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Traditionally, the courts have established two fundamental requirements, both of which must be met, for the deliberative process privilege to be invoked. (73) First, the communication must be predecisional, i.e., "antecedent to the adoption of an agency policy." (74) Second, the communication must be deliberative, i.e., "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." (75) The burden is upon the agency to show that the information in question satisfies both requirements. (76)

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Many courts have confronted the question of whether certain documents at issue were tantamount to agency "secret law," i.e., "orders and interpretations which [the agency] actually applies to cases before it," (89) and which are "routinely used by agency staff as guidance." (90) Such documents should be disclosed because they are not in fact predecisional, but rather "discuss established policies and decisions." (91) Only those portions of a postdecisional document that discuss predecisional recommendations not expressly adopted can be protected. (92)

Finally, even if a document is clearly protected from disclosure by the deliberative process privilege, it may lose this protection if a final decisionmaker "chooses expressly to adopt or incorporate [it] by reference." (112) However, a few courts have suggested a less stringent standard of "formal or informal adoption." (113) Also, although mere "approval" of a predecisional document does not necessarily constitute adoption of it, (114) an inference of incorporation or adoption has twice been found to exist where a decisionmaker accepted a staff recommendation without giving a statement of reasons. (115) Nevertheless, where it is unclear whether a recommendation provided the basis for a final decision, the recommendation should be protectible. (116)

Similarly, when factual or statistical information is actually an expression of deliberative communications, it may be withheld on the basis that to reveal that information would reveal the agency's deliberations. (134) Exemption 5 thus covers scientific reports that constitute the interpretation of technical data, insofar as "the opinion of an expert reflects the deliberative process of decision or policy making." (135) It has even been extended to cover successive reformulations of computer programs that were used to analyze scientific data. (136) The government interest in withholding technical data is heightened if such material is requested at a time when disclosure of a scientist's "nascent thoughts . . . would discourage the intellectual risk-taking so essential to technical progress." (137) The Court of Appeals for the Ninth Circuit strongly echoed this view in National Wildlife Federation v. United States Forest Service, explaining as follows:

In NLRB v. Sears, Roebuck & Co., (192) the Supreme Court allowed the withholding of a final agency decision on the basis that it was shielded by the work-product privilege, (193) but it also stated that Exemption 5 can never apply to final decisions and it expressed reluctance to "construe Exemption 5 to apply to documents described in 5 U.S.C. Â 552(a)(2)," (194) the "reading room" provision of the FOIA. (195) This result inevitably led to no small amount of confusion, (196) which was cleared up by the Supreme Court in Federal Open Market Committee v. Merrill. (197) In Merrill, the Court explained its statements in Sears, (198) and plainly stated that even if a document is a final opinion, and therefore falls within subsection (a)(2)'s mandatory disclosure requirements, it still may be withheld if it falls within the work-product privilege. (199) (For a discussion of the automatic disclosure requirements of subsection (a)(2), see FOIA Reading Rooms, above.)

Accordingly, in light of this authoritative array of supporting precedent and the Sixth Circuit's express recognition of the settlement-negotiation privilege in Goodyear Tire -- much like the D.C. Circuit's recognition of the aircraft accident investigation privilege forty years earlier in Machin (291) -- such information may be withheld by agencies at the administrative level under Exemption 5, within the threshold conditions imposed by Klamath, (292) especially where disclosure would be particularly damaging to the government's ability to settle cases -- but care should of course be taken to maximize the prospects of further favorable case law development on this important FOIA principle. (293)

111. Formaldehyde, 889 F.2d at 1122 (quoting CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1161 (D.C. Cir. 1987)); see also Judicial Watch, Inc. v. Reno, 154 F. Supp. 2d 17, 18 (D.D.C. 2001) ("It is not enough to say that a memorandum 'expresses the author's views' on a matter [because the] role played by the document in the course of the deliberative process must also be established.").

