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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
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
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