More recently, in Judicial Watch, Inc. v. The D.C. Circuit Department of Justice used the President`s communication privilege — a privilege he had recognized only seven years earlier (267) — with the exception of FOIA Exception 5, to protect Justice Department records on the exercise of the President`s constitutional power to grant pardons. (268) This privilege, which protects communications between the President and his advisers, is unique among those recognized under Exception 5 of the FOIA in that it is “inextricably rooted in the separation of powers under the Constitution.” (269) Although it is similar to the privilege of the consultation process, it has a broader scope since it “applies to documents in their entirety and includes final and ex post documents as well as pre-advisory documents”. (270) However, an important issue that has not yet been definitively resolved is whether privilege protects all records created within a body to assist the President in the exercise of his or her non-delegable constitutional functions, or whether it is limited to records “requested and received by the President or his or her immediate advisers in the Office of the President”. (271) On the other hand, the documents post-date the decision. They usually contain policy statements and concluding opinions that have the force of law (84), implement an established policy of an agency (85) or explain actions already taken by an agency. (86) Exception 5 does not normally apply to post-decision documents, as “the public is crucially concerned about the reasons on which an agency policy actually adopted was based”.
(87) However, if a document is formally a document after the decision-making procedure and its content is a preliminary decision-making procedure, it may be eligible for protection. For example, one court held that an electronic message generated after the relevant Agency decision, but merely repeated the Agency`s preliminary decisions and the author`s own recommendations, could essentially be taken before a decision and was therefore eligible for protection under exception 5. (88) Although initially “it was not clear that Exception 5 was to cover all civil privileges”, (4) the Supreme Court subsequently clarified that the scope of Exception 5 is quite broad and includes both statutory and generally recognized privileges and is not limited to privileges expressly mentioned in its legislative history. (5) Accordingly, the District of Columbia Circuit Court of Appeals concluded that the “unambiguous” legal language includes “all of the civil disclosure rules of the FOIA [exception 5].” (6) However, this inclusion of discovery privileges requires that a privilege be applied in the context of FOIA exactly as it exists in the context of discovery. (7) Thus, the precise contours of a privilege to the parties involved or the types of information that can be protected are also included in the FOIA. (8) The FOIA shall not extend, reduce or create new privileges. (240) However, the Supreme Court has pointed out that Exception 5 can cover virtually all discovery privileges; If a record is protected from civil disclosure, it is also protected from mandatory disclosure under the FOIA. (241) Given that Rule 501 of the Federal Rules of Evidence allows courts to create privileges when necessary,(242) it is possible that “new privileges” may be applied under Exception 5. (243) However, when applying an discovery privilege under the FOIA, an important caveat should be noted that a privilege should not be invoked against a requester who regularly receives such information in the course of civil investigations.
(244) 77th Id., p. 868; see also Providence Journal Co. v. United States Dep`t of the Army, 981 F.2d 552, 559 (1st Cir. 1992) (protecting IG recommendations, although decision-makers were not required to follow them); Formaldehyde Inst. v. HHS, 889 F.2d 1118, 1123 (D.C. Cir. 1989) (protection of recommendations on the suitability of the article for publication, although the decision to publish the article has not yet been made); Greenberg, 10 F. Supp. 2d to 17 (stating that an “assessment of the legal status” of a case would be protected, but an “instruction from a senior officer to a junior officer as to the legal action to be taken – a final decision.
does not merit protection under exception 5″); Indus horse`s head. c. EPO, No. 94-1299, Slip op. cit. at 14 (D.D.C. 1 October 1996) (“In determining whether documents are the subject of a preliminary decision, the courts must consider the role they have played in the decision-making process. An opinion of an official of the Agency or preliminary conclusions reported by a public affairs officer do not necessarily constitute an EPA policy statement or a final opinion with the force of law. »); Knowles v.
Thornburgh, no. 90-1294, Slip op. cit. at 5-6 (D.D.C. Mar. 11, 1992) (the existence of information generated during the proceedings preceding the President`s final decision on the leniency objection was a preliminary decision); see Sw. Ctr. for Biological Diversity v. USDA, 170 F. Supp. 2d 931, 940 (D. Ariz.
2000) (respondent`s position that disclosure of information would “cause humans to disturb nesting falcons,” which would alter the agency`s advisory process by influencing the results of scientific studies), rejected as “weak” for other reasons, 314 F.3d 1060 (9th Cir. 2002); Animal Legal Def. Fund, Inc. v. Dep`t of the Air Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999) (denial of claims of privilege because the agency “completely failed to specify the role of each undisclosed record” in the policy-making process). LexisNexis® and Bloomberg Law are external online distributors of ALM`s extensive collection of current and archived versions of legal news publications. LexisNexis® and Bloomberg Law clients may access and use ALM content, including content from the National Law Journal, The American Lawyer, Legaltech News, New York Law Journal and Corporate Counsel, as well as other sources of legal information.
Several criteria were developed to illustrate the “often blurred” distinction between documents before and after the decision-making process. (93) First, an authority should determine whether the document constitutes “definitive notice” within the meaning of one of the FOIA`s two “automatic” disclosure provisions, namely paragraph (a)(2)(A). (94) In a detailed consideration of this point, the Court of Appeals for the Fifth Circuit found that, since paragraph (a)(2)(A) specifies “the disposition of a case,” Congress intended to be “final opinions” only those resulting from proceedings (such as Sears) in which a party invoked (and obtained a decision on) a specific statutory right to “general and uniform” applicability. (95) However, the Washington Circuit has stated that the Field Service Advice Memoranda (“FSA”) issued by the Office of Legal Counsel of the Internal Revenue Service are not preliminary ruling documents because they constitute `statements of the legal position of an authority`. (96) The Court reached this conclusion even though the comments were considered `non-binding` for the final decision-makers. (97) A secondary issue is the applicability of the lawyer`s work product privilege to testimony. In the context of civil disclosure, the Supreme Court recognized at least one civil communication privilege for such documents – these documents were found only after proof of necessity and justification. (210) On the basis of the “routine and normally detectable” testing of the Grolier and Weber aircraft, the DC circuit decided that the testimonies were eligible for protection under exception 5.
(211) Although, on the other hand, some courts have erred in holding that testimony is merely unprotected factual information that must be separated in order to be disclosed,(212) the weight of the case law leads to the conclusion that the contours of the privilege of exception 5 are compatible with the scope of protection of the privilege of the work product of counsel. (213) Indeed, the testimony was precisely the case at issue in Hickman v. Taylor (214), in which the Supreme Court set out the doctrine of solicitor`s product privilege. (215) 108. Brinton, 636 F.2d to 605; see also AFGE v United States Dep`t of Commerce, 632 F. Supp. 1272, 1276 (D.D.C. 1986); Ashley, 589 F. Supp.
to 908; cf. Shumaker, Loop & Kendrick v. Commodity Futures Trading Comm`n, Nr. 97-7139, Slip op. cit. at 14 (N.D. Ohio 27 Nov. 1997) (protection of an advisory document in which there was “no indication that the author of the document was authorized to establish agency policy”). A quarter of a century ago, in Federal Open Market Committee v. Merrill,(245) the Supreme Court found in Exception 5 an additional privilege contained in Exception 5 on the basis of Federal Rule of Civil Procedure 26(c)(7), which states that “for cause. a trade secret or other confidential research, development or business information” is protected from discovery. This restricted privilege is available “at least to the extent that such information is generated by the government itself as part of the procurement procedure” and expires when the contract is awarded or the tender is withdrawn.