(12) Indeed, such an approach, combined with a careful application of Exemption 5's threshold language, is the only means by which the Supreme Court's firm admonition against use of the FOIA to circumvent discovery privileges can be given full effect. (11) Accordingly, no requester is entitled to greater rights of access under Exemption 5 by virtue of whatever special interests might influence the outcome of actual civil discovery to which he is a party. (8)Īdditionally, it is not the "hypothetical litigation" between particular parties (in which relevance or need are appropriate factors) that governs Exemption 5's applicability (9) rather, it is the circumstances in civil litigation in which memoranda would "routinely be disclosed." (10) Therefore, whether the privilege invoked is absolute or qualified is of no significance. (7) Thus, the precise contours of a privilege, with regard to applicable parties or the types of information that are protectible, are also incorporated into the FOIA. " (6) However, this incorporation of discovery privileges requires that a privilege be applied in the FOIA context exactly as it exists in the discovery context. (5) Accordingly, the Court of Appeals for the District of Columbia Circuit has stated that the statutory language "unequivocally" incorporates "all civil discovery rules into FOIA.
Freedom of Information Act Guide, May 2004Įxemption 5 of the FOIA protects "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) The courts have construed this somewhat opaque language, with its sometimes confusing threshold requirement, (2) to "exempt those documents, and only those documents that are normally privileged in the civil discovery context." (3)Īlthough originally it was "not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery," (4) the Supreme Court subsequently made it clear that the coverage of Exemption 5 is quite broad, encompassing both statutory privileges and those commonly recognized by case law, and that it is not limited to those privileges explicitly mentioned in its legislative history.