112. Sears, 421 U.S. at 161; see, e.g., Afshar, 702 F.2d at 1140 (finding recommendation expressly adopted in postdecisional memorandum); Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967, 973 (7th Cir. 1977) (ordering disclosure of an "underlying memorandum" that was "expressly relied on in a final agency dispositional document"); Shumaker, No. 97-7139, slip op. at 14 (ordering disclosure of advisory document written by agency general counsel and "thereafter adopted as the official position of the agency"); Bhd. of Locomotive Eng'rs v. Surface Transp. Bd., No. 96-1153, 1997 WL 446261, at **4-5 (D.D.C. July 31, 1997) (finding that staff recommendation was adopted in both written decision and commission vote); Burkins v. United States, 865 F. Supp. 1480, 1501 (D. Colo. 1994) (holding that final report's statement that findings are same as those of underlying memorandum constituted adoption of that document); Atkin v. EEOC, No. 91-2508, slip op. at 23-24 (D.N.J. July 14, 1993) (holding recommendation to close file not protectible where it was contained in agency's actual decision to close file); cf. Tax Analysts, 117 F.3d at 617 (finding that documents "routinely used" and "relied upon by agency personnel," in a particular factual setting, were "statements of the agency's legal position" and accordingly not protectible).

113. Coastal States, 617 F.2d at 866; see Pentagon Fed. Credit Union v. Nat'l Credit Union Admin., No. 95-1475, slip op. at 5-8 (E.D. Va. June 7, 1996) (finding that board of directors' action "embracing" recommendations in "substantially same language" made documents postdecisional); Pension Actuaries, 746 F. Supp. at 192 (ordering disclosure simply on the basis that the IRS's budget assumptions and calculations were "relied upon by the government" in making its final estimate for the President's budget); cf. Skelton, 678 F.2d at 39 n.5 (declining to express opinion on whether reference must be to specific portion of document for express incorporation of that portion to occur).

116. See Grumman, 421 U.S. at 184-85; Afshar, 702 F.2d at 1143 n.22; see also Casad, 301 F.3d at 1252 (protecting documents that were "important consideration" for final decisionmaker but were not "dispositive"); Trans Union LLC v. FTC, No. 00-2384, 2001 U.S. Dist. LEXIS 4559, at *15 (D.D.C. Apr. 9, 2001) (following Grumman and rejecting argument that burden is on agency to prove that documents were not adopted as basis for policy); Perdue Farms, 1997 U.S. Dist. LEXIS 14579, at **20-23 (holding that fact that document was created only two days before issuance of final decision was insufficient to give rise to inference of adoption); Greyson v. McKenna & Cuneo, 879 F. Supp. 1065, 1069 (D. Colo. 1995) (deciding that use of phrase "the evidence shows" not enough for inference of adoption); Afr. Fund v. Mosbacher, No. 92-289, 1993 WL 183736, at *7 (S.D.N.Y. May 26, 1993) (concluding that record did not suggest either "adoption" or "final opinion" of agency); Wiley, Rein & Fielding v. United States Dep't of Commerce, No. 90-1754, slip op. at 6 (D.D.C. Nov. 27, 1990) ("Denying protection to a document simply because the document expresses the same conclusion reached by the ultimate agency decision-maker would eviscerate Exemption 5."); Ahearn v. United States Army Materials & Mechs. Research Ctr., 580 F. Supp. 1405, 1407 (D. Mass. 1984) (holding that fact that general officer reached same conclusion as report of investigation did not constitute adoption of report's reasoning).

132. See, e.g., Wolfe, 839 F.2d at 774-76 (protecting mere "fact" of status of proposal in deliberative process); Tarullo, 170 F. Supp. 2d at 278 ("Although the document does summarize relevant facts, that summary is so intertwined with . . . recommendations and opinions . . . that production of a redacted version would be incomprehensible, and the very selection of facts could also reveal the nature of those recommendations and opinions."); Brownstein Zeidman & Schomer v. Dep't of the Air Force, 781 F. Supp. 31, 36 (D.D.C. 1991) (holding that the release of summaries of negotiations would inhibit the free flow of information, as "summaries are not simply the facts themselves"); Jowett, 729 F. Supp. at 877 (determining that disclosing manner of selecting and presenting even most factual segments of audit reports would reveal process by which agency's final decision is made); Wash. Post Co. v. DOD, No. 84-2403, slip op. at 5 (D.D.C. Apr. 15, 1988) (finding factual assertions in briefing documents "thoroughly intertwined" with opinions and impressions); Wash. Post, 1987 U.S. Dist. LEXIS 16108, at *33 (holding that summaries and lists of materials relied upon in drafting report are "inextricably intertwined with the policymaking process"). But see Vaughn, 523 F.2d at 1145 (stating that survey results cannot be protected where they merely "provide the raw data upon which decisions can be made[ and] are not themselves a part of the decisional process"); Army Times Publ'g Co. v. Dep't of the Air Force, No. 90-1383, slip op. at 6-7 (D.D.C. Feb. 28, 1995) (citing Vaughn). 041b061a72

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