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Items such as designs and drawings which "are significant not as records but as items of valuable property"151 have a rather peculiar status. As seen earlier,152 some agencies choose to define "records" in such a way as to exclude these items entirely from the scope of subsection (a) (3). Others consider them records but exclude them from mandatory disclosure by holding them to be trade secrets under (b) (4).153 Most of these regulations state expressly that, as with trade secrets, these items are protected whether obtained from an agency contractor or generated by the agency itself,154

Some information placed within (b) (4) would seem more properly excluded on some other basis. For instance, this exemption has been used to exclude inspection and investigation reports that might be better covered by (b) (7); 155 views of consultants on research studies, which are also covered by (b)(5);166 and material related to the position of the United States in international aviation matters, similarly excludable under (b) (5).167 This may indicate a tendency to make (b)(4) a miscellaneous exemption covering cases which may not clearly fall within any of the other exemptions, possibly through a broad reading of "confidentiality."

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"{I}nter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." (Exemption (b) (5).)

This exemption was added to satisfy critics who argued that the new or financial information obtained from the public and privileged or confidential." (emphasis added). It was suggested during the Senate hearings that this would protect only information obtained from outside the agency, but not information specifically produced by or for the agency, such as the Treasury Department's processes for making paper and printing money. Statement of Edwin Rains, Assistant General Counsel, Department of the Treasury, Hearings on S. 1160 Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 89th Cong., 1st Sess. 31 (1965). While the Attorney General cites these hearings and the substitution of the words "from any person" as an indication of congressional desire to include internally generated material, ATTORNEY GENERAL'S MEMORANDUM, supra note 8, at 34, the sole explanation for the change given in the Senate report is that it was intended to better convey the idea of protection of "information of a highly personal and individual nature." S.REP., supra note 4, at 2. It is therefore far from certain that this change was made for the reason the Attorney General suggests.

151 ATTORNEY GENERAL'S MEMORANDUM, supra note 8, at 34.

152 See note 74 supra and accompanying text.

153 E.g., NASA Regs., 32 Fed. Reg. 9530 (1967); Dep't of Transp. Regs., 32 Fed. Reg. 9287 (1967); AEC Regs., 32 Fed. Reg. 9216 (1967).

154 E.g., Dep't of Transp. Regs., 32 Fed. Reg. 9287 (1967); AEC Regs., 32 Fed. Reg. 9216 (1967).

155 SEC Regs., 32 Fed. Reg. 9829 (1967). 156 HEW Regs., 32 Fed. Reg. 9318 (1967). 157 CAB Regs., 32 Fed. Reg. 8797 (1967).

section 3 would make all government employees work "in a fishbowl."158 It is designed to insure that full and frank discussion within and between agencies will not be discouraged by the threat of public disclosure of the records of such communications.159

164

160

163

Since (b) (5) was intended to be coextensive with the protection of records against discovery,' the law of privilege plays a large part in the interpretation of this exemption. Three privileges that would seem applicable here, attorney-client,' 161 informer's,162 and work product,' are generally covered in the regulations under the (b)(4) "privilege" category. The (b) (5) regulations concentrate on the inter- and intraagency privilege,165 which is rather new and still not clearly defined. Apparently a synthesis of the other three put in agency context, this privilege covers "intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated."188 As with work product, courts are more willing to extend the privilege to materials.

158 H.R. REP., supra note 6, at 10.

159 The "purpose of this section is to protect the full and frank exchange of ideas, views, and opinions necessary for the effective functioning of the Government." National Transp. Safety Bd. Regs., Dep't of Transp., 32 Fed. Reg. 9966 (1967). When first introduced into the Senate, (b)(5) protected only communications "dealing solely with matters of law and policy." It was pointed out frequently and forcefully during the Senate hearings that because discussions of law are invariably tied to discussion of the factual situation involved, the exemption would almost never apply. The Justice Department felt that "if [(b)(5)] were to be enacted, it would have to be circumvented. Compliance would be impossible." Statement of Nobert Schlei, Assistant Attorney General, Hearings on S. 1160 Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm, on the Judiciary, 89th Cong., 1st Sess. 205 (1965). To meet these objections, the committee recommended the present wording. S. REP., supra note 4, at 1.

160 H.R. REP., supra note 6, at 10.

161 See Prichard v. United States, 181 F.2d 326, 328-29 (6th Cir.), aff'd, 339 U.S. 974 (1950).

162 See Roviaro v. United States, 353 U.S. 53, 59-62 (1957).

183 See Hickman v. Taylor, 329 U.S. 495, 508-13 (1947).

184 E.g., Office of Inspector General Notice, Dep't of Agriculture, 32 Fed. Reg. 9850 (1967); Dep't of Defense Regs., 32 Fed. Reg. 9669 (1967); see notes 120-125 supra and accompanying text.

