Fixing FOIA: Amend Exemption (b)(5)
Justin R. McCarthy, Research Associate
January 28, 2013
What is FOIA?
Freedom of Information Act (FOIA)
5 U.S.C. § 552
Each agency, upon any request for records…shall
make the records promptly available to any
person.
Exemption (b)(5)
Compulsory disclosure under FOIA
does not apply to:
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.
Civil Discovery Context
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim.
Limits as applied under (b)(5) include:
 Government attorney-client privilege
 Government attorney work product protection
 State secrets privilege
 Deliberative process privilege
Fixing FOIA
Expressly limit the (b)(5) exemption to:
 Confidential communications between attorney and
client for the purpose of obtaining legal advice;
 Materials prepared in anticipation of litigation;
 Mental impressions, calculations, opinions, or legal
theories of a party’s attorney or representative
concerning litigation; and,
 Deliberative process material
Deliberative Process
I.
Must be pre-decisional:
 Prepared in order to assist an agency decision-maker in arriving at a
decision, rather than to support a decision already made
II. Must be deliberative:
 Reflects the give-and-take of the consultative process; does not
apply to factual information (raw data) on which opinion or
recommendatory portion relies
III. Must remain confidential
 Material is not deliberative if the policy at issue is officially adopted,
or if the protected information is leaked or otherwise disclosed
outside the agency
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