FOIA Update
Vol. VIII, No. 2
1987

OIP Guidance

Until quite recently, a substantial question existed as to whether witness statements -- compiled by an agency either verbatim or in summary form -- could be protected from mandatory disclosure under the Freedom of Information Act. However, at least with respect to those statements created in anticipation of litigation, recent federal appellate court decisions have significantly clarified the expansive protection applicable to such sensitive documents through the attorney work-product privilege under Exemption 5, 5 U.S.C. § 552(b)(5).

As a preliminary matter, it should be remembered that Exemption 5 -- which 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" -- is generally understood to cover those documents "normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). It has long been held to incorporate the attorney work-product privilege, see id., which protects materials "prepared in anticipation of litigation." Fed. R. Civ. Pro. 26(b)(3); see also FOIA Update, Summer 1983, at 6. However, in the late 1970s, four courts of appeals construed the attorney work-product doctrine more narrowly in the FOIA context than in the context of civil discovery, holding that, for FOIA purposes, only the deliberative portions -- and not the factual portions -- of records compiled in anticipation of litigation could be withheld. See Mervin v. FTC, 591 F.2d 821, 825-26 (D.C. Cir. 1978); Robbins Tire & Rubber Co. v. NLRB, 563 F.2d 724, 734-37 (5th Cir. 1977), rev'd on other grounds, 437 U.S. 214 (1978); Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1138 (4th Cir. 1977); Title Guarantee Co. v. NLRB, 534 F.2d 484, 492-93 n.15 (2d Cir.), cert. denied, 429 U.S. 834 (1976).

Subsequent to these decisions, though, the Supreme Court in United States v. Weber Aircraft Corp., 465 U.S. 792, 800 n.17 (1984), a FOIA case applying the aircraft-accident report privilege, ruled that Exemption 5 permits the withholding of entire records, including factual portions, to the same extent that they would be protected by a recognized privilege in civil discovery. Based primarily upon Weber Aircraft, the Department of Justice three years ago advanced the position that the prior appellate decisions on the subject were incorrect and that Exemption 5 should be interpreted to encompass the attorney work-product privilege in the FOIA context just as broadly as it is interpreted in the civil discovery context. FOIA Update, Fall 1984, at 6.

Late this spring, in Martin v. Office of Special Counsel, 819 F.2d 1181 (D.C. Cir. 1987) the D.C. Circuit became the first court of appeals to address this broad new approach to attorney work-product records sought under the FOIA. There the government's broad protection position was embraced completely by a unanimous panel, which squarely rejected the previous factual/deliberative distinction and approved attorney work-product protection for the entireties of the documents at issue in that case -- verbatim witness statements and witness statement summaries. Id. at 1186-87.

In Martin, the D.C. Circuit referred to the Supreme Court's seminal attorney work-product privilege case by observing that "[a] clearer case for the application of Hickman v. Taylor[, 329 U.S. 495 (1947),] is difficult to imagine." 819 F.2d at 1187. In describing the verbatim statements and the "attorney notes taken during the witness interviews," it explicitly adopted the agency's characterization of these documents as "classic examples of work-product." Id.

Martin was the first FOIA decision to recognize attorney work-product protection for witness statements compiled in anticipation of litigation -- in that case compiled in contemplation of "quasi-judicial" hearings before the Merit Systems Protection Board. See id. at 1187-88. However, the privileged status of federal agency witness statements has consistently been recognized by the courts in a wide variety of civil litigation proceedings. Examples include proceedings under the Federal Labor Standards Act, see, e.g., Brennan v. Engineered Prod., 506 F.2d 299, 302 (8th Cir. 1974); Brock v. Frank V. Panzarino, Inc., 109 F.R.D. 157, 159 (E.D.N.Y. 1986), investigations leading to civil antitrust suits, see, e.g., United States v. International Bus. Mach. Corp., 415 F. Supp. 668, 670 (S.D.N.Y. 1976); United States v. American Optical Co., 37 F.R.D. 233, 237 (E.D. Wis. 1965); United States v. Aluminum Co. of America, 34 F.R.D. 241, 243 (E.D. Mo. 1963), and civil rights investigations under the Fair Housing Act of 1968, see, e.g., United States v. Chatham City Corp., 72 F.R.D. 640, 643 (S.D. Ga. 1976). Attorney work-product protection also is routinely accorded to the government's witness statements compiled in its defense of personal injury lawsuits, see, e.g., Ownby v. United States, 293 F. Supp. 989, 990 (W.D. Okla. 1968), and in its defense of admiralty suits, see, e.g., Alltmont v. United States, 177 F.2d 971, 978 (3d Cir.) (en banc), cert. denied, 339 U.S. 967 (1950).

