THE WHITE HOUSE Washington MEMORANDUM FOR ALL … · the November 4, 1982 memorandum from President Reagan to the heads of departments and agencies (copy attached), to comply with

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THE WHITE HOUSE

Washington

July 30,2009

MEMORANDUM FOR ALL EXE~r, U IVE DEPARTMENT AND AGENCY HEADS

FROM: GREGORYCRAI I '

COUNSEL TO T . SIDENT

SUBJECT: CONGRESSIONAL REQUESTS FOR INFORMATION

This memorandum sets forth the overall policy of this Administration with respect to congressional information requests to departments and agencies and describes the procedures that should be followed when departments and agencies receive congressional requests for information concerning White House communications or deliberations.

This Administration will follow the longstanding policy of the Executive Branch, as set forth in the November 4, 1982 memorandum from President Reagan to the heads of departments and agencies (copy attached), to comply with congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.

Congressional requests to departments and agencies for information reflecting deliberations within the White House or communications to or from the White House should be handled according to the procedures set forth below. These procedures are designed to ensure that this Administration acts responsibly and consistently with respect to White House confidentiality interests, with due regard for the responsibilities and prerogatives of Congress:

First, a department or agency receiving a request for any document created in the White House (including a White House policy council) or any document created in a department or agency that reflects the deliberations of, or communications to or from, White House officials, should promptly notify the Office of the Counsel to the President. In addition, that department or agency should notify the White House Office of Legislative Affairs of the congressional request.

Second, the Office of the Counsel to the President, together with the department or agency (and, where appropriate, the Department of Justice), will work with appropriate congressional representatives to determine whether a mutually satisfactory accommodation is available.

Third, if efforts to reach a mutually satisfactory accommodation are unsuccessful, and if release of the document would pose a substantial question of executive privilege, the Counsel to the President will consult with the Attorney General and the affected departments and agencies to determine whether to recommend that the President invoke the privilege.

We believe that these procedures will facilitate the resolution of issues relating to disclosures to Congress and will maximize the opportunity for reaching mutually satisfactory accommodations with Congress. We will try to cooperate with reasonable congressional requests for information in ways that preserve the President's ability to discharge his constitutional responsibilities.

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THE WHITE HOUSE

WASHINGTON

November 4, 1982

l-1EHORANDUH FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: Procedures Governing Responses to Conqressional Requests for Information

The policy of this Administration is to comply with Congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Ex~cutive Branch. While this Administration, like its prede~ cessors, has an obligation to protect the confidentiality of some communications, executive privilege will be asserted only in the most compelling circumstances, and only after careful review demonstrates that assertion of the privilege is necessary. Historically, good faith negotiations between Congress and the Executive Branch have minimized the need for invoking executive privilege, and this tradition of accommodation should continue as the primary means of resolving conflicts between the Branch~s. .To ensure that every reasonable· accommodation

~ is made to the needs of Congress, executive pri~ilege shall not be invoked without specific Presidential authori~ation.

The Supreme couit has held that the Executive Branch may occasionally find it necessary and proper to preserve the confidentiality of national security secrets, deliberative communications t~~~ form a p~rt of ~he decision-makinJ process, or other information important to the discharge of the Executive Branch's constitutional responsibilities. Legitimate and appropriate claims of privilege should not thoughtlessly be waived. However, to ensure that this Administration acts responsibly and conSistently in the exercise of its duties, with due regard for the responsibilities and prerogatives of Congress, the following procedures shall be followed whenever Congre~ssional requests for information raise concerns regarding the confidentiality of the information sought: .

1. Congressional requests for information shall be complied with as promptly and as fully as possible, unless it is determined that compliance raises a substantial question of executive privilege. A "substantial question of executive privilege" exists if disclosure of the information requested might significantly impair the national security (including the conduct of foreign relations), the deliberative processes of the Executive Branch or


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other aspects of the performance of the Executive Branch's constitutional duties.

2. If the head of an executive department or agency ("Department Head") believes, after consultation with d~partment counsel, that compliance with a Congressional request for information raises a substantial question of executive ~~ivilege, he shall promptly notify and consult with the Attorney General through the Assistant Attorney General for the Office of Legal Counsel, and shall also promptly notify and consult with the Counsel to

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the President. If the information requested of a department or agency derives in whole or in part from information received from another department or agency, the latter entity shall also be consulted as to whether disclosure of the information raises a substantial question of executive privilege.

Every effort shall be made to comply with the Congressional request in a manner consistent with the legitimate needs of the Executive Branch. The Department Head, the Attorney General and ~he Co~nsel to the President may, in the exercise of their discretion in the circumstances, determine that executive privilege shall not be invoked and release the requested information.

4. ·If t~~ Department Head, the Attorney General or the Counsel to the President believes, after consultation, that the circumstances justify invocation of executive privilege, the issue shall be presented to the President by the Counsel to the President, who will advise the Department Head and the Attorney General of the President's decision.

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Pending a final Presidential decision on the matter, the Department Head shall request the Congressional body to hold its request for the information in abeyance. The Department Head shall expressly indicate that the· purpose of this request is to protect the privilege pending a Presidential decision, and that the request itself does not constitute a claim of privilege.

If the President decides to invoke ~xecutive privilege, the Department Head shall advise the

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requesting Congressional body that the claim of executive privilege is being made with the specific approval of the President.

Any questions concerning these procedures or related matters should be addressed to the Attorney General, through the Assistant Attorney General for the Office of Legal Counsel, and to the Counsel to the President.

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Confidentiality or the Attorney General's Communications in Counseling the President

IThe following memorandum eJlamine~ Ihe scope of confidenl ialil)' acCQrded Ihe AUomcy General's communicalions Wllh 1110: Presidenl, Dnd lhoe eXlenl 10 which Ihose communicallons rna)' be shielded from compulsory dlsc lo~ure 10 Members of Congress, Ihe courts , and members of Ihe publ IC. II considers Ihe dual nalure of Ihe Allomcy General's role as Cabmel member and as principal legal adviser 10 Ihe Presidenl, and extends 10 Ihe broa,der qUC5lion oflhe confidenllalu), of Ihe de ll beralive mllleriab gencralro by Ihe Anomey General and lhooe who assist him . The me m()T'dndum d,scusses Ihe appi lcablilly of lhe doc.1rine of e~c<:utive privilege. and the appropriate clrcumslances for liS in'lOCDtion. II also ana lyZ<'s the scope of the delibenni'IC process and attorne)" el ien! pnvlleges under the Freedom of In fonualion ACI , and of Ihe !radil ional governmental evidentiary pnv ileges and lheir statutory coumerparts.]

Augusl 2 , 1982

MEMORANDUM FOR THE ATTORNEY GENERAL

You have asked this Office 10 advise you regarding the scope of confidentiality accorded your communications with the President in your role as Attorney General. Your inqui ry focused particularly on the c!xtent to which legal advice rendered by you 10 the President may be shielded from compulsory disclosure to Members of Congress. the courts, and members of the public. Our analysis of these issues includes the broader subject of the confidentiality of the deliberative materials generated by you, and those who assis t you , in the performance of your responsibilities as adviser to the President. We ,also discuss briefly certain privileges which protect other communications generated by the Department of Justice in the course of performing its duties.

Any d iscussion of the con fidential nature of the A.ttorney General's communi· cations with the President must begin with a recognition of the dual counse ling functions performed by the Attorney General. The Attorney General serves as both a Cabinet adviser and the principal legal adviser to the President. 1 As a member of the President 's Cabinet , the Attorney G!neral maintains a elosc and confidential advisory relationship with the President over a broad range of policy issues, including the highest and most delicate affairs of state. See, e.g ., Ranld n,

I 1ft 1828 Anorney Go ... "1 Win descnbed . he AUOTTle) (;""".31 as "~onfidcnt I3 1 Ia'" /ldvise, lO Ihc: Exe~ull'" brnnch oflhe 8""emmenc" Su II Cummlng< and C McParlmld . Fedmrl Ju."<e 91 ( 1937). In c""" lengchy e .. ayo ..,alYLin8 the e"xuUoe dcponrmn" and ,'''' AUumey Gone .. 1 In panl< ulat. fo""". AUomey c;"neral Cu,h108 dcscnbed rhe dep.l l1mem heads as rhe ~Idenc'. "conslllwloo, 1 coo~<ellors . " hIS "pol u i~.1 01 ronfidenllal mlnlSlCrS." and h,. "c.,."" lUclonal adol"''''.'' 7 Of'. A.o' y C"," 45) ( 111551. 6 Op. il.u'y Gon. 326 (18j.4 )

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Assistant Attorney General , Office of Legal Counsel, " Memorandum for the Attorney General re: Secrecy of Cabinet Proceedings and P'.tpers" (Oct. 15, 1954). This advisory relationship to the President, a relationship shared by all members of the President 's Cabinet, is constitutionally based . Article D, § 2, of the Constitution provides that the President

may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices . ...

With respect to the Attorney General, this constitutional duty was carried over into statute by § 35 of the Judiciary Act of 1789, I Stat. 93, which re<Juired the Attorney General "to give his advice: and opinions upon questions of law when required by the President of the United States." This provision is now codified in 28U.S.C. §511. 2

We note , as a preliminary matter, that the confidemiality of the communications discussed herein cannot be analyzed without consideration of the contenlS of the communications , including the identities of the persons generating the communications and the persons to whom they are addressed. as well as the identities of the persons seeking disclosure. Generally speaking, however, the conclusions reached in this memorandum, and discussed in detail below, are as follows:

I. The President may assert an arguably absolute executive privilege against the Legislative Branch and in the courts to protect from disclosure communications involving military, diplomatic, or naliona! security secrets;l a qualified

I The: originallan~uage 011 JS dille 171$9 Judiciary Act lias RmalOOd vU1ually intact Ihroo,h sW:sequen1 rodfllcal ions of lhe PfO" ision. s~~ 23 U.S c. I S I I ( 1976),. .. hi(h provlde$:

ll>e "n<>me)' General >hall gi.., his advice and oplnioo on qtoc>!;"'" of law when lUIuired by lhe President

'S~~H..tkinv. H~lms. mF.2d I (D.C.Ci •. 1978). holdinglhal"[t )hestalesectm privilege isabsoluICt.1"" iiI.a! 7. b.n pennini"! the diwiet roIIn to UMllIIe a d ••• il>cd affida.it in comero. in ORIe, 10 S8lisii'y ,oolf oI"lhe ,,"hdny of lile ( Ialm of privilege with ~pect K> lhe underlying dasstfitd informalion

Akilough the Supreme COlIn has no! swed upressl~ that the privilege for md,tary. d,plomatic:. and nalionaJ s«urily S«rets is absolute, n has \l$Cd ""y . trong l ... gua8<= to thi. e IToxt. ~e. e.g .. lhe C""n" ' UU"SIWn in U~i'td Slal~J v. NUoIl. 418 US. 68J. 71 I ( 1974), lhai cven i~ (anrero elUlJl1illlllion d documenls may be inappropnate ..... n a w un is satisfied. "from all the (Irev""""""" of lhe (Me . '" thai tlrere (.<[$1$ a lUsonablc dansc. of di. dosure of mi litary. diplomalic. or national .<ecwity sec",ts·

As to the aRM of Alt . II dUla IlIlvolvinl!. military or diplomatic 0\fC"R1S,1 the rourtS have tnId,lio.wly , hown the utmoU def"",...-e to Pre.idential m<pon.ibil itie< In C. '" S. ,-I" LiM' v. \+lIle,,,,,,,, S. S. Corp. . J3J U.S '03, 1.1 ( 1943) !(cmphasi. ar.Id<d)) . deaI,ng with I"n:.ide .. ial authority invol.i ng foretgn policy consoderalOOfIs. lhe Coort ""d:

