FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 July 14, 2004 

 THOMAS K. KAHN 

 CLERK

Honorable Richard Mills, United States District Judge for the Central District of Illinois, *

sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_________________________

No. 03-14264

_________________________

D. C. Docket No. 02-00126-CV-ORL-31-KRS

MOYE, O’BRIEN, O’ROURKE, HOGAN, & PICKERT,

Plaintiff-Appellee,

versus

NATIONAL RAILROAD PASSENGER CORPORATION,

Defendant- Appellant.

_________________________

Appeal from the United States District Court

for the Middle District of Florida

__________________________

(July 14, 2004)

Before TJOFLAT and HILL, Circuit Judges, and MILLS , District Judge. *

RICHARD MILLS, District Judge:
2

We deal here with the scope of the Freedom of Information Act’s Exception

5, commonly known as the “deliberative process privilege.”

Specifically, we must determine whether the district court erred in

concluding that the Freedom of Information Act requests made to the National

Railroad Passenger Corporation by the law firm of Moye, O’Brien, O’Rourke,

Hogan, & Pickert were not protected from disclosure pursuant to the “deliberative

process privilege.”

After a review of the record, we conclude that the material sought is

protected from disclosure by the “deliberative process privilege” and that the

district court erred in requiring the National Railroad Passenger Corporation to

disclose this material.

Accordingly, we must reverse and remand.

I. BACKGROUND

In December 1995, the National Railroad Passenger Corporation

(“Amtrak”) entered into a $321,000,000.00 contract with Balfour Beatty

Construction, Inc., and Massachusetts Electric Construction Company (“BBCMEC”) to design and build a high-speed rail electrification system between New

Haven, Connecticut, and Boston, Massachusetts. This project was referred to as

the “Northeast Corridor Electrification Project,” was financed with federal funds,
3

and was intended to construct a rail system which would enable Amtrak to operate

high speed train service between Washington, D.C., and Boston. The contract set

forth certain work standards and a series of payment terms.

In 1988, Congress established an Office of Inspector General (“OIG”)

within Amtrak. Congress established the OIG within Amtrak under the Inspector

General Act of 1978, 5 U.S.C. App. 3 §§ 1-12, which created inspector generals

throughout the federal government in order to combat fraud, waste, abuse, and

mismanagement in federal programs and operations. 

Pursuant to the terms of its statutory mandate, Amtrak’s OIG conducted a

series of financial and performance audits of BBC-MEC’s activities since the

inception of the Northeast Corridor Electrification Project. Some of these audits

prompted further investigation of whether BBC-MEC committed civil and/or

criminal fraud in seeking contract payments. Amtrak’s OIG also conducted a

series of more routine financial audits evaluating whether BBC-MEC’s various

claims for additional payments were proper.

On May 1, 2001, the law firm of Moye, O’Brien, O’Rourke, Hogan &

Pickert (“the firm”) sent Amtrak a Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552, request which contained 21 separately numbered paragraphs and which

asked Amtrak to produce documents associated with twelve routine financial
More specifically, paragraphs 1-13 sought various “audits” of the Northeast Corridor 1

Electrification Project; paragraph 14 sought “any and all draft audit reports” during the time

BBC-MEC had been involved in the project; paragraph 15 sought “any and all notes” regarding

those audits; paragraph 16 sought “any and all internal memos” regarding those audits;

paragraphs 17-20 sought audit documents relating to a prior contractor on the project; and

paragraph 21 sought documents relating to the issues of anchor bolts on the project.

4

audits which Amtrak’s OIG had performed with regard to the BBC-MEC’s

Northeast Corridor Electrification Project contract. The firm’s FOIA request

sought a broad array of documents, including final audit reports and associated

drafts, notes, internal memoranda, and other work papers.

1

On July 20, 2001, Amtrak issued a blanket denial of the firm’s FOIA

request, asserting that all of the requested documents were exempted from

disclosure pursuant to all three components of FOIA’s Exemption 5 (i.e., attorney

work product, attorney-client privilege, and deliberative process privilege). 5

U.S.C. § 552(b)(5). On August 20, 2001, the firm filed an administrative appeal

of Amtrak’s decision. 

