Yesterday, the D.C. Circuit issued a ruling in allowing the CIA to withhold a draft of one volume of a history of the Bay of Pigs Invasion under FOIA Exemption 5, the exemption for "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."
FOIA Exemption 5 encompasses the privileges that the Government could assert in civil litigation against a private litigant, such as the attorney-client privilege, the attorney work product privilege, the presidential communications privilege, the state secrets privilege, and the deliberative process privilege. In this Freedom of Information Act case, the CIA invoked the deliberative process privilege--the privilege which covers deliberative, pre-decisional communications within the Executive Branch.
In ruling that this draft document could be withheld, the Court said:
A draft that did not result in final agency action can still be properly withheld under Exemption 5.
The CIA did not forfeit the benefit of the FOIA exemption by releasing similar information regarding the Bay of Pigs operation.
Exemption 5 was enacted because Congress determined that the release of material that is predecisional and deliberative harms an agency's decision making process, and courts cannot "second-guess that congressional judgment on a case-by-case basis."
The passage of time does not render the deliberative process privilege inapplicable, especially because the privilege is intended to facilitate candid communications, and release of material would chill current and future agency discussions and decisionmaking.
The selection of facts culled in a draft agency history is part of the deliberative process because it "necessarily involves 'policy-oriented judgment.'"
Judge Rogers dissented from the panel's opinion. In her opinion, she noted that the CIA had released drafts of other volumes of the CIA history in response to FOIA requests or otherwise. Judge Rogers reasoned that, while an agency does not waive its claim to a FOIA exemption by releasing similar matters, the release of other drafts was "fundamentally inconsistent with [the agency's categorical] claim that release of [the draft of Volume V] would threaten the decisionmaking process of the agency." Judge Rogers also noted that she was troubled that the CIA had filed a public declaration criticizing the draft history "while denying any opportunity for the work to speak for itself.":"These circumstances, no less than disclosure, could cause current and future staff historians to curtail the candor and creative flair that the agency values as part of its History process." Judge Rogers ultimately said that the agency's declarations failed to meet the agency's burden of proving the categorical applicability of the deliberative process privilege; therefore, she said she would remand to the district court for further consideration to re-evaluate the agency's Exemption 5 claims, including the effect of the passage of time on the applicability of the exemption.
The court's decision in this matter--which adopted a bright line rule allowing for the withholding of draft agency histories--is a troubling precedent for FOIA requesters and open government advocates.
National Security Archive v. Central Intelligence Agency, No. 12-5201 (D.C.Cir.)