'1lre Pwsidcnt. both as Commonde .. in-Cbid and •• the Nation'o org ... for fortign affaino. ha& avaI lable illlelJigcru:c :servi(cs \O!Io$e "'port.< an:: no! and ""&hI not ro be publi$hr;(l to the ...,,1d. 11 """,Id ~ wDiHabie ,hOI COI<rIS. wi'''''''''M reln<J~' In!armalIOf/l . should rrvit'W alld perha# nullify ...... "'" if ,lte MNullW IOU .. on '/(onMtiOll pmpuly Nid 'H"":'

In Unl,ed Slates v. /i.qrwUb. 345 U.S. I [ .10) (l953~ . .. lheCoun said : •• II may br poMible 10 S/Illlfy lbe court. lrom all the d"""",UlnC:es dlhr: <.:ase.llIiIllllen: IS •

,u$ool ble cLmgC1" that compuhlon of the evidena: will npooe military rnaIIC1"S whiCh . III the '""'teSt of national security. $hoWd no! be divu.ged. ""ben thi. i,lhc cu<. lhc _asion for lhe privilqe is .ppropnw, and ,Itt aNiri 3hould NJI j«JfXlrdize 'M S«I<rity "'ldell ,Ire pm'iI~v U m .... m '0 protN' by in.ris''''8 "f'O'O 0 .. .,:r:amiOU1li"" if"" er.'id~lfff ........ 11 by 'M j""8~ alON. I" dl"m~rs.'·

418 U.S . at 710-1 I (anphasill ar.Ided~ Su..t.JO Uniut/ Suuu v. /i.eyMIdJ. 34~ U.S. I (I '1SJ): I" c.::h(I"". !he showing of neccssity [for ...:=css to the documents] ""'im i. mode .. iII~ ...

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CAecutive privilege may be claimed to proleCi law enforcement investigatory files and sensitive deliberative communications between the Office of the President and the Allomey General's Office. as well as staff communications within the two offices which are reflective of the deliberative process. The President customarily reserves exclusively to himself the power to assert the claim of executive privilege against Congress.4 However, the Attorney General, as "head of Ian executive] department which has control over the matter," may, after personal consideration of the matter, invoke the privilege against others in court. United States v. Reynolds. 345 U.S. I, 8 (l953).~

2. The Attorney General may assert a "deliberative process" privilege pursuant to exemption 5 of the Freedom of Information Act, 5 U.S.c. § 552(b)(5), to withhold from the public nonfactual deJiberativ(~ communications; absent a breach of the confidentiality of the privileged cornmunication, the President , or the Attorney General on his behalf, may assert the attorney-client privilege pursuant to exemption 5 of the Freedom of Information Act, 5 U.S.C. § S52(b)(5). Similarly, absent a waiver of the privilege, the Attorney General may assert the common-law privilege for attorney-client communications, which has been codified in Rule 50 I of the Federal Rules of Evidence, and Rule 26 of the Federal Rules of Civil Procedure, to protect from disclosure in litigation certain confidential communications of a legal advisory nature which were prepared for the Office of the President.

3. Finally. this memorandum addresses the traditional "governmental" evidentiary privileges which, although available to the Attorney General, only

how f<lt ,he OO<U"I shoold probe in widy,ng ,(SC lt .hliI.he ooa><iOll (or ,n""ting lhe pn~i"ge is .ppropoi.~ ~ ....... 0$ Hlrong ',""""ing or ne<:n>l1y. lhe cI."" or pri",leg~ ,hoold nut be hghtly attepled. b<u evtn Ihr _$I ('(JtII{1t/liltll1ltCt ... ,ry c<llllWf owrromt IN cla;m if pri.·jJtgr if Iitt ('(I/j"

is "iii_ely sllli~d IItm m,llIary "~"" "" at "akt. 345 U.S . a1 II (FOOIOIQIO omilled) (ccnpha>i. oddcd~ Sn 8~n~r<ilJy 0"'''01 . A ... i'tant An<>mC)' Oeneral . Civil Dl"'sioo ... MetOOralldum 10 AU Civil DivisIOn Anomey .... · A'lening Clal ms orOfficial ~rnlflC'm.aI Pnv,lege in litigatoon" (Nov. 1980); Rehnqui ... A"OSI .... AQ<>me)' Genenli. Of~ce or !.<-gal COO""''' ··T .. umony on Em:"n...., Privikp; beF"", lh~ Scnate Judiciary Subcommince on Scpom;"" or ",-,," (Aug 4. 1971). CJ AmmCtJtlCtviJUbt"ir.Uni""v. 8"""". 619f.2d 1170(7thCi •. 1980)(rn batK"~ andHaWnv. Ht/IftJ. "'P'Il. both COfOStruitlg Rt)·N>lb. "'p' a. one! NixOlO. Slip"'. 10 permIt In CtJ"',ra cum,,,,,,;.,,,, of documenl. Fu. whlCh.he Sl.Ue

..... "' .. privilege was claimed In ccrtIin ex~epuo",,1 ~1"'''mstanC: ... A"'tl1can Civil L,btni., Unit",. "'Pra . ... Id 1haI a liIOBan!"' strung showln. or neN. e.g •• !hal wilhheld dQcumeru »ele criucallO substar"' .... cI.im of COOW,'UllOnal vil)ll1lOn. moy cnmpel11>o eli<lric1 coon to rOllelll<! ,It ClI"'rm ~i .... or documcnl$ allegedly covered by I'al. """rell pnvllege in 00'd0r 10 <I<.enn,,,,, w ... the. they _ propttly clanified

• Th .. limiU!1OIl on ,he ell.",ise or ,he pri~ilege aJ/lil\Sl Congress SIems. from a pl3CI~ 1.l lmned by Ptesidents KftlnedyaM lDh...oo. thaI •. E.t,..,.""" priVIlege ran be invoked only by d~ l'fMiden. aM ... ,11 IlOl be "",d w;lhouI ,~,~c Pte$od<:mia! appl"01lal:' lone. From Pr.;"dem Kenne<ly \0 CongteM""'" Mo" (Mal 7. 1%2). a .... (ormaJiud in Pres!deflt Nuon~ " Mcmonndum for !he ,lead>; ofE.\«U!,v. fkpvTmtIll$ and Ageflctes" (Mar. 24. 19691 To dOle. wb<f:quenl adm,nostration. have followed .hi, prar.iC<' . .'IH OlsOll. A«;"an' Anomey Gent .. l . Officc or up Counsel. "Memorand~m to , ... Anomey Oe ....... fC: t=...ccu.li"" Priv,lege" (Ocl 9. 1981); Hannon. A"'SIan! Allorrot)' Gen~raI. Oflkc or legal Coo"",l •.. Memorandum .1) ~' II Heads of Officc$. DivlSiollS. aurelIUs and Boards or .... Depanmt1l' of Jusu e<: " (May 23. 1977). Su grtotrollyC"""""" C,,"sr v. NRC. 67. F:2d 921 • 935 (D.C. c" 1982) (dicrum 10 lhe erf"'" that only lhe PreSIdent may a...,,' "'''''uUvt privilege).

, Although ass<'nion of"'e stal~ ""'retli privIlege clearly reqUIres lhal the claim be made by Ihe head or an agency. 11>0 case 1_ ,,,,,,,,,,ing ",he. cI~lms of e.«<Uli~ pri~il~ge in hl;gallon i. nU KIlled WOlh 1e'l'«'IO who ""' .. a.<e .. .... pn~I"ge . C~ UIIi"" 0,' v MI}r/OIf. S6 FR.O 6>13 (C .D. Cal 1972);F1(' v. S"""""",. 54 FR.D. 364 (W.D. 1010 1972); (oecognizing cl.tnlS made by per"SOlISothtf ,han agency heach). ",uhM,d,rm Prodw:t. v. OAF Carp. 64 F:R.D. 550(N.D. O. 1974);C",,~, v Ca,I"",. S6F.R D. 9(D. D.C. 1972) SualsoD",,,el . ··"',..nIBg Claims of Official Go ....... ""'n ..... I'riv'ltge '" lingalion." supra nole J (n,rommending lhal ,,/I daimsol g""" .... rrc.nal pnvil(ge in lillgallon . o(henhan IhOise rellling lo.he infoonanfs pn ... llege. be formally ass';,r1~dby!he .... 'ls of ~ncies).

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rarely would be applicable to his communications with the President. These privileges. which have analogues in the Freedom of Information Act, protect (a) confidential information whic h cenain employees or members of the public are required to report o n government records, (b) the identity of government informants , and (c) certain law enforcement investigatory files .6

I. Executive Pri\'ilege

The doctrine of executive privilege defines the constitutional authority of the Executive Branch to protect documents or info rmation in its possession from public disclosure and from the compulsory process of the Legislative and Judicial Branches . See Rehnquist , Assistant Al10mey GcnenJl, Office of Legal Counsel , Testimony on Executive Privilege Before Sellate Judiciary Subcommittee on Separation of Powers (Aug. 4, 1970 . Executive privilege protects materiallhe disclosure of which would significalllly impair the cOllduct of foreign relations, the national security, o r the performance of the Executive's lawful duties. 7 It also shields confidential deliberative communications which have been generated within the Executive Branch from compulsory disclosure, in Ihe absence of a strong showing of need by the branch seeking disclosure Ihat acce.<;s 10 the privileged communications is critical 10 the responsible fulfillment of its co nsti tutional functions. Nixon v. Administrator oj General Services, 433 U.S. 425, 441- 55 (1977); United Stales v. Nixon. 418 U.S . 683, 111- 12 (1974); Senate Select Committee on Presidential Campaign Activities v. Nixon . 498 F.2d 725, 130-31 (D.C. C iT. 1974) (en banc). This privilege is based on the need for confidentiality of communicatio ns among high-level government officials. as well as tne constitutional doctrine of separation of powers, whicn provides tnat each branch of government is "suprem[ eJ ... witnin its own assigned area of constitulional duties." United States v. Nixon . supra at 705 .

A. ConstilU/ional and Practical Bases if the Privilege

The necessity for confidential ity in lhe advi sory relationships belwccn Cabinet advisers and the Presidem. and their respective aides. is of both constitutional and practical significance. See United States v. Nixon, supra; SenOie Select Committee on Presidential Campaign Activities v. Nixon. supra . See also Opinion of the Auomey General for the President, "Assertion of Executive Privilege in Response 10 a Congressional Subpoena," 43 Op. Atl'y Gen. __ , 5 Op. O.L.c. 27 (Oct. 13, 1981) (hereafter 198 . Attorney General Opinion); Harmon, Assislant Auorney General, Office of Legal Counsel, "Memorandum for the

• Su Dan.: l. ' 'A<Sef1101 CI. ims ofOffk ,aI G<>~mmenl. t Pnvii(lC In lIugallon." supra !\Ole 3. Su olw f 0 11l el<Cmpl Km 6 . ... h,ch protects '"J>OIWIIncl aJd med,cal 61 ... an.d similar files ohe disclosu",of whICh _Id OOftS",ut¢ a cl¢arly unwarranted ,nv.tS;on of pmoJ);l1 pnvacy." § ~S 2(b)(6); ami ~.<emptll)n 7. whICh shields ec rtain la'" cnforcemen, in~~lIgatOI)' ~rds. § ~52(b)( 7 ) .