However, Amtrak did not rule upon the merits of the firm’s appeal. Instead,

Amtrak, through a letter from its general counsel, informed the firm that Amtrak

would be unable to address the merits of the administrative appeal because the

documents in question were in the possession of Amtrak’s OIG.

On February 2, 2002, the firm filed suit in federal district court. 

Specifically, the firm sued Amtrak, pursuant to 5 U.S.C. § 552(a)(4)(B)(i.e.,
The district court has held three bench trials on the firm’s FOIA requests: one for FOIA 2

requests 1-16 which has resulted in the instant appeal number 03-14264; FOIA request 21 which

has resulted in appeal number 03-15535; and FOIA requests 17-20 which has resulted in appeal

number 03-14823.

5

FOIA), to compel production of the requested documents. Amtrak answered the

firm’s Complaint by reasserting, inter alia, that the documents requested were

exempted from disclosure by the deliberative process privilege codified in FOIA

at 5 U.S.C. § 552(b)(5). On June 7, 2002, the parties consented to having the case

heard by United States Magistrate Judge Karla R. Spaulding (“the district court”). 

The district court then held a series of scheduling conferences, ordered that

responses to the firm’s FOIA requests be staged, and required Amtrak to respond

to the firm’s requests in groups: i.e., requests 1-16, request 21, and requests 17-20,

in turn.2

On November 8, 2002, the firm moved for partial summary judgment on

requests 1-16 and on request 21. On January 15, 2003, Amtrak filed a crossmotion for summary judgment as to these requests. On May 13, 2003, the district

court largely denied both parties’ motions, essentially concluding that the

evidentiary record had not been sufficiently developed in order to determine

whether Amtrak had a valid basis for asserting the deliberative process privilege
The district court did allow the firm’s motion with respect to two categories of 3

information which had been redacted from previously disclosed documents: the identity of

certain individuals named in certain financial audit statements and third party business and

financial information contained in two final audit reports. Amtrak has represented in its brief

that it has now disclosed this material, and therefore, these documents are no longer at issue.

6

as to the requested documents.3

On July 28, 2003, the district court conducted a bench trial on the firm’s

FOIA requests 1-16. On August 18, 2003, the district court rejected Amtrak’s

assertion of the deliberative process privilege, allowed the firm’s FOIA requests 1-

16, and entered an order/injunction directing Amtrak to disclose most of the

requested documents to the firm within twenty days. On September 5, 2003, the

district court stayed its order/injunction requiring Amtrak to disclose the FOIA

material requested by the firm in paragraphs 1-16 pending a resolution of

Amtrak’s appeal to this Court.

II. ISSUE

Whether the district court erred in finding that the firm’s FOIA requests 1-

16 to Amtrak were not protected by the deliberative process privilege and, thus,

were not exempt from disclosure pursuant to 5 U.S.C. § 522(b)(5)?

III. STANDARD OF REVIEW

This Court reviews a district court’s conclusions of law regarding the

deliberative process privilege de novo and its findings of fact for clear error.
7

Office of the Capital Collateral Counsel, N. Region of Florida ex rel. Mordenti v.

Department of Justice, 331 F.3d 799, 802 (11th Cir. 2003); MiTek Holdings, Inc.

v. Arce Eng’g Co., Inc., 89 F.3d 1548, 1554 (11th Cir. 1996).

IV. ANALYSIS

A. ARGUMENTS

1. Amtrak

Amtrak argues that the district court erred in finding that the firm’s FOIA

requests 1-16 were not protected from disclosure pursuant to FOIA’s Exemption 5

(i.e., the deliberative process privilege), 5 U.S.C. § 552(b)(5), for four reasons. 

First, Amtrak asserts that, contrary to the district court’s conclusions, the

protections afforded by the deliberative process privilege are not confined only to

the documents reviewed by the final decision-maker. On the contrary, Amtrak

contends that the deliberative process privilege extends, not only to the draft audit

reports submitted for the final decision-maker’s consideration, but to the internal

memoranda, notes, and other work papers prepared by lower level auditors and

their staff because these staff level work papers play a significant role in the

deliberative process and are a vital part of the consultative process. Amtrak

asserts that these documents essentially record the deliberative process and,

therefore, are protected by the privilege.
8

Second, Amtrak claims that the public policy considerations underlying the

privilege mandate that these documents be considered privileged. Amtrak argues

that decision-making in large, hierarchical organizations frequently requires

consultation and deliberation among staff and lower level officials in order to

gather and analyze data, narrow the range of possible policy choices, compile and

verify a factual record, and shape recommendations for a final decision. Amtrak

asserts that subordinates’ participation in this process requires the same protection

of full and frank communications which is afforded to higher level officials;

otherwise, Amtrak claims, the potential for disclosure would chill subordinates’

communications and internal discussions.

