Fixing foia amend exemption b 5
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Fixing FOIA: Amend Exemption (b)(5) PowerPoint PPT Presentation


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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).

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Fixing FOIA: Amend Exemption (b)(5)

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Fixing foia amend exemption b 5

Fixing FOIA: Amend Exemption (b)(5)

Justin R. McCarthy, Research AssociateJanuary 28, 2013


What is foia

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

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

Civil Discovery Context

Parties may obtain discovery regarding any non-privilegedmatter 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

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

Deliberative Process

  • 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

  • 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

  • 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


Judicial watch inc

Judicial Watch, Inc.

Questions?

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