165 A good example of this privilege as a basis for exemption is the regulation of the SEC, which exempts

interagency or intra-agency memoranda or letters, including records which reflect discussions between or consideration by members of the Commission or members of its staff, or both, of any action taken or proposed to be taken by the Commission or by any member of its staff and also reports, summaries, analyses, conclusions, or any other work product of members of the Commission or of attorneys, accountants, analysts, or other members of the Commission's staff prepared in the course of an examination of the books or records of any person whose affairs are regulated by the Commission, or prepared otherwise in the performance of their duties, except those which by law would routinely be made available to a party other than an agency in litigation with the Commission.

SEC Regs., 32 Fed. Reg. 9829 (1967).

166 Stiftung v. Zeiss, 40 F.R.D. 318, 324 (D.D.C. 1966).

167

which reflect the mental processes of the compiler, and consequently purely factual reports are often held not protected.' Whether the privilege protects investigatory reports has generally turned on the difficulty experienced in obtaining the information on which the reports are based. Where an agency must depend on voluntary sources of information which would be discouraged by the threat of disclosure, the privilege is usually upheld. 108

As implemented by the regulations, two separate classes of material are being withheld under (b) (5): (1) inter-agency and intra-agency memoranda and correspondence, and (2) material whose premature disclosure would adversely affect the agency. The first class is clearly within the purview of the statute, but the second raises serious questions, later to be discussed."

169

The regulations of the first category under (b) (5) reflect the full gamut of the inter- and intra-agency privilege and range from the very general to the very specific.170 Clearly authorized by this exemption, and listed by the various agencies, are such things as legal memoranda and correspondence,11 minutes and transcripts of discussions of agency officials and bodies,172 staff analyses prepared for internal use, opinions and interpretations prepared by staff,174 records of deliberations of staff personnel,176 recommendations of experts, consultants, or advisory com

178

187 See, e.g., Boeing Airplane Co. v. Coggeshall, 108 U.S. App. D.C. 106, 280 F.2d 654 (1960). This is reflected in the FCC's (b)(5) regulations:

Normally such papers [inter-agency and intra-agency memorandums or letters and the work papers of members of the Commission or its staff] are privileged and not available to private parties through the discovery process, since their disclosure would tend to restrain the commitment of ideas to writing, [and] would tend to inhibit communication among Government personnel

FCC Regs., 32 Fed. Reg. 10,576 (1967) (emphasis added).

168 E.g., Machin v. Zuckert, 114 U.S. App. D.C. 335, 338, 316 F.2d 336, 339 (1963) (Air Force).

169 See notes 185-190 infra and accompanying text.

170 Typical of the former are those of the Office of the Inspector General, which state: "Among OIG records in this class are those which consist of intra-agency or interagency memoranda or letters containing opinions, recommendations, or reports of internal deliberations." Office of the Inspector General Notice, Dep't of Agriculture, 32 Fed. Reg. 9850 (1967). See also Bureau of Narcotics Regs., Dep't of the Treasury, 32 Fed. Reg. 10,071 (1967); Dep't of Transp. Regs., 32 Fed. Reg. 9287 (1967).

171 E.g., IRS Regs., Dep't of the Treasury, 32 Fed. Reg. 9542 (1967); FTC Regs., 32 Fed. Reg. 8459 (1967); FMC Regs., 32 Fed. Reg. 8409 (1967).

172 IRS Regs., Dep't of the Treasury, 32 Fed. Reg. 9542 (1967).

173 E.g., SEC Regs., 32 Fed. Reg. 9829 (1967); AEC Regs., 32 Fed. Reg. 9216 (1967); CAB Regs., 32 Fed. Reg. 8797 (1967).

174 Dep't of Transp. Regs., 32 Fed. Reg. 9288 (1967); Dep't of State Regs., 32 Fed. Reg. 9161 (1967).

176 Dep't of the Treasury Regs., 32 Fed. Reg. 9563 (1967); IRS Regs., Dep't of the Treas ury, 32 Fed. Reg. 9542 (1967).

176

177

mittees whose advice is sought by the agency, advisory opinions relating to liability of an agency in a medical malpractice suit,' and recommendations to select particular cases for the enforcement of a law or regulation. 178

The limitation of (b) (5) to "inter-agency" material raises questions involving the meaning of "agency." One problem concerns letters to Congress transmitting legislative recommendations and proposed agency budgets. If Congress is not an agency (and the Administrative Procedure Act expressly excludes Congress from the definition of "agency") 1 then this material would not be protected. The same difficulty arises with communications between an agency and a state agency concerning federal grant programs. The problem is enhanced by the fact that this type of correspondence probably could not be immunized under any of the other exemptions. The difficulty may, however, be avoided by distinguishing between the meaning of "agency" in the APA generally and in the inter-agency provision. The exclusion of Congress from the APA definition of "agency" indicates that it is not subject to the APA, but that need not preclude it from being a group capable of giving rise to interagency privilege. Congress clearly did not intend to hamper its own operations, ,180 and disclosure might have this effect by discouraging free communication between itself and the agencies."