Third, Amtrak argues that the district court improperly placed the burden

upon it to establish that disclosure of the documents would chill communications

from a particular subordinate auditor to senior auditors and, ultimately, to the

decision-maker. Amtrak asserts that Congress has already determined that

disclosure of deliberative materials carries a risk of chilling internal discussions,

and thus, the district court erred in requiring it to make a further showing of a

chilling effect.

Fourth, Amtrak argues that its detailed evidentiary submissions to the

district court at the bench trial clearly established that the audit work papers
9

sought by the firm embodied precisely the type of advice, recommendations, and

discretionary policy choices protected by the deliberative process privilege. In

particular, Amtrak contends that the audit work papers record the auditors’

decisions as to the methodology and scope of the planned audit, the mental

impressions of interviews, documents, and other data, preliminary analyses and

conclusions, supervisory review, and on-going evaluation of the audit work in

progress. As such, Amtrak claims that the audit work papers document a

collaborative, consultative process leading to a final audit decision and, therefore,

fall squarely within the protection of the deliberative process privilege.

In short, Amtrak argues that the district court’s narrow, restrictive

interpretation of the deliberative process privilege is at odds with both precedent

and sound public policy considerations. Amtrak contends that, contrary to the

district court’s finding, it carried its burden of establishing that the documents

sought by the firm were both predecisional and deliberative. As such, Amtrak

asks the Court to reverse the district court’s order/injunction requiring them to

disclose the documents sought by the firm in its FOIA requests 1-16.

2. The Firm

The firm asks the Court to affirm the district court’s holding because the

district court correctly found that Amtrak had failed to carry its evidentiary burden
The firm also argues that Amtrak has waived its argument that the district court applied 4

the wrong legal standard by failing to raise the issue to the district court during the bench trial.

10

of proof at trial and because the district court did not commit any errors as a matter

of law. Specifically, the firm asserts that the district court correctly found that

Amtrak had failed to carry its evidentiary burden of proving that the audit work

papers were predecisional and deliberative. The firm contends that the only

deliberative process asserted by Amtrak was Gary Glowacki’s (i.e., the decisionmaker) decision regarding whether or not to issue a final audit report. However,

the district court found that Amtrak failed to offer any evidence regarding the

deliberative process employed by Glowacki in determining whether or not to issue

a final audit report on the BBC-MEC contract, and the firm asserts that this

finding is not clearly erroneous.

Furthermore, the firm claims that the district court applied the proper legal

standards in evaluating Amtrak’s claim of the deliberative process privilege. In

fact, the firm notes that the district court quoted verbatim the standard set forth by

this Court in prior published opinions for determining whether the privilege

applies.

4

Moreover, the firm contends that Amtrak has mischaracterized the district

court’s holding in that, contrary to Amtrak’s assertion, the district court did not
11

limit the applicability of the deliberative process privilege to the deliberations of

the decision-maker. On the contrary, the firm argues that the district court

expressly recognized that the privilege could also reach a decision-maker’s

communications with subordinates, but the district court went on to hold that the

privilege did not extend to these documents under the circumstances.

In addition, the firm argues that the district court’s decision is consistent

with public policy considerations relating to FOIA. Specifically, the firm

contends that Congress enacted FOIA in order to permit access to information and

that FOIA mandates disclosure of documents unless a specified exemption applies. 

The firm asserts that Amtrak’s interpretation of Exemption 5 would swallow the

rule and would shield almost every document within the Government’s control

from public scrutiny.

Finally, the firm argues that Glowacki’s decision regarding whether or not

to issue a final audit report is not a “decision” to which Exemption 5 applies. In

short, the firm contends that the decision to issue or not to issue a final audit report

does not qualify as a deliberative process affecting any agency law or policy, and

thus, Amtrak cannot avail itself of the deliberative process privilege. Accordingly,

the firm asks the Court to affirm the district court’s order/injunction requiring

Amtrak to disclose the material which it sought pursuant to its FOIA requests 1-
Although Amtrak is not a federal agency, it must comply with FOIA’s requirements. 49 5

U.S.C. § 24301(e).