1 Bee .... sc t~e t~P'" of oon,,"unicalg di~c u~d in thi~ """""",ndu", ..... I. $! ""ely tl) ,mpllcate millwy. diplomatic. or 1\31 ' 01\111 ,<,rurily intc ... sts . lhc qual Hle.! prh ilege for la", cn fOl«menl ~I¢s . ~ n 33 on/ro. and for (le n<ilive advi""1' or d .. iberal' .... OOml'lOOiCllliollS. provi<ks a more appropnale ffOCO~ for (\\Ir analYSIS.

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Attorney General re: The Constitutional Privilege for Executive Branch Deliberations: The Dispute with a House Subcommittee over Documents Concerning Gasoline Conservation Fce" (Jan . 18 , 1981 ) (hereafter Harmon Memorandum) ; Rehnquist Testimony. supra,s It is premised on the need to discuss confidential matters which ari se within the Executive Branch and to assi st the President in the discharge of his constitutional powers and dUlies , by ensuring discussion that is free-Howing and frank, unencumbered by fear of disclosure or intrusion by the public or the other branches of government . The Pn~sidenl and Ihose who assist him require candid advice on the wide rangc of issues which confront the Executive, and such candid advice may not be forthcoming if Cabinet advisers or their aides must anticipate disclosure of the advice rendered by them and the potential public or legisl ative critic ism which might result therefrom .

A unanimous9 Supreme Court in Uniled States v., Nixon. supra, affirmed the constitutional underpinnings of the privilege . recognizing the "protection of communications between high Government officials and those who advise and assist them in the performance of their manifold dUlies" as supported by the doctrine of separation of powers, and by historic practice. 10 The Court described this constitutional and historic basis as " too plain 10 require further discussion." Id. al 705. See also Senate Select Committee, supra . The Court went on to state that "human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the delriment of the decisionmaking process ." Uniled Slates v. Nixon . supra at 705. Such "temper{ed] candor" in presidential advisers' deliberations clearly wou ld impede the Presidem's performance of his constitutional duty to exercise the executive powers described in An. II, § 3 of the Constitution. See Nixon v. AdministralOrqGen,f!rai Services, supra; United States v. Nixon. supra.

The Supreme Coun and lower federal courts have made clear that the presumption of confidentiality accorded presidential communications is intended to protect not only the substance of scnsitive communications betwecn the President

• Su 8"'~r~11y R. ntin . A .. " I . ... "'1Iomey (Jene",l. Office " Legal Cn .. n,eI. ·· Memorandum for I"" A1Iomoy (Je neral ~. Secrecy "C~b,nel Proceedings ond ""1"'", .• at 3 (0<1 15. 1954)·

mile special ond ""mars mosI s,gmficanl aspt:C1 of [Cabonel rro!mbc.s· ] office" Ihal 0( Ilmled adv,,,,,r to Ihe Choef e . """uve ,n \he . rr.,.s or lhe N.,,,,n .• rel a"oosh,p which c.nnal long be ma,"'amed w'lh ~.pcct 10 tit<»< feeh ng Ihe""" l .... alhben y 10 ntake unaulhorized d,,,,lo ,,, ... of informOlion 'mpaned 10 .hem at Cabi noel mH'lmgs ,n stricI contidence. and ao:cord ,ngly, , . eadl member. 10 ~I. ' n Ihec()Ot fiMftCC oflhc Pt..<i .... nl . mu<l ro' l<!ruttly bear ,n mInd lbeoverriding need [Of ",,,,,,,,Iou. o bs< .. ~ rt(e or tlte """=y or Cab,,,,,, ~e<l, ngs and pal"''''

• Jus"cc Rchnqul!1 d id fI(J\ parl,crpale ,n Ih lS deC"H)fI 41~ U.s. at 6:35 ,oTIt¢ Coo n n<te<l ,hAI l'" 1787 Const,ru" onal Con""nl;on had bH"n rortdu",.d hy lhe Fnamen. ,n com plele

poi """)'. and Ihatlhe record. of If,. Convent;"n ""'~ scaled for more Ilran )() y<cMl Ih<:n:~flcr. ~ 18 U S a1703 . n 15 Su I M filmIrtd. Tbe RecordsOf TIt¢ Fcderal Conventton of 1787 . pp. ~1·· ~~v( 1 9 1 1 ),J Sial. ~75, 15lhCong . lsI Se .. . R .... 8( 18 18), See also C 'Morren . Tbe Mak,ng Of The Consl;l l11;,," 134-39 (1937)

Tbe need for ~un"<kn".1 o,Icl, bo;rabOlts is 001 IIn "l"" I" doe E>.c:cu, ;ve Br..nch The F r.U"(:TS =ugn"cd Ih .. "'''''' ~ongress'OIta l del iberalions """,10.1 <If roeccss'ly be privileged from ""blkatton . Ari . l. t 5, d J, or from quesuon · ,ng beyond .... House or Senate 1Ioor. An . I. f 6. d I . Sim,larly. J"",. ,al d.hbet.~on<. as wdl •• d;",," s,"on. toel,""" n J""8« ...... Iheir I.w de.h. are u ndoob~dly pri v,kged. ahttoup ne,lher .he Ex« ulive t'tCIr the: Leg" " ' ;"" S" .. ""hes Itas e_er al1en,plcd lochall.nge \he npl of couns 10 wl1hhold , ·ueh infOfTnallon. Su g(tl~'al/yNu:(Jt! _.

S,·" ra. 487 " 2d 700. 717 (D C Cir. 1973) (~~ i>om:-) :So"clr Y, David. 448 F 2d 1067. 1080-81 (D C Cir 1971) (WIlley. 1 . coroeumngl. lIenk 'n. ··The R'ghl ' 0 Know .nd 1h< Du.y 10 Wl1hhokl . The Cas.: of the !'o:ntag"" f'apcT$". IW U. flo L. Rev 271. 274 (1 971)

485


and his advisers but the integrity of the decisionmaking process within the Executive Branch as well. II See Nixon v. Administrator if Generol Services, supra ; SenateSe/eet Committee, supra; Nixon v. Siriea, 487 F.2d 700 (D.C . Cir. 1973 ) (en bane). See also 1981 Attorney General Opinion supra; Hannon Memorandum , supra. It is these concerns which justiFy the invocation of executive privilege by the President, or, where appropriate. the heads of executive departments. as well as the " deliberative process" privilege. which may be claimed by any Federal agency pursuant to exemption :; of the Freedom of Information Act. 5 U.S.C. § 552(b)(:;). to withhold documents requested by members of the public. ll

8. Limitations on the Scope if the Privilege

Notwithstanding the necessity for confidentiality in executive deliberations. the privilege against their disclosure to Congress and the courts is qualified, in both scope and application. First . the executive privilege for imragovemmental deliberations does not protect materials the disclosure of which would not implicate or hinder the Executive Branch's decisionmaking processes. United States v. Nixon , supra . Thus. factual. nonsensitive materials--communicatiOIiS from the Attorney General which do not contain advice. recommendations, tentative legal judgments, drafts of documems , or other material reflecting deliberative or policymaking processes---do not fall within the scope of materials for which eXecUlive privilege may be claimed as a basis of nondisclosure. Ct, e.g., NLRB v. Sears. Roebuck & Co" 421 U.S. 132 (1975); Taxation With Representation v. IRS. 646 F.2d 666 (D.C. Cir. 1981); Coastal States Gas Corp. v. Department q Energy. 617 F.2d 854. 866--69 (D .C. Cir. 1980).1)

Second. even in cases involving sensitive deliberative materials for which a claim of privilege may be appropriate. the executive interest in nondisclosure must be balanced againslthe needs ofthe requesting branch before the validity of the claim of privilege can be determined. It is in these cases of potential conflict and competing claims of legitimate need by each branch that the separation of

" In us analysi . .. e~cutive privilege in U";lI'd SIll'~1 v. N/.ron. 4upm. !he Supreme Court discmsM the role .. con ftd .... ti ... lity amon! presidential odVJ$(:"....:I conc luded ,

The o;pee .... ion or a Presidenl toille oonfidtntiality .. his ron~ions and «>m::;p;mdcn<.:e i. [grounded on ] the necessity for prorection .. the poiblic inlerN in candid. object; .... and even blunt or lursh opinions in I'ro$idcnnal d«;'oonmali:ing. A Prt$;.x nt and ,,- ... 110 ",SISI him mus t be free 10 o;plore altemati\fl in lile proceu .. s~ping p:.>lictes and malnng dectsiom and 1000 10 in a way many would be un ... ;ni", roo;rn" e>.cep1 privately. Th~ _ the con.ideration!; ju,lllyin, a presumpl i"" privtlege for Pn::sldtnUal e<>mmunications. The privilege i< fitndamenlal to !he openolion .. Government and inc.tncably rooted in the separn{1OII d powe" under \he Constitution .

41 8 U S . at 708 (footnote om ,tted~ "'T'h< delobccraliw: procc .. pnvilege w,11 be d iKIWCd ,,.,,... in pan II A . " TIle standard for nondi.eloswe undn" • daim" executive pnvilege lSanalog"'" to the "del iixtative pmce ....

privileg .. codi""" in the Freedom or IAfonna{ion Act . 5 U .S .C . t 552(b}(51. .. hoch eRmplS prNo:c1Sional and dc:hberat,,,,, documents lrom the geMraldl$Closure mandate of the Act. Su g~M"UIy McCldt.lIId v .hdrU4. 606 F.ld 1278. 12l:11 n.~4 (D C . Cir. 1979) HO'I'Ie"\IeT. Congrels may nolel pan<.! thepubl k'5SWUtoryright lodisdolure under FOrA beyond lhme Iomits .. t. in lily g_n CI.e, by Ihe ronsuhlI ionoi doclriM of e~ecu"ve privilege . SOJId~ v. Duvid. 448 F.2d 1067. 107 I-n, n II. 1081- 83 (D.C Cir. 1971 );converxly. t>e<:MlIC or ol5«>nStttuuonal basi. independe nt of FOIA, Congress may IlOl limil !he .scope of = !ive pnv;lege by al~ring the standards for di.do ... re under FOIA . ld.

486


powers principle on occasion must yield to the principles of "a workable govemmenf'- "separateness but interdependence. autonomy but reciprocity." United States v. Nixon, supra at 707 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson. J. . concurring». These principles recognize a "spirit of dynamic compromise" among the coordinate branches when a conflict in aUlhority arises---a spirit which requires each branch to " take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in a particular fact situation." United States v. AT&T. 567 F.2d 121 . 127 (D.C. Cir. 1977). This duty to recognize and accommodate the legitimate needs of the other branches was examined in its constitutional context by the D.C. Circuit in United States v. AT&T, id. at 130 (footnote omilled): .

[l"lt was a deliberate feature of the constitutional scheme to leave the allocation of poo.vers unclear in certain situations ... (Thus,1 the resolution of conflict between the coordinate branches in these situations must be regarded as an opponunity for a constructive modus vivendi , which positively promotes the functioning of our system. The Constitution contemplates such accommodation. Negotiation between the two branches should thus be viewed as a dynamic process affirmatively furthering the constitutional scheme.

See also 1981 Attorney General Opinion , supra. 5 Op. Q.L.C. at 30 ("The accommodation required is not simply an exchange of concessions or a test of political strength . It is an obligation of each branch to make a principled. effort to acknowledge, and if possible to meet, the legitimate needs of the other branch.").

