The United States Court of Appeals for the Second Circuit has issued a major opinion on Exemption 5. The case was brought by the Brennan Center for Justice against the Department of Justice ("DOJ"), the Department of Health and Human Services ("HHS") and the U.S. Agency for International Development ("AID"). The request sought three opinions of the DOJ's Office of Legal Counsel given to the Department of Health and Human Services and the U.S. Agency for International Development. The district court found that the 3 documents were not covered by Exemption 5 and ordered release; the government appealed.
After a lengthy discussion of how an otherwise Exemption 5 protected document can lose that protection, the Court of Appeals found that one of the documents had indeed been incorporated by public comments of HHS. That document was found to not be protected by the Exemption 5 protection and the district court's release order was affirmed. The Court of Appeals found that the other two documents were not specifically incorporated or adopted by HHS and were found to be exempt from FOIA release.
The opinion can be found here- Download Brennan Center FOIA Opinion