12

16.

B. DISCUSSION

FOIA requires government agencies to disclose to the public any requested

documents. United States v. Weber Aircraft Corp., 465 U.S. 792, 793-94 (1984); 5

5 U.S.C. § 552(a), (b). An agency may avoid disclosure only if it proves that the

documents fall within one of nine statutory exemptions. NLRB v. Sears, Roebuck

& Co., 421 U.S. 132, 136 (1975); Office of the Capital Collateral Counsel, 331

F.3d at 802. Because FOIA’s purpose is to encourage disclosure, its exemptions

are to be narrowly construed. Cochran v. United States, 770 F.2d 949, 954 (11th

Cir. 1985)(citing Department of Air Force v. Rose, 425 U.S. 352, 366 (1976)). 

The government bears the burden of proving that a requested document is

exempted. EPA v. Mink, 410 U.S. 73, 80 (1973); Chilivis v. SEC, 673 F.2d 1205,

1210-11 (11th Cir. 1982); 5 U.S.C. § 552(a)(4)(B).

“Exemption 5 protects from disclosure ‘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.’” Department of Interior v. Klamath Water

Users Protective Ass’n, 532 U.S. 1, 8 (2001)(quoting 5 U.S.C. § 552(b)(5)). This
13

provision shields those documents, and only those documents, normally privileged

in the civil discovery context. Sears, Roebuck & Co., 421 U.S. at 149. “Stated

simply, ‘[a]gency documents which would not be obtainable by a private litigant

in an action against the agency under normal discovery rules (e.g., attorney-client,

work- product, executive privilege) are protected from disclosure under

Exemption 5.’” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 481 (2d Cir.

1999)(quoting Providence Journal Co. v. United States Dep’t of the Army, 981

F.2d 552, 557 (1st Cir.1992)); Enviro Tech Int’l, Inc. v. USEPA, 371 F.3d 370,

2004 WL 1274331, * (7th Cir. June 10, 2004)(“Conversely, if a private litigant

could not obtain certain records from the agency in discovery, Exemption 5

relieves the agency of the obligation to produce that document to a member of the

public.”).

Exemption 5 also includes a “deliberative process privilege.” Nadler v.

United States Dep’t. of Justice, 955 F.2d 1479, 1490 (11th Cir. 1992), abrogated

on other grounds by United States Dep’t of Justice v. Landano, 508 U.S. 165

(1993). The purpose of this privilege is to allow agencies to freely explore

possibilities, engage in internal debates, or play devil’s advocate without fear of

public scrutiny. Klamath Water Users, 532 U.S. at 8-9. 

In addition, the privilege “protect[s] against premature disclosure of
14

proposed policies before they have been finally formulated or adopted and

protect[s] against confusing the issues and misleading the public by dissemination

of documents suggesting reasons and rationales for a course of action which were

not in fact the ultimate reasons for the agency’s action.” Id. Thus, Exemption 5

covers documents reflecting advisory opinions, recommendations, and

deliberations comprising part of a process by which governmental decisions and

policies are formulated. Sears, Roebuck & Co., 421 U.S. at 150.

To fall within the deliberative process privilege, a document must be both

“predecisional” and “deliberative.” Klamath Water Users, 532 U.S. at 8. A

“predecisional” document is one prepared in order to assist an agency decisionmaker in arriving at his decision and may include recommendations, draft

documents, proposals, suggestions, and other subjective documents which reflect

the personal opinions of the writer rather than the policy of the agency. Florida

House of Representatives v. United States Dep’t of Commerce, 961 F.2d 941, 945

(11th Cir. 1992); State of Missouri ex rel. Shorr v. United States Army Corps of

Eng’rs, 147 F.3d 708, 710 (8th Cir. 1998). However, “the privilege does not

protect a document which is merely peripheral to actual policy formation; the

record must bear on the formulation or exercise of policy-oriented judgment. 