The more generalized the executive interest in withholding the disputed infonnation , the more likely it is that the claim of privilege will yield to a specific, articulated need related to the effective perfonnance by the coordinate branches of their constitutionally assigncd functions. Conyersely, the more specific the need for confidentiality, and the less specific the aniculated need of the requesting branch for the infonnation, the more Iikcly it is that the Executive's nced forconfidcntiality will prevail. Nixon v. Administrator of General Suvices, supra; United States v. Nixon, supra. See generally 1981 Attorney General Opinion. supra; Harmon Memorandum , supra . Thus, in determining whether to assert the privilege, the Executive , in the fi rst instance. must balance the " public" interest" inherent in the "general privilege of confidentiality of Presidential communications in perfonnance of the President's responsibilities" against the national or public interest in disclosure, as determined by the ability

"n... "publ i~" in"'rr:sIln l>OIIdilll:~ .. ~dtri_ from the ftt()gniU<.i val~ wh,ch aocR.lts In !he public from an erredive e.>e<1l1've docisionmaling process . supported by ohc QI."" .... ge d .. ~andod. obJe<uve. and even blunt or hatsll opin,ons. ·· U,mw Slmes~. NUQII. supra aI 708. and f05leTed by c ..... ring ~ oonlidenliahly ofsucto opinions. NuOfI ~. SincIJ. s"PTIJ .01717 Set also McClc/faNh. And,lts. 6Ol't F.2d 1278. 1287 n.SS (D.C Cir 1979)(c llati""s omincd ) U-ecognizing Ihc "compelling publ;~ t,"","" int ronfide""alil y" wh,~h 0$ "[njowherc more v,oaIly in""lved dian in tile lidelity d!he sove~ign ~ dec,si ... " and p<lhcymak,ng faO""'CS ' "1 Set genually Rf:hnquisl Tes, imony. s"I"a

487


of the requesting branch respons ibl y to fulfill its coostitutional duties without the assistance provided by the requested documents. United Stares v. Nixon. supra, 418 U. S. at 706, 7 11-7 12. See Nixon v. Sirica. supra. 487 F. 2d at 7 16-17. In making such a determination, each document-and the rolc that it plays in the decision milking process-must be examined individually. Playboy Enterprises v. Department if Justice , 677 F. 2d 93 1, 935 (D.C. Cir. 1982); Coastal States, supra, 617 F.2d at 867 .

In the case of Congress, me grant of legislative power in Article I of the Constitution implies a requirement that Congress have access to pertinem information, as well as the authority to su mmon witnesses and to compel the production of needed evidence, as a prerequisite to the proper performance of its legislative function . Jurney v. MacCrack.en. 294 U.S. 125 (1935); McGrain v. Daugherty, 273 U.S. 135 (1 927). See generally Rehnquist 'testimony, supra. Congress' duty to investigate and inform itself of matters which may involve thc Executive is very broad , extending " over the whole !"'.lnge of/he national inlerests concerning wh ich Congress might legislatc or decidc upon due investigation not to legislate ." Barenblatl v. United Stales . 360 U.S. 109, 111 (1959). See also Eastland v. United States Servicemen's Fund, 421 U.S . 491 , 504-07 (1975); Watkins v. United States, 354 U.S. 178, 187 (1957). See generally Cox, "Executive Privilege ," 122 U. fa . L. Rcv. 1383, 1426 (1974). Th is broad-based power of inquiry includes maUers requiring new or remedial 1egislation, appropriations of funds, congressional probes into various governmental departments to expose corruption. ineffi cicncy. or waste . as welt as the adm inistration of existing laws or proposed statutes. Yet , these ve ry sources of Congress' power to obtain information also outline the limits of that power: Congress may only inquire into those mailers on which it may potentially legislate or appropriate-it may not inquire into those matters " which are within the exclusive province" of the Executive or thc Judiciary. Barenblatt. supra at 11 2. See Watkins. supra . Nevertheless. the validit y of a c laim of pri vilege for documents demanded by Congress in the performance of its legitimatc legislating functions, including the " oversight" function, can on ly be determined by balanc ing the part icular interests of lhe Legislative and Executive Branches against each other in each case. in light of the possibility of accommodation. Senate Select Committee. supra."

"su. ~ g .• 1981 Aft"'"'''")' Genen l Op,nion. WpM. d,o;cuss!Og .he ,..,131 ,,,,,ly ..... k cong.-es.oon.1 ,n,cresl'lI obloinmg predeClSlonal. dclobcral i"" E.>.«u""" Or. ncb docurnelllS on.he conlex' 01' Congrt .. • performance 01' ilS gencra l "",cfS'Sh, " function. as com~red ,0 ilS consldcratton 01' specific leglsl;u",,, propo",l.

A, Ihe Slage of OVffSighl . 11>0 COIIVt"s<oonai ,nleoe.<I IS 8 g<neralOledone of en.unng ,Ila! {he I ..... arc ..-t Il 8 .... fa"hfully ... ""u.ed ord of proposi", rtmed i. l lc! isl"'ioo if,hey art not. 'fhe i~romwlO~ ll'JqI'es{ed is usually broad on $Copt" and ,he rc"",AS for ,he "'<It>e!I COl"rcspoOOingl y general aflll vag,... In coo{ras'. "'hen Congl"l'S< ,s uam,n,ng ' pttifk provo", l, for l~g"lanon . {he ,n formali"" wtllch CongreM needs 10 enable lI,<> legisl .. ~ effectl'd y is u>u.Jly qU;le narrow in ><"<>p" '00 Ihe reasons for obulm", ,hal infMl\lllton c OlTCspo .... ingly spec lnc. A sped~~. anicu l .. ed IIted rOl informal;"" "",I I ..... igh suM.an". lIy rno"" he.vily on {he ronslO.unoo.1 bal.nc,ng .han • generalozed ,nlerc.1 ;n <>blalning ,nform .. ""

tM Ort"Over. l lhe coogrtssloll>f o""'igh' In,em;! w,1l suppon a <Xm.:Ind for p~lona l. dcl,bc ,... ali"" docurnenlS in the posse,."",,,, It.. Exeomi"" B,.nch only illlhe mO<l " nusual c;",umSl'~ II i. ' rnpon .... lo .. ress lha. con""""",,,' ovel'$,gh. '" E."",,{;"C B ... "ch ,...""'. is j ... ,,/iablc Ofl l~ a. a meanJ 01' f,.. il illlllng .he Icgillall"C ,ask 01' e ..... ung. amcflllong. or "'PCaling taws Whe n web """"" 'gm" .. u~ a<' m~8R'l" panicipa, ing dl=1ly in 3n ongoing process" dc<"islonmak ' l\jl

C",",nU<d

488'


Similarly. with respect to judicial functions. an evaluation must be made ofthc impact of a successful claim of executive privilege on the ability of the Judiciary to perfonn effecti vely its duties of fair adjudication of controversies and supervision of grand jury investigations . See United States v. Nixon. supra; Nixon v. Sirica. supra. As is the case when the privilege is asst:rted against the Legislative Branch. if the infonnation withheld by the Executive is " demonstrably critical to the responsible fulfillment " of the Jud iciary 's functions . a generalized claim of privilege must fail. Nixon v. Sirica. 487 F.2d at717 ("the general confidentiality privilege must recede before the grand jury's showing, . thot the subpoenaed [infonnation] contai nl s [ evidence peculiarly necessary to the carrying out of [itsl vital function."). Cf Senate Select Committee. 498 F.2d aI 731.

Notwithstanding these limitations on the scope of the pri vilege for Ellecutive Branch communicat ions , it is not essential that the communications for which the privilege is elaimed have been directed to or emanated from the President himself. See Nixon. "Memorandum for the Heads of Ellecutive Departments and Agencies" (M arch 24 , 1969). See also United States v. AT&T. supra: Hannon Memor.mdum, supra. The underlying rat ionale of the privilege to foster robust and honest debate in the presidential decisionmaking process is as applicable to Executive Branch advisers both within and outside the immediate Office of the President as it is to the President himself. The Supreme Court, in United Slatesv. Nixon. supra, recognized the need for the President "and those who assist him Ito J be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.·' 418 U.S. 708 (emphasis supplied). In addi 'tion, this office has recently expressed the view that because of the importance o f the executive department heads and their advisers to the President and his closest advisers in presidential decisionmaking. it would be "artificial" to draw a rigid and inAexible line between the executive departments and the President's Office, limiting the reach of the const itutional privilege only to the latter, Harmon Memorandum, supra at 13_ 14. 16 Thus , memoranda prepared by the Attorney General or his assistants containing legal o r policy advice on issues under consideration by the President and his advisen. may be properly encompassed by a clai m of executive privilege . This category of documents would include , for example, staff level advice to Assistant Attorneys General concerning mailers on which the President has

"' ith'n the E." ,cutive Brnnch. It '''''''Ie(l< lhe boullll. of the pn>per IfllillatiV1! funct"'" RcsuiCled 10 i1.'l proper sphe"" 1"" oonS", .. "",ol "",enlghl fU""lOon ~.n aimosl al lll ay< he prope.ly rondOKled with ",fe",r>Ce 10 Infonnat lon ronccm,ng d ... im .... wh,m lhe ""eclll" ·,, Branch ha •• I",oily reached Con8"'SS WIll loa.,..,. legltlmale need 10 koow lhc pmi mlnary posl1".>IIS laken by ""eclJlI"" Drn..rn offiCIals dunnll Intemal del,bernl lons only in the "'''''' of clrcumslance<.

5 Op 0 L.C at 29 (CII.l"",. omllled) ,. Nevo:nheless. fonn.r Asslstam Atl0meyGenera i Hannon 's January 13. 1981 . mell"lOrnnoom recognoud thM

1~ e.i .. ··mrrerenc.~ of deg",.·· <of senS'lIvny in"'",nt In the brood calegory of . """.Uvo: de hbtrnlions. The memo,.,.ndum "",nled 0<11111:01 ,n dec,dlng whe1h •• to cla,m 1'" pr,vllege . ,I is esp« .. Uy ,mporlllnl to prottct 1he Inlesnly of dehbernlions in >'olvmg the I'ns"lem hImself and hIS d ose S! adv,se".

In accommodating Congnoss·s I.gil,m. ,. need for <eoain Informallon. lhee,,,·c .. u,;e \tnn~ h .Itou ld be IuS! will!ng ", ",ve.1 delobt"'''''''' d,rcclly ,"""Ivins Ihe Pre" dem and hIS do~ pdvi ...... nd more WIlling 11, disclose matena l flOm ",,,h,n ~ etecIIIIWc depao"",nts.

H."""" Memorandu m. supra. a1 13

489


sought advice, staff level advice to officials in the Office of the President, notes of middle level staff meetings concerning issues before the President or members of his staff, and tentative legal judgments or draft policy statements prepared for the President or his staff.

