D.C. Circuit Court Rules on Exemption 5 Threshold Case

In a lengthy 2-1 decision, the United States Court of Appeals for the District of Columbia Circuit has decided in the National Association of Military Justice v. The Department of Defense, that opinions solicited from outside attorneys on agency policy meet the inter/intra agency threshold test of Exemption 5, and are therefore, withholdable under the FOIA.

The records at issue are recommendations from non governmental attorneys to the Department of Defense ("DOD") concerning recommendations on regulations establishing terrorist trial commissions.  The recommendations were specifically solicited from the attorneys by the DOD.  DOD withheld the recommendations pursuant to Exemption 5's deliberative process privilege.  The requester argued that the documents were not inter/intra government, and pursuant to the Supreme Court's holding in Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001), the documents must be released.

Two judges (Henderson and Williams) agreed with the DOD and found that the holding in Klamath did not invalidate a line of precedent in the D.C. Circuit that allowed outside consultants, such as the lawyers in this case, to be invalidated from Exemption 5.  The Court drew distinctions from the present case and Klamath in reaching its decision.

However, another judge on the panel (Tatel) disagreed with the conclusion and stated that the holding in Klamath prevented the outcome reached in the case.

It will be interesting to see if the requesters press this and try to obtain a rehearing before the entire Court and/or the Supreme Court.