FOIA Update
Vol. IV, No. 3
1983

In a broad decision based upon two independent grounds, the United States Supreme Court held on June 6, by a vote of 9-0, that attorney work-product material does not lose its protection under Exemption 5 with the passage of time.

The Supreme Court's ruling in FTC v. Grolier, Inc., 103 S. Ct. 2209, 3 GDS ¶ 83,193 (1983), squarely reversed the controversial holding of the U.S. Court of Appeals for the District of Columbia Circuit that attorney-work product material relating to a subsequently closed case loses its protected status under Exemption 5 unless "litigation related to the terminated action exists or potentially exists." (See FOIA Update, June 1982, at 8.)

As the primary basis for the Supreme Court's decision, Justice Byron R. White, writing the opinion of the Court, emphasized that the "literal language of the [attorney work-product] Rule protects materials prepared for any litigation or trial as long as they were prepared by or for a party" to that litigation.

Justice White then went on to articulate a second basis for the Court's decision, one more fundamental to the nature of Exemption 5. The "test under Exemption 5," he made clear. "is whether the documents would be 'routinely' or 'normally' disclosed in civil discovery." Under that construction of Exemption 5, the documents in question were unquestionably exempt.

In a concurring opinion, Justice William J. Brennan, Jr., joined by Justice Harry A. Blackman, emphasized that the quality of an attorney's litigation preparation would suffer "real harm" if his written thoughts and strategies were later subject to disclosure. He found this danger particularly acute with respect to government agencies which "deal with hundreds or thousands of essentially similar cases in which they must decide whether and how to conduct enforcement litigation." Justice Brennan expressed concern that an opposing party could "get the benefit of the agency's legal and factual research . . . . Worse yet, he could gain insight into the agency's general strategic and tactical approach to deciding when suits are brought, how they are conducted, and on what terms they may be settled."

Writing for the Court, Justice White concluded with an observation that may well portend a highly pragmatic approach by the Supreme Court to FOIA issues: "Only by construing the exemption to provide a categorical rule can the Act's purpose of expediting disclosure by means of workable rules be furthered."

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On June 27, the Supreme Court granted the government's petition for certiorari in Weber Aircraft Corp. v. United States, 688 F.2d 638 (9th Cir. 1982), in which the U.S. Court of Appeals for the Ninth Circuit refused to accord Exemption 5 protection to Air Force accident investigation report. (See FOIA Update, Jan. 1983, at 5.) The case should be scheduled for oral argument soon after the Court reconvenes next fall.

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The Solicitor General has also recently petitioned for certiorari in Washington Post Co. v. Department of State, 685 F.2d 698 (D.C. Cir. 1982), in which the U.S. Court of Appeals for the D.C. Circuit ruled that Exemption 3 is not broad enough to protect records of expenditures from the State Department's "Emergency Fund." (See FOIA Update, Jan. 1983, at 5.)

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