To be sure, there remains some question whether the awkward threshold language of Exemption 5 ("inter-agency or intra-agency memorandums or letters") would pose an obstacle to the incorporation of these precedents into the FOIA context. See Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 982, 985 (9th Cir. 1985) (statements provided by nongovernment witnesses to government investigators held not "internal agency documents"); Poss v. NLRB, 565 F.2d 654, 659 (10th Cir. 1977) (same); Kilroy v. NLRB, 633 F. Supp. 136, 140 (S.D. Ohio 1985) (same), aff'd mem., 823 F.2d 553 (6th Cir. 1987). These three circuit court rulings indicate that Exemption 5's threshold can be taken as a protection barrier.

However, the D.C. Circuit in several comparable contexts has rejected a narrow, exclusive reading of the exemption's threshold language. See, e.g., Durns v. Bureau of Prisons, 804 F.2d 701, 704 n.5 (D.C. Cir. 1986) (employing "functional rather than a literal test in assessing whether [presentence reports] are 'inter-agency or intra-agency'" memoranda), petition for cert. filed, No. 86-6550 (U.S. Mar. 17, 1987); Ryan v. Department of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980) (adopting "common sense" interpretation of "intra-agency" to protect recommendations from senators to attorney general); Soucie v. David, 448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971) (government's "special need" for opinions of outside consultant requires that his report "be treated as an inter-agency memorandum"); see also Lead Indus. Ass'n v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979) (reports from outside consultants held to qualify); Wu v. National Endowment for Humanities, 460 F.2d 1030, 1032-33 (5th Cir. 1972) (recommendations from "unpaid outside experts" treated as "intra-agency memorand[a]"), cert. denied, 410 U.S. 926 (1973); FOIA Update, June 1982, at 10. (Because the particular witness statements sought in Martin were provided by federal employees, the D.C. Circuit had no occasion to consider this threshold Exemption 5 issue in that case. See 819 F.2d at 1186-87.)

Moreover, the rulings of the Sixth, Ninth and Tenth Circuits on this issue stand in sharp contrast to the thrust of the Supreme Court's ruling in Weber Aircraft, in which it declared that to construe the FOIA to permit a requester to obtain records that are "normally privileged would create an anomaly in that the FOIA could be used to supplement civil discovery. We have consistently rejected such a construction of the FOIA. We do not think that Congress could have intended that the weighty policies underlying discovery privileges could be so easily circumvented." 465 U.S. at 801-02 (citations omitted). Only the D.C. Circuit's "functional" approach to Exemption 5's threshold gives full effect to the policies underlying the attorney work-product privilege; consistent with it, Exemption 5 protection should be extended to even nongovernment employee witness statements.

Finally, it should not be forgotten that in some circumstances other privileges under Exemption 5 may afford protection for certain witness statements. See, e.g., Weber Aircraft, 465 U.S. at 799 (statements in aircraft accident reports); Ahearn v. Army Materials & Mechanics Research Center, 583 F. Supp. 1123, 1124 (D. Mass. 1984) (statements given in inspector general investigations). Similarly, other exemptions may provide some protection. For example, Exemption 7(D), 5 U.S.C. § 552(b)(7)(D), allows the withholding of all information furnished by a confidential source in a criminal or national security investigation, but in a civil investigation it protects only that information which could reasonably be expected to disclose the source's identity. Exemption 7(D) would not cover a witness statement obtained for civil law enforcement purposes, except to the extent that disclosure of its contents could identify the source.

In sum, the attorney work-product privilege, as incorporated by Exemption 5, provides an entirely appropriate basis for withholding the entireties of witness statements compiled in anticipation of litigation. Pursuant to the precedents of the Supreme Court and D.C. Circuit on this issue, agencies should avail themselves of this protection. Such an approach avoids the "anomaly" which concerned the Supreme Court by affording these records the same measure of protection under the FOIA that they properly enjoy under civil discovery.

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