENT FLOWS ALONG DECISION- MAKING CHAIN [SLIDE 10] DELIBERATIVE - ADVISORY • ANALYSIS, EVALUATIONS, ADVICE, RECOMMENDATIONS • NOT FACTS - MUST SEGREGATE FACTS FROM DELIBERATIVE MATERIAL [EXCEPT WHEN THE FACTS REVEAL THE DELIBERATIVE PROCESS OR ARE SO INTERTWINED WITH THE DELIBERATIVE PROCESS THAT THEY WOULD REVEAL THE PROCESS] [SLIDE 11] DELIBERATIVE - ADVISORY • IF A DOCUMENT IS A DRAFT, YOU CAN PROTECT IT ALL INCLUDING THE FACTS, EVEN IF THE DRAFT IS IDENTICAL TO THE FINAL VERSION. • QUESTIONS YOU NEED TO ASK: WHY WOULD YOU WANT TO? AND WHY WOULD YOU NEED TO? [SLIDE 12] DELIBERATIVE PROCESS QUIRKS • WHILE DRAFTS ARE GENERALLY CONSIDERED DELIBERATIVE, STAMPING DRAFT ON A FINAL DOCUMENT WILL NOT ON ITS OWN PROVIDE PROTECTION FROM DISCLOSURE • PRE-DECISIONAL DOCUMENTS CAN LOSE THEIR CHARACTER AS SUCH [SLIDE 13] ATTORNEY WORK PRODUCT PRIVILEGE • PURPOSE: PROTECT ADVERSARIAL TRIAL PROCESS BY INSULATING ATTORNEY'S PREPARATION FROM SCRUTINY • PROTECTS DOCUMENTS PREPARED BY AN ATTORNEY OR HIS/HER AGENT...IN ANTICIPATION OF LITIGATION [SLIDE 14] ATTORNEY WORK PRODUCT • "ANTICIPATION OF LITIGATION" IS THE MOST DIFFICULT TEST - LITIGATION DOES NOT HAVE TO OCCUR, BUT THERE MUST HAVE BEEN ANTICIPATION (CONCRETE POSSIBILITY) - INCLUDES CIVIL, CRIMINAL AND ADMINISTRATIVE LITIGATION, AS WELL AS AMICUS BRIEFS [SLIDE 15] ATTORNEY WORK PRODUCT • GOVERNMENT HAS BURDEN OF PROVING ANTICIPATION OF LITIGATION • PROTECTION DOES NOT END WHEN LITIGATION IS OVER - NO TEMPORAL LIMITATION • NO REQUIREMENT TO SEGREGATE FACTS WHEN USING ATTORNEY WORK PRODUCT [SLIDE 16] ATTORNEY - CLIENT PRIVILEGE • PURPOSE - PROTECT CONFIDENTIAL COMMUNICATIONS - BETWEEN ATTORNEY AND CLIENT - REGARDING LEGAL MATTER FOR WHICH CLIENT SEEKS PROFESSIONAL ADVICE [SLIDE 17] ATTORNEY-CLIENT PRIVILEGE • PROTECTS FACTS DIVULGED BY CLIENT TO ATTORNEY AND OPINIONS GIVEN BY ATTORNEY BASED ON THOSE FACTS • OF THE THREE MAIN PRIVILEGES USED BY GOVERNMENT - USED THE LEAST • NO TEMPORAL ELEMENT [SLIDE 18] ATTORNEY CLIENT PRIVILEGE • CRUCIAL QUESTIONS - IS THE ATTORNEY ACTING AS AN ATTORNEY? NOT ENOUGH THAT PERSON RECEIVING THE COMMUNICATION HAPPENS TO BE AN ATTORNEY. - HAS THE CONFIDENTIALITY BEEN BLOWN? [SLIDE 19] OTHER PRIVILEGES • MUST BE WELL-SETTLED OR WELL-RECOGNIZED - EXAMPLES • GOVERNMENT BID ON CONTRACT PROTECTED UNTIL TIME OF HARM PASSES • REALTY APPRAISALS • EXPERT WITNESS APPRAISALS • AIRCRAFT ACCIDENT WITNESS STATEMENTS [SLIDE 20] WAIVER/DISCRETIONARY RELEASES • WAIVER - GENERAL RULE IS PRIOR VOLUNTARY RELEASE BY AGENCY WAIVES THE PRIVILEGE - OFFICIAL DISCLOSURES - NOT "LEAKS" - BEWARE SELECTIVE DISLOSURE [SLIDE 21] DISCRETIONARY RELEASE AND FORESEEABLE HARM STANDARD • ATTORNEY GENERAL'S MEMO OF OCTOBER 4, 1993: - DO NOT WITHHOLD INFORMATION UNLESS IT NEEDS TO BE WITHHELD - DOJ WILL DEFEND FOIA EXEMPTION ONLY IN THOSE CASES WHERE THE AGENCY REASONABLY FORESEES THAT DISCLOSURE WOULD BE HARMFUL TO AN INTEREST PROTECTED BY THAT EXEMPTION.