For purposes of invoking executive privilege, communications from the Attomey General, qUeJ the President's chief legal adviser, should be analyzed in the same fashion as communications from other Cabinet advisers and trusted highlevel offic ials. Unlike the attorney-client privilege, which focuses exclusively on communications of a legal advisory nature, executive privilege may be claimed for any nonfactual, sens itive deliberative communication for which there exists a sufficiently strong public interest in nondisclosure . While it is unlikely that very many of the Attorney General's communications will be in the category of communications with regard to which claims of privilege are entitled to the strictest deference, e.g., military, diplomatic. or sensi tive national security matters, his communications to the President may nevertheless demand greater confidentiality than those of some other Cabinet advisers, because of the nature of the Attorney General's responsibilities to the E~:ecutive and his special areas of expertise, e.g ., legal advice and law enforcement. See Hannon Memorandum, supra, at 26. 17

H . The Frftdom of finformmdfion Ad-ExemptDon S: The IDeliberative Process I?rivilege aoud the Attom.ey-Cllcnl Privilege

Exempion 5 of the Freedom of lnfonnation Act (FOIA)" protects from compulsory disclosure to the public, government materials which are "interagency or intra-agency memorandums or leiters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.c. § 552(b)(5). This exemption thus codifies the traditional common law privileges afforded certain documents in the context of civil litigation and discovery, see Fed. R. Civ. P. 26; Fed . R. Evid. SOl, including the executive "deliberative

" tn his rnemornr>dIJm 10 the AnonlC)' General ~gard,ng ~ conll~aI5ubconun,nee~ demand fOl' ,ella,n docurnen ... from the DepanmeflI 01 Eoer&;" Ass1SLam Attorney Gcnen! Harmon adv,sed:

rIlo 'll'OOlever « Ienl the cwtomU)' 1II1000000000·<:!'enl ""v>le8" ~pplic:s 10 govemmc:1II Ulorneys. we believe dul the muon. for tile ronsurulio.w pri.ile~ againSl.liIe romp:lbl disdosu~ <Jf executive bnlnch ""I,he"",on. h"" •• """i.\l fOtC<! when 1e,a1 adv,ce IS Involved None of !he President', obli gations's lOOn: solemn "'all bis duty 10 obey the law. lbc: Coost,tul,on ,15e1f pIac .. tIIi' ~sponsob'I'ly on him. in hosoath of oflkc and in tile requiremo'lII of ankle II, scction 3 !hal "he shall takec,,", \hallhe laws he r.'tltfullye<ecuted " Because thIS oblipllOO IS imp>Std by the Coosc,1Ution Itself. COIlgn:5S cannot law fully mderm~ the Pre,ident's ~ b" ily 10 carry II oul. Morco .. ,. legal maners ~ hlo:ely Ul be am"", those on ",hit;h high gowmme'" oflkial. most need. and should be el\CQunoged to seek. obJCCI'''' "'P'" advice. As aucialas fran~ deb<ote on policy matIC ... , •. II IS e .. n m.:n ""po"""l tIIat 1e,. lady~c be "candid, obJe<:ti .. , and.ven bl unl o. har>h,'· .u Uni,td Sll".~ v. Nim«. 4 18 U.S . 683, 7()8 ( 1914~ 'll'h"", necessary. Any other aPf'rtl'lCh 'II'OUIdjeOpaldiu notJust partit;ular pol", .... and programs bullhe principle thaI the govern .... nt muslobey lite low_ R>I these reasons, 01 ,s crit icalthar the Presidenl and bis advisers be lIble to ....,t. ~nd ".." candid 10,11 adv"'" and "",n1011S f..., or .... fear 01 compelled disclosUl'(:

Hannon Memorandum. ~"Pr ... 1M 26 " While O!her e.umpc'OIIuo the fOlA ~asiooally may he appliClble 10 lhe lyP" of comn .. nicat1om doseu>sed

in th,. memorwt<ium. ~ 8 .. the u(mpl1Oll 7 priviloge for law enforcemen t investiptory ~. JU ~ U.s,c, § 552{b)(7)discu .... d in pan III C o. ;,ym. bee""", of the Allomc:yG.ne ..... odv'sory ,datoonm'ptolhe President. fIlO>t sucb comm~ni"IiOfls won come- ... ,thon \h( prlv ,le, •• embrat:ed by «eml'lioo S.

490


process" privilege, NLRB v. Sears. supra; EPA v. Mink, 410 U.S. 73 (1973); Taxation With Representation v.IRS. 646 F.2d 666 (D.C. Cir. 1981); theanorneyclient privilege, Brinton v. DepartmentqSlOte. 636 F,2d600 . 603-04 (D.C. Cir. 1980), cert. denied, 452 U.S. 905 (1981): Mead Data Central v. United Statu Department if Air Force. 566 F,2d 242, 252-55 (D.C. Cir. 1977); and the attomey work-product privilege, NLRB v. Sears, Roebuck & Co. , 421 U.S . 132, 154 (1975); Bristol-Myers Co. v. FTC, 598 F2d 18 (D.C. Cir. 1978), as applied to document requests of government agencies from members of the public . See also Coastal States Gas Corp. v. Department of Energy. 61 1 F.2d 854 (D .C. Cir. 1980). All or these privileges encompassed by exemption 5 may be claimed, in appropriate circumstances, to protect communications between the Atlorney General's Office and the Office of the President from compulsory disclosure 10

members of the press and the general public . 19 Nevertheless, even though the FOIA exemptions noted above are analogous to the common law evidentiary privileges which have been incorporated by implication into the Act, the standards for asserting the evidentiary privileges can serve only as a "rough guide" to the courts in determining the validity of FOIA exemption claims. This is so bec3Jse

decisions as to discovery are usually based on a balancing of the relative need of the parties, and standards vary according to the kind of litigation involved . Furthennore , the most fundamental discovery and evidentiary principle, relevance to the issues being litigated. plays no part in FOIA cases .

Coastal Stales. supra, at 862, c iting EPA v. Mink . 410 U.S. 73 , 86(1973). See also Playboy Enterprises v. Department of Justice. 677 F.2d 93 1,936 (D.C. Cir. 1982): McClelland v. Andrus. 606 F2d 1278. 1287 nn. 54. 55 (D. C. Cir. 1919). 20

A. "Deliberative Process" Privilege

The "deliberative process" privilege under FOIA is substantially similar in scope and purpose to the deliberative process aspect of executive privilege .

'OTht nemplOOOS ronuined ,1\ lilt f~m of Inronn31ioo A~_ do .. ~ Iprovidel /lJUIOIlly _0 withllold onform.wOO'l from Congress." 5 U.S.C . § 552(~)

'"In ",plain'"g the ",13,ionsl"p betwuo lht pnyilctes WIder f01A and _lIt ev rdauwy pnvileges on li"'gauon. the 0 C. CII~lIn s\aled:

ITJhe analysis con\.lined on E>:tmpo.ion 5 coses " appl",able Ito rommon I2w d,sro"tly casesl beau .. EM:mplion 5 ",emplS only Lbo ... documenl'l oonnally privilep:d in ,he civil d iS(ov<:ry romcx_ NUUJ y StilTS. R()<'wci & Co .421 U.S. 132. 1411-49 . ( 1975):EPA v M,M . . . . 4 10 U S. Id 85--86 . . (1973): \.\r"g/on v Rr>UN. 523 F.2da_ 1143( 1975). Thu.,nefrecl E>:empMn 5 ,~co-eJnen.i"" wull the(ommonl . ... discov<:.y pnv'ltses: E~enlpuon S .h,eld. from. member of !he public seelung a OOcumeni under R)IA th •• which would be shielded from a lilig .... seet,ng discovery from aJI ag.....,y. n..", os. howevc •. an add,.oonal r_cobe considered 'n ..... di>COVery com ... duu , $ not C(III.idc:red in .... FOIA conI... Wlren a pany occud,""oycry agar .... Ihe Go:wemmeOl and the Gave""""nl ,merposes a claim oJ pr""lege. OIlS appropnalt for die COUll co COIISodtt the I,.iganl's need for the malena! . aUI wb(:n a memb(:.oflht public seeks ac«$$ 10 m",e"al unck. R)IA and .... G>vemme ... <laim. dJat the maocrial comes wothin lhe po ..... i ..... ofE>.emplOon 5. dlSCloslire IS permil1ed of!hal wttich ...-ould .. roulinel y be disc lostd" in pIi\<8le liugaion . H. R Rep. No 1497. ,9th ConS . 2d St$$. 10 0%6). S'iJud d'ffu~",/y. ,It, ~LU'" if ,ltu~qu~str's fte~ is "'" cafUtd"ut itO ,M FO/A roll' .... '

McCtuhlM y. AM,ILS. sup"'. 1111287. 0.54 (empi\.lS" , upplieof).

491


discussed above. Although boI:h pri vileges apply generally to the same types of documents, the primary di fferences between the two privileges lie in their respective applications. First, executive privilege tradit i'onally has been invoked only by the President to shield documents from disclosure to Congress, and by the President or the head of any executi ve dcpartment or agency in judicial proceedings.!' FOIA exemptions, in contrast , may be claimed by the head , or other designated official, of any government agency in possessio n of documents for which a request has been made by a me mber of the public. Second , as noted above, claims of executive privilege for del iberati ve documents must be balanced against thc public interest in disclosure, which is frequently analyzed in tenns of the requesting govemment institution's ability to perfonn its functions responsibly-whether legi slative investigations or judicial resolution of disputes-without gaining access to the disputed materials. In considering the claims of exemptions under FOIA, however, the requestor's interes t in or need fo r the documents is irrelevant. See H. R. Rep. No. 1497, 89th Cong. , 2d Sess. 10 (1966); McClelland v. Andrus, supra. Notwithstanding thesc differences, the analyses involved in the applications of the two privileges are vcry similar.

As in the case of executive privilege, the "deliberative process" privilege embraced by exemption 5 was inte nded to protect the integrity of the dec isionmaking process and to promote full and frank deliberations during that process. However, consistent with the strong disclosure policy of FOIA, the privilege is to be considered" 'as narrowly as [is ] consistent with efficient Government operation.'" Coastal Stales, supra, 617 F.2d at 868, quoting from S . Rep. No. 813, 89th Cong., 1st Sess. 9 (1 965). See also FBI v. Abramson , 456 U.S. 615 , 629-32 (1982) ; Department if Air Force v. Rose. 425 U.S. 352, 360-62 (1976). The privilege exempts documents which are advisory or recommendatory in nature. reflecting "the give-and-take of the consultative process. ., weighing the pros and cons of agency adoption of o ne viewpoint oranother," Coastal States, supra, 617 F.2d at 866, and "other subjective documents that reflect the personal opinions of the writer prior to the agency 's adopt ion of a policy." Taxation With Representation, supra, 646 F.2d at 677. SeealsoNLRB v. Sears, supra, 421 U.S. at 150; Brinton v. DeparlmenrifStale, supra, 636 F.2dat 604-06. In Ihe words of the D.C. Circuit, which has developed a considerable body of law construing the deliberative process privilege:

[The privilege I was created to protect the deliberalive process of the govcmment , by ensuring that persons in an advisory role would be able to express their opinions freel y to agency dccisionmakers without fear of pUblicity. . Such consultations are an integral part of (an agency's] deliberative process; to conduct this process in public vicw would inhibit frank discussion of policy matters and like ly impair the quality of decisions.

11 s(~ nn. 4. 5. Jupra.

492


Ryan v. Department <f Justice. 617 F.2d 781,789-90 (D.C. Cir. 1980) (footnO(e omitted). In addition. the privilege was designed to

protect against premature disclosure of proposed IXllicies before they have been finally fonnutated or adopted; and to protect against con fu si ng the issues and misleading the public by dissemination of documents suggest ing reasons and rationales for a course of action which ""ere not in fact the ultimate reasons for the agency's action .

Coastal States . supra, 617 F.2d at 866. Applying this standard to the materials discussed in this memorandum .

documents reflecting the internal details involved in the preparation of fonnal Auorney General opinions or Office of Legal Counsel o pinions. as well as the more informal predecisional working papers which pass between and within the Attorney General's Office and the Office of the President, would be included in this category of deliberative documents protected by exemption 5. See. e.g., Brinton v. Department if State. supra (holding that opinions prepared by the Office of the Legal Adviser for the Secretary of State fell within the deliberative process privilege of exemption 5).