Material which predates a decision chronologically, but did not contribute to that
15

decision, is not predecisional in any meaningful sense.” Grand Central P’ship, 166

F.3d at 482 (quoting Ethyl Corp. v. USEPA, 25 F.3d 1241, 1248 (4th Cir. 1994)

(internal quotation marks omitted)).

A document is “deliberative” if the disclosure of the materials would expose

an agency’s decision-making process in such a way as to discourage candid

discussion within the agency and, thereby, undermine the agency’s ability to

perform its functions. Shorr, 147 F.3d at 710 (citing Assembly of State of

California v. United States Dep’t of Commerce, 968 F.2d 916, 920 (9th Cir. 1992); 

Dudman Communications Corp. v. Department of Air Force, 815 F.2d 1565, 1568

(D.C. Cir. 1987)(“[T]he key question in Exemption 5 cases [is] whether the

disclosure of materials would expose an agency’s decisionmaking process in such

a way as to discourage candid discussion within the agency and thereby undermine

the agency’s ability to perform its functions.”). The underlying purpose of the

deliberative process privilege is to ensure that agencies are not forced to operate in

a fish bowl. Dow Jones & Co., Inc. v. Department of Justice, 917 F.2d 571, 573

(D.C. Cir. 1990)(quotation omitted). Therefore, courts must focus on the effect of

the material’s release, Schell v. United States Dep’t of Health & Human Servs.,

843 F.2d 933, 940 (6th Cir. 1988), and conclude that “[p]redecisional materials are

privileged ‘to the extent that they reveal the mental processes of decision-
16

makers.’” Assembly of State of California, 968 F.2d at 921 (quoting National

Wildlife Fed’n v. United States Forest Serv., 861 F.2d 1114, 1119 (9th Cir. 1988).

Furthermore, the Supreme Court has adopted, for Exemption 5 purposes, a

distinction between “factual” and “opinion” data. “Exemption 5 . . . requires

different treatment for material reflecting deliberative or policy-making processes

on the one hand, and purely factual, investigative matters on the other.” Mink, 410

U.S. at 89. The Supreme Court issued this mandate despite its acknowledgment

that the task of drawing a line between what is fact and what is opinion can at

times be frustrating and perplexing. Florida House of Representatives, 961 F.2d at

947. While it was delineating the contours of the privilege in Sears, Roebuck &

Co., the Supreme Court implicitly reaffirmed this fact/opinion distinction by

noting that the focus of the deliberative process privilege was “on documents

reflecting advisory opinions, recommendations and deliberations. . . .” Id. at 150. 

Later, in Federal Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443

U.S. 340 (1979), the Supreme Court explained that the purpose of the privilege for

predecisional deliberations is to ensure that a decision-maker will receive the

unimpeded advice of his associates. Id. at 359-60. Accordingly, the Supreme

Court has held that factual information generally must be disclosed and materials

embodying officials’ opinions are ordinarily exempt from disclosure. Petroleum
Our holding applies equally to the documents identified by the district court as

6

“miscellaneous work papers.” Although it is true that these documents were issued after a final

audit report, the documents all pertain to decisions as to whether to conduct further audit work in

light of the completed audit findings and, therefore, are protected by the deliberative process

privilege for the reasons discussed infra.

17

Info. Corp. v. United States Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir.

1992)(citing Mink, 410 U.S. at 87-91)).

In the instant case, we find that the district court erred in concluding that the

documents sought by the firm were not protected from disclosure pursuant to the

deliberative process privilege. 5 U.S.C. § 552(b)(5). In reaching this conclusion,

we agree with Amtrak’s assessment that there is no real factual dispute involved in

this appeal; rather, the key issue is a legal one: whether the district court correctly

concluded that the audit work papers and internal memoranda sought by the firm

are not protected by the deliberative process privilege because they were not

considered by the final decision-maker. Because we believe that the district court

took too narrow a view of Exemption 5, we must reverse and remand.6

Based upon the factual findings made by the district court, we believe that

the audit work papers and the internal memoranda at issue are both predecisional

and deliberative because Amtrak’s evidentiary submissions establish that the

entire body of collaborative work performed by Amtrak’s OIG auditors document

and contain the comments and notes authored by all levels of auditors working on
18

the BBC-MEC assignment. Congress established Amtrak’s OIG to ensure, inter

alia, that federal funds are used for its intended purpose and to deter fraud, waste,

and abuse. Inspector Gen. of USDA v. Glenn, 122 F.3d 1007, 1009 (11th Cir.