181

A questionable regulation under (b) (5) is the exemption of documents relating to specific loan applications. 182 These should most probably be withheld under exemption (b) (4), and generally are.188 A loan application submitted by a private person is neither "inter-agency" nor "intra-agency,' and the only reason for an agency to put it in (b) (5) would be to maximize the number of bases for exemption it can claim.

184

176 IRS Regs., Dep't of the Treasury, 32 Fed. Reg. 9542 (1967).

177 HEW Regs., 32 Fed. Reg. 9318 (1967).

178 Id.

179 5 U.S.C. § 551(1) (A) (Supp. II, 1965-1966).

180 This can be implied from § 552(c), which states in part that the Act cannot be used to justify withholding of information from Congress. Act of June 5, 1967, § 552(c), Pub. L. No. 90-23, 81 Stat. 54.

181 The focal question should always be whether refusing to exempt such information threatens full and frank agency discussion. What the agencies might attempt to do, should they desire added assurance of nondisclosure of such materials, is to place them in the second unoffi cial category prevalent throughout this exemption's regulations, i.e., material the premature disclosure of which would impede the effective functioning of the agency. The validity of this category will be discussed later in this Note.

Id.

182 Farmers Home Administration Regs., Dep't of Agriculture, 32 Fed. Reg. 9615 (1967). 183 Even the Farmers Home Administration lists it under this exemption, as well as (b)(5).

184 It might be argued that the applicant is merely filling out a form which originated within the agency and is its property. But the important point is that the information placed

Many (b)(5) regulations exempt a second category of materials— records whose premature disclosure would impede the effective functioning of the agency. Typical of these is the Treasury Department regulation, which states that "this exemption is also designed to protect from premature disclosure Government plans such as those . . . final plans which cannot be made available in advance of their effectuation without harm to the authorized and appropriate purpose for which they are being used....185 This interpretation of (b) (5) is one of the most confusing developments under the new statute. Although it is clear that Congress intended such materials to be protected,186 it is far from clear that exemption (b) (5) was intended to be the vehicle for providing that protection. While the Attorney General cites the House report as authority for withholding this type of information under this exemption,187 the authority is questionable since the cited language is found in a general discussion of the old "internal management" exemption," rather than in the description of (b) (5). The agencies have chosen, however, to adopt the Attorney General's interpretation to insure nondisclosure.

188

The major significance of the regulations under this second category is that they apparently enable the agencies to withhold materials by the simple expedient of scheduling them for release at some later date.180

in the application blanks was supplied by a private party and that the form is the communication between that party and the agency.

The question of what memoranda or correspondence are "intra-agency" merits analysis. The Department of Health, Education, and Welfare exempts "material received or generated by the Department before the transaction to which they relate has been completed." HEW Regs., 32 Fed. Reg. 9318 (1967). Material that is generated within an agency will certainly be intra-agency. As for material received by an agency from a private person, the crucial question is whether there is a point at which information received from outside an agency becomes "intraagency." It seems that information gleaned from the submitted material and integrated into an intra-agency memorandum will be exempt.

There is also a problem in deciding what constitutes a memorandum or letter. The Department of Health, Education, and Welfare exempts "internal memorandums, opinions and recommendations, correspondence and documents, as well as notations, route slips, and working papers...." Id. Inclusion here should be liberal to accord with the spirit of encouraging full and frank discussion.

185 Dep't of the Treasury Regs., 32 Fed. Reg. 9563 (1967); accord, FCC Regs., 32 Fed. Reg. 10,576 (1967); AEC Regs., 32 Fed. Reg. 9216 (1967).

186 The House report states that "a Government agency cannot always operate effectively if it is required to disclose documents or information which it has received or generated before it completes the process of awarding a contract or issuing an order, decision or-regulation." H.R. REP., supra note 6, at 10. While such documents will usually relate to måtters which are not yet completed, the House report points out that even finalized plans may require protection from premature disclosure. Id. at 5.

187 ATTORNEY GENERAL'S MEMORANDUM, supra note 8, at 35-36, citing the language quoted in note 186 supra.

188 Act of June 11, 1946, ch. 324, § 3, 60 Stat. 238.

189 See, e.g., NASA Regs., 32 Fed. Reg. 9530 (1967); AEC Regs., 32 Fed. Reg. 9216 (1967).

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