The courts have held. however, that "deliberative process" privilege does not protect documents which reflect final opinions, statements of reasons supply ing the bases fordecisions, or policies actually adopted, or documents that otherwise constitute the "working law" of an agency. See NLRB v. Sears . supra . 421 U .S. at 152-53; Taxation With Representation. supra . 646F.2d at 678;Coasto/ States. supra, 617 F.2d at 866-68. The rationale underlying the "final opinion" exception to the deliberative process privilege is to prevent agencies from developing a body of "secret law" veiled by the exemption 5 privilege-the maintenance of which "would weigh heavily against the public inten!st." Sterling Drug, Inc . v. FTC, 450 F.2d 698 , 715 (D.C. Cir. 1971). See Brinton v. Department of State. supra. 636 F,2d at 605 . Thus, decision documents of the Office of the President, deliberative materials "i ncorporated" into those documents, and opinions of the Attorney General which have been "incorporated" into the President's final document, would be subject to di sclosure under FOlA. See EPA v. Mink, 410 U.S . 73 (1973).n

Ii "Filial opinions" of (he Office of ..... 'al CQUnsel or 1M Anorroey Gene", I. which ""'''' wnnen forlhe Prt'.l idenl and form p"" oflhr basi. of .he Prt'Sld" .. •• final 1O<'I,,,n ...... ""'ich have no! bI,en " inro'pooued" ,n'o ,he I'rcsodenfs final decmo" document. woukl be l""'eCled from d"dolu", undn . ,=,,,,,on 5\ pn .... ge for aI(omey-c hen( comnwnicao ions. as "",II as the dehbe"u,~ proceM pnvok,.,. Su 8d1ll0l' v ~p'/ <is/aIr. sIIpra. Mrod Oma C~~"al. 'UP'"

If !he "final opinions" from ,he AU"""')' General', Offi« art nQfof ~ legal adv,w'l' l\a1Ure----<lf art O1hcrw,,;e inelogoble for I claim of al1omcy-cloen' pnv,I.,e----an ana lysIS muSI be OTQd.e ",gard,ng lh. purpose of lIoe opin,on d""""",n" ,n i .. u. If lh. ""inion i •• p!M«"lonal documenl_I ,r, .lhedo<'Un'II'nI p",u ms lhe AuomeyGeneral's v,~ ... son. pallOeular maI'er wh,ch w,1I beC<ln,Hlered by lhe PresKknl ,n wang t,na l e,«un"" lelion.or ,n lIoe cue wilt", final.x ..... u"ve act,on has already been uken bill ,he Anorney Ge""",1 ,;ubmils a documem which "pm.idelsl gu,des f'" decis,ons of "m,l3I or ano logous coses ansong ,n .he fU,u","_ lhe SUp",me COUll hIS '!aled ' hal ,he Ih:u .... m" e><emp,.d from FOI ... ·• doscl",u", mandai. as a dehbcr.uove ~oo:u"",m NLR8. $Mrt. SIIpra. 42 . U.S. a1 152. n. 19. Ir ,he An<>mey General's " fiml "",n i",, " is pos1d ..... ,~I"nal. as are mos1 final 0I""oon.<-i e ..

493


Nor does the privilege extend to documents of a purely factual nature. In the case of documents of a mixed factuaVdcl iberativc nature, factual materials which can reasonably be severed from the deliberative or advisory segments of the document without compromising the confidential remainder of the document must be disclosed . EPA v. Mink . supra. 410 U.S. at 91 . However, "factual segments {of advisory documents] are protected from disclosure as oot being purely factual if the mannerof selecting or presenting those fact s would reveal the deliberate process. or if the facts are • inextricably intenwined' with the policymaking process." Ryan v. Departmem q Jus/ice, supra, 617 F.ld at 790 (footnotes omitted). See Playboy Enterprises v. Department if Jus/ice, supra.1.l

B . Atlorney-Cliem Privilege

Exemption 5 ofFOIA also embraces the common law evidentiary privilege for attorney-cl ient communications. 5 U.S.C. § 552(b)(5); Fed. R. Civ. P. 26; Fed. R. Evid. 501. 1-< See NLRB v. Sears, supra, 421 U.S. al 154;Mead Dota Central, supra. The 3110rney-client privilege protects confidential disclosures of aclient to his or her allomey. which were made in order to obtain legal assistance and not for the purpose of committing a crime or tort. 8 Wigmore. Evidence § 2290-2329

oommun"".loons wIIidl "1000;11 blIck 011 and e~pbinll a ded",,,, already reached or • policy al",ady adoptw"-lhe opinion would,.", be e~mpl (,om FOIA·. d .. dosu", mandate. "nee d .. dosure woo ld pose "a neghg,ble ,;sk 0( de nying 10 agelKy dttlsionmal:e:rs lilt uninh ibi .. ,d advice which .. .., imponanl 10 ~gcncy ~1S,ons ," Id.

In ,I< com!",nion case 10 NUlB v s"',.. 'up"", R~Mgofja"'mBd. v Gf'IIm"", .. ,.,'"'rot' ElIgi .. "ri"lCoq>.. 421 u S 168. 184-85 ( 197:1). lilt Court "" fosth the addillonal con,KIc:rn.,n of ...nc.ht, lilt .. thor" lilt "~ ... I <>pin.,n" possesses IkcislOnal aulhon' y wnh .de:ftncc ",malters addre.sed 10 llIeoplnlon . Thus. If Ihe sUbJ«\" Ihoe Anomer Ge"" ... !"s opinion. 0' othe, Departmc:n' " Justice commu nICation. In""I>'eO ~ maneroYtt whICh lhe Oflice oflhc I're>cilknl hilS lin.J d"d.ionolaulhorily. lIleopinion """ ..... nly i. pKdoci.io""l. and Ih<",f="xempl frt>m dISClosure. even if die "P,nion represents lhe "~oa!"· VIe\II or dispos_ion of thoe Dl'paI1ment of Justice on lhe "",lie,. Of C""~. llIe ~nal act,on ,aken by Ihe: Office of ohc: Pre.<I"".' m.y '''''"'T'''''''''' lhe Anornt)' ~net3 I 's a<!v i"",y o pmlO_n ",hich casc. il """,Id 10M il> pml«l' lOl1.ll charactet ar>d become wbjccI'o disclos .. re Su o/so Bri~'OIl v. VIp·' ((Sta". '''P'a. 6J6F 2d .01 60j (holding ,hat legal optnlOns pftparWby,he Officeol' I~C Legal Advise, (o ,.1Ie S..,re lary ofStatt _"' prope, ly w"h ... ld on lhe gfOllndlbat ' he Leg.1 """i..,..·s opinions were"'" "final "P,oions" as contemplated by Ihe FOIA. in",,,,,,,,h .. . he Le~aI Advise, ··bas 00 authorily 10 make ~na.I ~islons ro~mlng United States pollC)' 1.1 1; lnstead. his Alit IS 10 gi~ adv,ce 10 lhose ,n ,lie State Dt-part ..... nl who do make the policy dtci.ion .... ~

lJ n.. O.c. C,~"i l ,ecently "'JOCled the Dcpartmeno".d.im ofprivilege fosa 302'p8gedocumc:ol prepared by. ,ask fon:e of ,he OOke of Professional Respons lbll" y of lhoe Dl'partrottl1l d Justl<;e ror Ute Attorney General. The do<umenl reponed ,he ftsultsof an e:lgllt·monlh Invtcstil"lIOO Inln lhec lrclllt1<1anCCs,ulTOOnding lhe infi luatioo of an FBI infonnatll. in,., {he Ku Kill . KI .. PluybuyEn~'I"'SUY. Vep'tqJMS'"'' ,_a. 677 f.2d93J Agalo", 1Ile: Depan ..... nfs cla ,m that {he enl ire repol1 '·", " « 11001 {ile 'choice. ~ighing and analysIS of facts' by lIIe task fon:e and t ...... \ Ihere'''''' pmt",~d.s . part "tile dtlibe .... i\IC process." 677 f .2d at 935. th~COlIrt of a"""alsheld {hat the report wuc. f", Ihe mo" part. oot .... mpl from di.do. ure. and ftm~ndod 10 Ihe d i,,",,. <OIlrt for . delmnination of Ihose limited poTiIOllS of{he report ""tllch ~re pnlJ)eI1yeM'mpl. as containing cOllCIusIOM. rerom~I;on,. or "Ploions;1nd ""'" ....... rable from the f","",al pmlon' of tho """'''n~ .. n.. court <!aled:

We are not ptS$Uadtd by 'he De~mt", " argumo:nl, Aoyone "'."'o~. "'pon must of ......... lIy

" .

sdee l IIit' ractstO he menl lOned 1ft II ; bu l a report Ilou not beroln" a part of ,he delihemi .... process mo:rc ly b<-(atlse ~ conl .. ns onlyttoo<e f30ClS "'hkh Ihe pt'rson maJang lhe "'JItII1 Ih'nh material. If ,hl' """re not ",. C"l:ry (ae lual rep<>rt wou ld be pr<iIeCltd as pM 0( tile delihe ... i"" pmce:ss .

.. The .1I0mey<henl pnVlltge is arommon bweV>dcnt iary ptlV,teg<e """chhas t«ncodified in R,*SOI o(lhe

Federal Rul .. of Evidence and Rule 26 ofille federal Rules of CiVIl """'wure fos usc in , i'ililtig"'ioo ond d"covery. While !he Rules are not aJlPlicable 10 con~,onal subpoenas.'iIe ImereSlS Implicaled by lilt anOf1lq'chenl pnvile~e: geoerally are .ubsumed unde, a daim of ""..,ul ivtc pnvilege when • dispute arise. ovt" """" ",.OlS bel"",",O lilt EA"",,"ve ""d Leg"lati,.. Branches. and Ihe ,,,,,,ide,,,,,,,,,, 0( ""panIlion of,.,.....n ~nd d(eCli"" ""norma""" of conslllu, ional dUlle:s ",,"noine Ihe validity d Ihe c laIm or ptlVllege

494


(McNaughton rev. 1961). See Upjohn v. United SllHes, 449 U.S. 383 (1981); Fisher v. United Stales, 425 U.S. 391 (1976). Notwithstanding its overall purpose to protect the client's factual disclosures, the privilege has been extended by federal courts to include an attorney's communica.tions to his or her client in order to prevent inadvertent disclosure, either directly or by implication. of infonnation which the client had previously confided to the attorney, as well as to foste r the anorney's ability to give sound and infonned professional advice. Coastal States. supra, 617 F2d a1862; Mead Data Cenlral. supra. 566 F.2d at 254 n,25.

like the executive and deliberative process privi leges, the anomey-client privilege is designed 10 encourage full and frank discussions among the persons whose communications are protected and thereby to "promote ItheJ broader public interests in the observance of law and administration of justice ." Upjohn, supra, 449 U.S. at 389. To this end, "(tlhe privilege l:'ecognizes that sound legal advice or ::advocacy ... depends upon the lawyer's being fully infonned by the client." /d. See also Mead Dala Cenlral, supra . 566 F. 2d at 252 ("The opinion of even the finest anomey .. . is no better than the infonn::ation which his client provides. In order to ensure that a client receives the best possible legal advice, based on a full and frank discussion with his attorney, the attorney-client privilege assures him that confidential communications to his attorney will not be disclosed without his consent." ). See generally 2 1. Weinstein mnd M. Berger, Weinstein's Evidence 11 503 (1982).