1997). Accordingly, Amtrak’s OIG is charged with the responsibility to “provide

policy direction for, and to conduct, supervise, and coordinate audits and

investigations,” to recommend policies for promoting efficiency and economy, and

to prevent and detect fraud and waste. 5 U.S.C. App. 3 §§ 3, 4.

Furthermore, although the district court acknowledged that Amtrak’s OIG

issuance of a final audit reported involved certain predecisional judgments and

internal consultations which are protected by the deliberative process privilege,

the district court too narrowly construed the scope of the privilege. The linchpin

of the district court’s reasoning (and our basis for reversal) is found in paragraph

fifteen of the district court’s conclusions of law. Therein, the district court

rejected Amtrak’s assertion of privilege as to the audit work papers because

“[t]here is no evidence that Glowacki reviewed any of the auditors’ working

papers after receiving the draft audit report from the Senior Director responsible

for the audit. Therefore, I find that the information in the audit working papers

was not directly involved in Glowacki’s decision-making process.” R/E 177.

However, the district court’s ruling fails to account for the significant role
19

during the auditing process which the lower level staff play in Amtrak’s OIG’s

deliberative process. Again, as Amtrak’s evidence revealed and as the district

court’s own factual findings establish, the audit work papers document the entire

body of collaborative work performed by the auditors and contain: (1) the initial

work plan for the audit describing its purpose and objectives as well as the

methodologies and sampling techniques which will be used to gather and analyze

the audit data; (2) the staff auditors’ notes and/or memoranda summarizing site

visits, interviews, meetings, and/or telephone conversations which record the

auditors’ impressions of the information obtained and his view of the reliability of

the information; (3) the auditors’ preliminary calculations, findings, and

conclusions as well as a description of any additional work the auditor believes is

necessary in order to complete an evaluation; and (4) suggestions and critiques

from the auditors’ peers and superiors, including recommendations for further

action.

Contrary, to the district court’s finding and the firm’s assertion, Amtrak

need not cite to a specific policy decision in connection with which the audit work

papers and internal memoranda were prepared in order for these documents to be

protected from disclosure by the deliberative process privilege. As the Supreme

Court has explained:
20

Our emphasis on the need to protect pre-decisional documents does

not mean that the existence of the privilege turns on the ability of an

agency to identify a specific decision in connection with which a

memorandum is prepared. Agencies are, and properly should be,

engaged in a continuing process of examining their policies; this

process will generate memoranda containing recommendations which

do not ripen into agency decisions; and the lower courts should be

wary of interfering with this process.

Sears, Roebuck & Co., 421 U.S. at 151-52 n. 18; Vaughn v. Rosen, 523 F.2d

1136, 1146 (D.C. Cir. 1975)(“We are not saying that a ‘final decision’ is necessary

for there to be a ‘deliberative process’ which is protected by Exemption 5. Rather,

we cite the absence of any assured final decision as indicative of the amorphous

nature of the mass of information the Government seeks to protect, i.e., the failure

of the affidavits relied on to come to grips with and define what it is out of this

mass of documents that the Government considers the ‘deliberative process’ and

thus entitled to protection.”). Thus, the district court erred in focusing exclusively

upon whether the final decision-maker viewed the requested material rather than

viewing the entire auditing process as a whole. Id. at 150 (holding that the

deliberative process privilege protects “documents reflecting advisory opinions,

recommendations, and deliberations comprising part of a process by which

governmental policies are formulated.”)(emphasis added). Had the district court

done so, it would have determined that the audit work papers and internal
21

memoranda were protected by the deliberative process privilege. See Hamilton

Sec. Group Inc. v. Department of Housing and Urban Dev., 106 F. Supp. 2d 23,

29-32 (D.D.C. 2000)(holding that the Inspector General’s draft audit materials are

deliberative materials protected from disclosure by Exemption 5 of FOIA); see

also Mead Data Cent., Inc. v. United States Dep’t of Air Force, 575 F.2d 932, 934-

35 (D.C. Cir. 1978)(concluding that “cost comparisons, feasibility opinions, and

the data relevant to how the personnel involved arrived at those comparisons and

opinions are policy deliberative.”).

