FOIA Advisory Committee Recommends Exemption 5 Transparency

A US Air Force (USAF) female F-16 Fighting Falcon aircraft pilot, assigned to the 157th Expeditionary Fighter Squadron (EFS), South Carolina Air National Guard (ANG), with the call sign of “Vixen,” gives the thumbs up signal from the cockpit of her aircraft, as she prepares for a mission in support of Operation IRAQI FREEDOM. National Archives Identifier 6626463

Agencies using FOIA Exemption 5 to withhold privileged information would have to identify the corresponding privilege(s) invoked under a recommendation passed by the Freedom of Information Act (FOIA) Advisory Committee last month. 

The Committee voted 15-0 at its June 8, 2023, meeting to recommend that the Department of Justice (DOJ), Office of Information Policy (OIP), publish guidance regarding the use of Exemption 5 privileges in response to FOIA requests. Committee Recommendation No. 2023-01 asks that OIP guidance state that

whenever an agency withholds information pursuant to Exemption 5, the agency should identify the corresponding privilege(s) invoked. If the withholding takes the form of a redaction, the identification of a privilege should be made part of the redaction label; if a record is withheld in full, the agency should identify privilege(s) in its determination letter.” 

Exemption 5, 5 U.S.C. § 552(b)(5), applies to “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency,” which has been interpreted to incorporate civil litigation privileges. (A privilege is a legal rule that protects communications within certain relationships from compelled disclosure in a court proceeding.) 

Agencies across the government invoked Exemption 5 more than 65,700 times in fiscal year 2022. The three most common privileges used in connection with Exemption 5 are the deliberative process privilege, attorney-client privilege, and attorney work-product privilege. There is no requirement that agencies inform requesters which privileges they are citing under Exemption 5. OIP guidance would aim to change that practice so that requesters and the public have more information about “what their Government is up to” (DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)), particularly with respect to information potentially exempt from public disclosure by Exemption 5. 

OIP Director Bobak Talebian, a member of the FOIA Advisory Committee by virtue of his position, abstained from voting on the recommendation, but spoke in support of it at the meeting. The YouTube stream of the meeting is available here.