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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) Justin R. McCarthy, Research AssociateJanuary 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 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 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 • 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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