One of the three major protections incorporated in Exception 5 of the Freedom of Information Act, 5 U.S.C. § 552(b) is the attorney’s work-product protection (5). It preserves documents prepared in anticipation of litigation by an attorney or others, maintaining the adversarial trial process by protecting materials that would reveal the argument or trial strategy theory of the attorney. See, for example, Coastal States Gas Corp. v. Energy Department, 617 F.2d 854, 8644. (D.C. Cir. 1980).
The Supreme Court ruled on June 6 in FTC v. Grolier, Inc., 103 S. Ct. 2209 (1983), a FOIA case in which it squarely held that work-product attorney-qualified materials were entitled to permanent immunity from Exemption 5. (See this issue of the FOIA Update at 1-2.) In the wake of this important ruling, it is especially beneficial to reflect on other aspects of the work-product privilege of the attorney, particularly as they have been discussed in Exemption 5 cases.
A document must be prepared in preparation of litigation to qualify as a work-product attorney. In particular, this implies that before “at the very least some articulable claim, likely to lead to litigation,” has occurred, the right does not bind. Coastal States Gas Corp. v. Energy Department, supra, 617 F.2d at 865. “See also Kent Corp. v. NLRB, 530 F.2d 612, 623 (5th Cir.) (although litigation never followed, “the possibility of litigation [was] recognizable because of particular allegations that [had] already arisen”), cert. Refused, 429 U.S. 92020 (1976).
Also documents drawn up when the identity of the opposing party was not yet established, but where litigation was highly likely to occur in a particular factual sense, were deemed “prepared in anticipation of litigation” and were thus withholdable under Exemption 5. See Anderson v. United States Parole Comm’n, 3 GDS 83,055 at 83,557 (D.D.C. 1983) (compilations of court cases sometimes used in Commission cases); Car Importers of America, Inc. v. FTC, 3 GDS 82,488 at 83,226 (D.D.C. 1982); (memoranda setting forth agency options for enforcement program). But only cf. Jordan v. Department of Justice of the United States, 591 F.2d 753, 775-76 (D.C. Cir. 1978).
It is also well known that, as long as they operate under the general direction of lawyers, non-lawyers can author documents that constitute work-products. See, e.g., 466 F., Exxon Corp. v. FTC. Supp. Sup. 1088, 1099, aff’d, 663 F.2d 120 (D.C. Cir. 1980) (D.D.C. 1978), (report prepared by outside economic consultants relating to litigation strategy).
It should be recalled that the work-product privilege of the attorney is different from the other primary privileges recognized under Exemption 5, because there may be significant variations in defense. For example, unlike the right of the attorney-client, work-product protection is not restricted to correspondence between lawyer and client. And unlike the privilege of the deliberative process — where factual facts must be isolated from the deliberative content — the privilege of the work-product offers much greater security, since such factual material also exposes the tactical and strategic thinking of the attorney about the litigation. See Mervin v. FTC, 591 F.2d 821, 826-27 (D.C. Cir. 1978). See also, e.g., Dames & Moore v. Treasury Department of the United States, 544 F. Supp. Sup. (Although evidence may be on the public record, arrangement and categorization of information is representative of the methodology of the attorney) 94, 98-99 (C.D. Cal. 1982).
After the elements of the work-product privilege of the attorney have been identified, there is often the problem of whether the privilege has been lost or waived by prior disclosure or misconduct. In the sense of the FOIA, the defense of attorney work-product privilege was held not to have been waived where documents were exchanged with a party having a mutual interest with the government. See Chilivis v. SEC, 673 F.2d 1205, 1211-12 (disclosure to another federal agency) (11th Cir. 1982); Indian Law Resource Center v. Interior Department, 477 F. Supp. Sup. 144, 148 (1979 D.D.C.) (disclosure to entity acting as “confidential” agent of client). (For a thorough discussion of waiver through prior disclosure, see FOIA Update, Spring 1983, at 6.) However, the unprofessional or wrongful actions of an attorney can result in the privilege being lost. See, for instance, Moody v. IRS, 654 F.2d 795, 800 (D.C. Cir.), 527 F. on remand. Supp. Sup. 535, 537 (D.D.C. 1981), 682 F.2d 266, 2688 F.2d 266, 2687 (D.D.C. 1981), remanded (D.C. Cir. 1982).
Documents containing final decisions or suggestions that are ultimately accepted by an organization are one such problem area. It has been maintained that it maintains its protected status if a document qualifies as a work-product, even though it becomes the basis for a final decision by the department. See, e.g., 525 F., Iglesias v. CIA. Supp. Sup. 547 and 559 (D.D.C. 1981). The work-product right can, however, be vitiated where litigation is foreclosed as an option and the agency specifically adopts a legal memorandum in its final decision. See Niemeier v. Special Prosecution Force Watergate, 565 F.2d 967, 9744. (7th Cir. 1977). See also, at 155., NLRB v. Sears, Roebuck & Co., supra, 421 U.S.
In short, the work-product protection of the attorney, as incorporated in Exemption 5, provides a powerful justification for shielding records of disclosure that would hinder the operation of the attorneys of the government in a litigation or pre-litigation environment. Especially now, after the large decision of the Supreme Court in Grolier, its applicability to the records of agencies should always be considered.