Although the anomey-client privilege traditionally has been recognized in the context of private attomey-client relationships, the privilege also functions to protect communications between government attom~ys and client agencies or departments, as evidenced by its inclusion in the FOIA, much as it operates to protect anomey.client communications in the privllte sector. See Brinton v. Department ojState. supra. 636 F,2d at 603-04; Mead Data Central, supra, 566 F.2d al 252- 55; Jupiter Painting Contracting Co. v. United Slates. 87 FR.D. 593,598 (E.O. Pa. 1980);Faicone v. lmernal Revenu~ Service. 479 F Supp. 985, 989--90 (E.D. Mich . 1979). See also Office of legal Counsel, "Memorandum for Helen S. Lessin, Director, Federal legal Council . re: OLC Policies Regarding Issuance and Release of Opinions" (Sept. 10, 1980).~

The Supreme Court's recent opinion in Upjohn , supro, analyzing the scope of the corporate "client" for purposes of the attorney-chent privilege. is helpful to our consideration of the privilege in the context of th{~ Attorney General and the Office of the President. In Upjohn. supra. the Cour1 discarded the restrictive "control group " testl O for detennining which communications are within the scope of the privilege in a corporate setting, in fa ... or of a broader scope of " ellent, " more suited to the purposes of the privilege . The Court noted that the

" In addi!"",. Go""mm.m anomcy • . no I.,"" !han pnval. anamey •. an: to< .. r>d by It.< ABA Cude uf Professiooar Rcspon.ibilny ·, dISCiplorwy rul. DR 4--101(8). whoch prlWldeS thai . 13W)'('1 , h. 1I 001 knowingl y ft'>ICal • ronlidencc or sec"" of "" cl .... 1 unle .. the ellenl consenlS 10 ""''' dlSClo>,u ... ,

"' n.c rontrol VOUP 1",1 n:, tncts the def,nilion of .. ell" .. .. rO'l pU'l""':S of Ih; jlnVllege 10 " upp:r·<:<helon m .... gcmcm·· offiCials " ",spomible for diRCIlng l ihe d ienl COfl"lr3Ilon"] lICllons In ~po~ 10 legal adv~ .. 449 U.s al 388. 391.

495


privilege was designed 10 protect both the giving of professional advice to those who are charged with the actual implementation of the client corporation's policies, as well as the communication of information to the attorney sufficiently specific to enable him or her to provide sound , practical , and infonned legal advice. Id. at 390. These purposes were frustr.lted by the narrow scope of privileged communications recognized by the "control group" test.

While the Upjohn decision studiously avoided setting forth a precise fonnu lation of the scope of the attomey-elie nt privilege in the corporate or governmental seuing, the Court was nonetheless insistent in its view that application of the privilege had to be detennincd in each case to serve the purposes of the privilege. In vicw of the criticism ellpressed in the Upjohn d.ecision of the control group test. it is likely that, in most instances. the "client" in the context of communications between the President and (he Attorney General. and their respective aides , would include a broad scope of White HouS(~ advisers in the Office of the President. The "functional" analysis suggested by Upjohn focuses on whether the privilege would encourage the communication of relevant and helpful information from advisers most familiar with the matters on which legal assistance is sought. as well as whether the privilege is necessary to protect and encourage the communication of frank and candid advice to those responsible for executing the recommended courses of action. A corollary to this expanded concept of the " client," which reflects the realities of the governmental sctting. is that the " attorney" whose communications are subject to the attomey-client privilege may. in fact. be several attorneys responsible for advising the " client" agency or division regarding the prudence and propriety of proposed courses of conduct. Thus . advice given by the various Assistant Attorneys General and their staffs may be subject to the privilege , See, e.g .. Br;ruon v. Deparlmenl if Slate. supra. 17

Notwithstanding these notions of" attorney" a nd "client" which the Court has expanded to implement fully the purposes of the privilege, the actual operation of the privilege continues to be governed by the traditional guidelines and procedures.2A As in the traditional auorney-client conte4t, once the privilege has attached, only the client , in this case the President or some other high level official in the Office of the President who is responsible for receiving and acting on the legal advice, may waive it. Thus, for exam pic, a FOIA request lodged with the Department of Justice for infonnation communicated to the Office of the President by the Attomey General which is protected by the attorney-client privilege should not be honored unless the Office of the President consents to release of the infonnation . See Office of Legal Counsel, "Memorandum for Helen S. Lessin," supra. See generally Hannon. Memorandum for Patricia M.

,., Alllw>ugh Inc Brin'on deCIS'on was u1urn;ll~ly ckide<l on delibtr:lll'e fI"X~s.s groond~ . • he OItomey·ct .... n. priv,lt~ &~pe't ..... eo<cmpuon S ....... dl",us.scd • Itng,h by .ht 'Qtln_

"Set U",,~d SIOI{S v_~nd{fSlm. 34 fit D. S l~ , 523(D Colo:>. 1%3). forappllcationoh,," tntdlllonal 311omey-chen. privilege formulation in the ~mrnemal COllIe'"

ITI"" documents arc pnvilege<l indar II> they d<> nOl comAlem OJ n:poll on informauon coming from perwns oUl5ide I,," &~m or from publIC docufTtenl}. Of are summanes of confell:~ held wi,h or in the Jli'e211<.'e or """,oden;. and _ produced '''"h',," idea of obIaimngm receiving lc&al ad vle,,_

496


Wald, Ass istant Attorney General, Office of Legislative Affairs, "Formulation of Policy on Disclosure of Information to Congress" at 8, 10 (July 19, 1977).

In addition, the person seeking to assert the privilege-either the client or the attorney on the client's behalf-must be able to demonstrate that the confidential disclosures "might not have been made absent the privilege," Fisher v. United States, supra, at 403, and thai Ihe underlying facts for which thc privilcge is claimcd have remained confidential. Mead DataCe",ral, supra . a1253. See also Permian Corp. v. United States, 665 F.2d 1214 (D.C. Cir. 1981); Brinton v. Departmetll of State. supra.N Applying this rule to President-Allomey General communications, the circulation of advisory documents outside the operative circle of officials tesponsible for giving or receiving advice in the Office of the President or the Department of Justice. or, the reporting of factual information acquired from persons or sources outside the privileged relationship, would constitute a waiver, whether express or impl ied, of the privilege with respect to those documents and would subject them to disclosure, unless exempt from the Freedom of Information Act pursuant to some other exemption. See Permian Corp. v. United States. supra:)O Brinton v. Department qfState. supra . Advisory documents from the Attorney General which have been turned over to congressional committees are presumed to be no longer confidential and may not be the basis of a claim of attorney-client privilege. See generally Harmon , " Formulation of Policy on Disclosure of Information to Congress," supra. JI See also Permian Corp. v. United States, supra, at 1220-22. However. these same documents may be subject [0 the deliberative process privilege under exemption 5.n

,. The: t«jUI",mcnl thOl tho ("QfIfjd~nl •• 1 d,,,,lo$U",S for which lhe pnv,'ege .. >ough. 1\;> ... ",maont<i C",, ~dc"I'al

~ not pl<:cluck.he pnvllcgc's propn 3IIlICI\rn<:N \ocommwncanoos """""h b:w. bet"TI cucu'acd in a Iomned fash"", ~nd l11e anomcy and the ~n wllhi.the grouprequesung legal advice. Su UpjMn' Uniud SIa'"," "UpN. al 395, Coos,,,t S,,,us. sUP"" 31 863: MM<! Data C~~'NI . .. upro. 111 253 n.24 . ThIS broade, scope of lhe ronfidcnllilily ""I"1",men! is pan>C\llarly ~ppropriale im lhe corpornle and go""mmenlal conte .... Su diMlIss,on. ",/ro

.. In 1\0""''''' CMP • 'up'a • • he D.C. Cueu'l held Ih.1 the V<lluntal")' d,sclo ... re of confi",,,,iallllll1. n.I, 10 a Ih,rd pony outside lhe pnviieged relaltonshlp. in thIS elSe. the SEC. ronst;luled • wa, ... r or the priv, 'ege with ocsp«t to ~ """"'mems. "",wlIlIstand,ng the SEC's .greemcntlo proteCI thedocumt:n1S from furtber disclosure . Thus. the cOlm "'Jetted ,he rule 01 "I imi",d """1' .. " ...... foll""",d by the Eghlh CircU It in D,wrJifrd Indl/J'''.'' , ..... v. Mt,tdlllr. "2 f' 2d 59611977) I~n bonc~ and cunclOOed thai the PIlvI"'ge could 110 IoPger be invoked 10 pi"\lt«'tthe dro::umentS rrom be'ng dlselosnl by the SEC \() another "",emmem agency'

The E1glnh CII"CU II', "lomlled waiver" rule has 1.111. '0 do wllh (lIoe ] «:Infide"ua' l ink bel""""".he cloem and his Iqal ady,sor VolunllllY <XiOpI'nuion with go....mment "'_tigallOns may be a laudable "':lIv0l1. but i. is hardwundt"rstand how such COOOUCI improlles lite 3Il0mey·chent ftlauoosllip If lhe eI;enl feels lhe l>Ced.o keep h, .communOCal ,on< wllh h,. 'lIomeywn~de,,".I , he IS free 10 <k> SO ut'lder the ", .. Io"I",al ",Ie by ~OII~'Sle nlly ...... ru"g lhe priv,icge. even ... tlen the dISCOvery reqU(SI come' from a " tne!ld[y " a,eocy.

(TJhe 'l1Iom"Y-clieni pnv'lege oopld be aV311~ble only atlhe Indillonal pnce .• liugan. who wi$hcs 10 ",sen w nfidenllalily must mainl. ,n genu'ne: confidenllahly

665 F 2d 1M 1220-21. 1222 (fOO!flO\e om,lIed). " Fonner Assi' tant AlIomcy Gene",1 Harmon 'uggesIed that .ven lhe " hmited di,d<WJ~",nV<lI~ In d i ~1o<

ing privik,ed materi.l. 10 In ... "CllU ... seSSion of COOlg~ss . or in a IlOnpIlbloc aolminmntive heaong. """",Id appear 10 unden", .... he IhooftlIC.1 predicate of the priv;lcg~:' I. apploed in lhe c,vil d",wvel")' w"'.xl. "Tk purpose of a privilege IS 10 prot« 1 con~d''''ial cornmunicallons I'II«<Ssary to prorllOlC cen . in ~lallooshlps. once thl1confidcmialilY is breached. the rationale tor gnnllnl lhe po""e,,, 00 longer applies" "Rwm~l'\lon of PoI~ on Di""lo"''' of '''form'''lOll 10 Congren:' .upra. '" j «lIat,on< omlllN)

" There IS an add'loonal l'nv,'cge avaIlable under e.cmplloo ~ wldch may be invoked. when appropoate. to

497


Dn. The "GoVffnmental" Evfdentiary li'TivUeges-and Their Freedom. c1 Dnrormatlon Act Coun.terparts

The so-called "governmental"' evidentiary privileges are common law privileges, now incorporated into the Federal Rules of Civil Procedure and the Federal Rules of Evidence, which have traditionally been available exclusively to the government as a litiganl. Daniel , Assistant Anomey General, Civil Division, "Memorandum to All Civil Division Attorneys re: Asserting Claims of Official Government Privilege in Litigation" (Nov. 1980). See generally McClelland v. Andrus, supra, at 1286, n.53, quoting Association for Women in Science v. Califano. 566 F.2d 339 (D.C. Cir. 1977). These privileges-the informant's privilege, the law enforcement investigatory files privilege,l3 and the privilege for confidential information on required reports14_supplemenlthe deliberafive process , attorney-client and work-product privileges discussed above which are available to governmental as well as private panies in the civil litigation and discovery contexts. See Fed . R. Civ. P. 26: Fed. R. Evid. 501. These "governmental" privileges are necessary to protect the ability of the Executive Branch to discnarge its duties under the Constitution and the laws of the United States, but because their assertion in litigation does not rai!;e the problems of a constilUlional conllict with a coequal branch , these privileges may be invoked by the head of the executive department in possession orcootrol of the requested documents, OT his or her delegate. 33 See ASsociation/or Women in Science v. Califano, supra. See also McClelland v. Andrus, supra: Daniel, "Asserting Claims of Official Governmental Privilege in Litigation" (Nov. 1980). These privileges also have

prou:cl rommu~kalioos rrom {he Officeof the Anomey Gc .. raI lt> Ihe orfi~ Q/"lhe ~idcnl-thc won:·prodUCI priVIlege "The _rt.proo:b:t privile&< undef" eJ<emplIO~ 5 <.II" II.~ FaIA prntoclS documen!$ ""'~ i~ eon"'mplallo n <.II" litipl ioa which reHccl1loe " _nlal 1"""« . ... " of attonlC)"s . n.. "",",·prod""l pn.,lege I. d i>tlnct from {he auomey·d{e n{ pnvilege in 1Iw "il prov.:les a WilTting al"tomey wtlh. 'zone of privacy' wi{hln whictl {O

thInk. pi ..... weigh facts and nodc~~. candidly evalUale a dieM's C'lSC:. and prepare legallhcones •• COQJ;I<l/ S''''.J. sup'a. al 864. While Ihe atlorney·elleN privilege if del;igned \0 po-<IIe<:{ lhe elietol', In"'..,sl in coo~dmhalily, ~ pu.rpose of the WO!t·prorJUCI prw,lege IS 10 pfOlCCl ··tIle ....... rsary Inal J'f'.'CCSs itself." fd.

6ecaus.e I{ is limiled 10 <kocwnc~ts prepam:I in conltmplalron of lilig .. "". the wort.produc1. privilege" !he IuS! invoke<! Q/" 1M "empllOn 5 pnVllegcs i~ lIIe conle.Ol 01 ~,denl .. All<>mey Gencn.l comm.ulicatioo. "The broad !Idvisory role lhalltoc Attorney General pbys vis·'·vis the Pmmi(:n{. lO£CIbe. willi lhe Presidem. p .... allad of In volV'! ..... ~{ in liu&"lIon SUllIegoes.1IIIkts their ronwnuntCllioas far roo.., suiled (O the dclibemiV'! procos. and auomey·clienl privilege. as a basi. [Of nondisclosure in h .. ga.iot, or hllder FOIA.

" "The investigatory fi les privikgo-which rm:jllCnlly encompasscs mformauon whim might TrIC.tIlhe idemi{), 0< S(3te""'nlS or i~fomwH5 __ proIects in"'",slS wfltch may be assetted under a claim oIexeculive privile", also, of the imeresu are suf ficlenlly suong In apon,cu lar ca<e ln ImphcaU! """>tHutioo.t/ con<enlS. Sn 4OOp. An'y Ge~ . 4~. Su also Q(fir;c: o£ Legal Counsel. " Executive Privilege i~ til 'galion rOf Investigative Fi les" (xllle •• 18. 1981): Harmon . " Memorandum 10 All Heads of orlkes. Divisio ~s. Bureaus. and Bo:artIs c(lIle ~mtm c( Justice." (May 23. 1977). Rehnq u;S! Testimony, sUP'I> . H<l"eV'!" bee .... lIIese in\erests r=ly ,mpinge <III Lhc performance 01 coffiti{U{,onal r.",:lIons oIlhe E>.~CPIl"" BTIlI"IC"h 10 {he gJfIC <kgrtt lIS ltoe "stale SCC!tti" or dehtlt"rn!l .... process compoae~1S of Ihe privi lt~. lhe privile~ l5 genenl ly assened simply as lUI e _idcnuary pnviltge in 1011,31'00.

'" n.. privilege for coofidemial i~ronm"io" on reqUIred sovemrneru repum is simllat w Ih: infomwofs priVIlege. IU discuss ion .. ) 1 • ;'lfru . !RIM it pfOl«lS infOO1llll{oo :;oIicited by the ~me~{ for its purposeson a prom~ of COO~dcMiahl y. Th IS pn_ile,e, like ill FOIA..,.e mpllon 6 COUnlerpVl , protOClS <ICC1denl "'pons. employ mem h1510ry repuns . finarocial disdosu,""s. conllicl·c(·in,e"':s{ rtporu:. and 0lil.,. info.mallon. Lhc dhcl.,....., of whicb IIiOOld constilu", • "dearly unwananled i~vasion of pe.sol1.t1 pnvacy."· ~ U.S.C. i ~~2(b)(6~ Set Dtp" tf S IaU V W .... J""g."" Pus, C ... . 456 U S. 595 (19S2~ Dq·I<lI~~A./' F~ Y. R .. ,u. 42S U. S . 352 (l 976 ): ..... s'1I!.". """"",III Sc/ttICt. Jup'a. ex {he prIVileges discussed in IIllS memOfllMum.lhis IS ltoe"as! likely privilege 10 be invoted ,~ the ron""'! of ~idem·Anomey Ge,..,.,,1 romm"niCIlIO~S. "St~ gtlltrally n.s. '''P'I>.

498


analogues in the Freedom of Information Act under exemptions 6 and 7, 5 U.S.c. §§ 552(b)(6),(7), to shield documenlS of the same general type from disclosure to membersof' the publ ic . As n()(ed in the foregoing discussion of the evidentiary pri vileges incorporated into exemption 5 of the FOIA , the coun must strike a balance bet"'Cen " the public concern in revelations facilitating the just resolution of legal dispUles Ion the o ne hand,! and , Qn the other, occasional but compelling needs for confidentiality." McClelland v. Andrus, supra at 1287. n.55, in deciding claims of privilege in the litigation context .

A. Informant's Privilege

The informant's privilege permits the government to withhold the Klentity of persons who furnish information conceming violations of the law, or OI:herwise render assistance, to officers charged with law enforcement responsibil ities . See 8 C. Wright & A. Miller. Federal Practice & Procedure , § 2019 at 155 (1970); RO\'iaro v. United States . 353 U.S. 53 (1 957): Black v. Sheraton Corp. of America. 47 ER.D. 263 (D.D.C. 1969), ajJ'd 564 F, 2d 550 (D.C. Cir. 1977). The informant's privilege recognizes that prospective informants usually condition their cooperation with law enforce ment officers on an assurance of anonymity in order to protect against physical harm or other undesirable consequences to themselves and their families which would very like ly result as a consequence of disclosure. United Sta(U v. Tucker. 380 F. 2d 206. 213 (2d C iT. 1967). Although this privilege protects only the identity of the informant , information provided by the informant may also be shielded under this privilege if ilS disclosure wou ld reveal the informer's identity. Rovario v. United States. supra. at 60 . The infonnam's privilege, like the other privileges discussed above, is qualified: therefore , the government must show tha.1 its interest in effective law enforcement out'o'lCighs the litigant 's need for the information . See Romrio v. United Stares, supra; In re Atlorney General of Uniud States . 596 F, 2d 58 (2d Cir. 1979): 2 1. Weinstein and M . Berger, Weinstein's Evidence "J 510(02J at 510-1 8 (1982).

B . Law Enforcement Inwstigolory Files Privilege

l ike the informant's privilege , the privilege for law enforcement investigatory files is necessary to protect ag3inst the hann that wou ld fl ow from public disclosure of information conlained in the files and to facil itate the government 's law enforcement process . See Black v. United States . 564 F.2d 531 (D.C. Cir. 19'7/ ); Brown v. Thompson. 430 F.2d 1214 (5th Cif. 1970). Disclosure of open investigatory fi lesl6 would undercut the government's efforts to prosecute criminals by disc losing investigative techniques , forewarning suspects under inves-

» 10.$ " IPJl3Rnt (rom the rcasotIS undtrlyin, the ,,"vi~,.,. the law Mfon:emenl: ,nvwig.>l"'Y filu pnv,~8" does ... apply 10 files pertain"'glo ,n_"pli"", whICh ho"" botn dooc:d. although ", f_IOIII"'OICCtCd by &nOIher priyile,e. I ., .. the onfotmalll'l privilege. _Id rontllMle 10 be shielded_ S~ 2 .... "einslc ... ~ Evodente 1 Xl'J(07) at m-n- ,II (1932~ Cj Supmne Coon', m: .... dosc\ll5loft 01 FOIA tl~n"l_ 7 In F~f y. "'''' .......... . 4S6 U.S. 6 1$ (1982 )

499


tigation, deterring witnesses from coming fonvard , and prematurely revealing facts supponing the govemmem's case .n The privilege for law enforcemem investigatory files is a qualified privilege, and may be overcome by among showing of need or interest in disclosure ofthe infonnation . See Black v. Uniled Stales. supra .

C . FOIA Exemplion 7

Exemption 7 of the Freedom of Information Act incorporates these privileges for law enforcement records to protect the infonnatio n contained therein from compulsory disclosure to members of the public. Exemption 7 exempts from the general disclosure mandate of the FOIA those matters which are

investigatory records compiled for law enforcemen t purposes, but only to the extent that the production of such records would (A) interfere wit" enforcement proceedings, (8) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranled invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source , (E) disclose investigative techniques and procedures. or (F) endanger the life or physical safety of law enforcement personnel[.]

5 U.S.C. § 552(b)(7). The subparts of § 552(b)(7) make clear that the interests protected therein are roughly analogous to thos.: protected by the "governmental" privileges in litigation for informant 's ident ity and law enforcement investigatory files. See generally FBI v. Abramson. supra: NLRB v. Robbins Tire & Rubber Co .. 437 U.S. 214 (1978); Lesar v. Dep<'1f1ment if Justice, 636 F.2d472 (D.C. Cir. 1980), Church qScientoio8Y <lCalif. v. Department if Justice. 612 F. 2d 417 (9th Cir. 1979).

IV. Conclusion

The privileges available to protect the confidentiality of the Attorney General's communications with the Office o f the President can be roughly categorized into three classes, depending upon the nature of the communications for which the privilege is asserted, the interests which are sought to be protected by the claim of privilege , and the persons against whom the claim is made. This memorandum represents an effort by this Office to provide the .Attorney General with a general outline of the privileges available to him to prott!c t his confidential communica-

l' Su "'SO tOl'Tller AIV>nlC)' G~n...,,1 b<k<an 't OJ>",iona. 40 Op. Ao;'y Gcn 45 ( 1941 1. conduding 'h ~ prtm.tu", disclQOu"" of I1M' .nfon:.mem IIWesUgallV(: repom w Congress "'. \he publ IC coold f"l'Judl<c lhe ngllu (I{ prospecuve ddelldams whose in~suglll0f\5 are lilt SUbj«1 of lhe "'JIOI'IS,

500


tions and working papers from compulsory disclosure when he believes thai disclosure would be against the interests of the Department . Ihe President, or the broader "public. " and to provide guidelines for the assert ion of those privileges. While the foregoing discussion should prove hclpful in providing a framework for analysis of potential claims of privilcge . we would caution that the appl icability of any privilege to a g iven set of ci rcumstances will almost always involve a judgment of competing values. Whi Ie the Attorney General or the clienl must decide initially whether to assert Ihe privilege. the task of resolving confl ic ts arising OUI of such competing values, in the final analysis. is o ne that is reserved 10 the courts.

501

THEODORE B . OLSON

Assjslam Allorney General Office of Legal Counsel