Likewise, the district court’s finding that Amtrak failed to carry its burden

of proof with regard to establishing the applicability of the privilege is incorrect

because the district court focused solely upon the audit work papers and internal

memoranda as it related directly to the decision-maker, Glowacki, rather than

viewing these documents as they related to the entire auditing process. When

viewed accordingly, it is clear that Amtrak established that the material was both

predecisional and deliberative in character. 

For example, Amtrak submitted a detailed declaration from a senior Amtrak

OIG auditor, Roy Wiegand, who detailed the nature of the audit process and the

role which the audit work papers play in documenting the mental impressions,

advice, opinions, and recommendations of the auditors and supervisors at lower
Contrary to the firm’s assertion otherwise, the district court did not find Wiegand’s 7

testimony incredible. In fact, the district court cited Wiegand’s uncontradicted declaration as a

basis for its findings on the content and purpose of the audit work papers.

22

levels of the decisional process. Wiegand’s testimony was undisputed at the

bench trial. Thus, it is clear that this material was consultative and deliberative in 7

nature. City of Virginia Beach, Virginia v. United States Dep’t of Commerce, 995

F.2d 1247, 1253 (4th Cir. 1993) (deliberative documents broadly include

“recommendations, draft documents, proposals, suggestions, and other subjective

documents which reflect the personal opinions of the writer rather than the policy

of the agency.”)(internal quotation omitted).

In addition, while it is certainly true that FOIA’s purpose is to encourage

disclosure, it is equally true that Amtrak’s OIG serves a valid public purpose and

that this purpose would be hampered if lower level auditors declined to engage in

open and frank discussions with supervisors and decision-makers for fear that

their comments would be subjected to public scrutiny. Florida House of

Representatives, 961 F.2d at 949 (“It defies reason as well as Supreme Court

precedent, to then go back and weigh the policies underlying the distinction to

decide whether disclosure would in fact discourage frank discussion in some

specific case.”). Congress established Amtrak’s OIG to ensure that federal funds

were being appropriately spent, and the enabling statute charged Amtrak’s OIG
We are not persuaded by the firm’s other arguments (1) that Amtrak has waived its

8

argument that the district court applied the wrong standard, (2) that Glowacki’s decision

regarding whether or not to issue a final audit is not a decision to which Exemption 5 even

applies, and (3) that the audit work papers contain certain factual information which is not

protected by the deliberative process privilege. Our review of the record persuades us that

Amtrak has not waived any arguments for purposes of this appeal. In addition, as discussed

supra, Exemption 5 is applicable to the documents sought by the firm. Finally, contrary to the

district court’s conclusion, the selection and sifting of factual materials (as is the case here) may

itself be the product of a government agency’s deliberative process and, therefore, entitled to the

privilege. Lead Indus. Ass’n, Inc. v. OSHA, 610 F.2d 70, 85 (2d Cir. 1979); Montrose Chem.

Corp. of California v. Train, 491 F.2d 63, 68 (D.C. Cir. 1974).

23

with the responsibility of establishing appropriate audit policies, recommending

policies for promoting efficiency and deterring abuse, and referring suspected civil

and criminal violations to the Attorney General. 5 U.S.C. App. 3 §§ 3, 4. 

Amtrak’s OIG cannot fulfil these duties and further these policies if the lower

level staff auditors’ communications with supervisors and decision-makers are

chilled by the fear of having their comments made public.

Nor are we overly concerned that our ruling will necessarily result in

Exemption 5 swallowing FOIA’s disclosure requirements. On the contrary, in

order for the deliberative process privilege to apply, the decision-making process

must bear a reasonable nexus to the documents sought. Here, we find that such a

reasonable nexus exists, and therefore, the audit work papers and internal

memoranda sought by the firm are protected from disclosure by Exemption 5.

8

V. CONCLUSION
24

In sum, we find that the district court took too narrow a view of the

deliberative process privilege when it restricted Exemption 5's scope to extend

only to those documents which were actually reviewed by the decision-maker

Glowacki. In determining whether the deliberative process privilege applied, the

district court should have considered whether the documents reflected advisory

opinions, recommendations, and deliberations comprising part of a process by

which Amtrak’s OIG auditing policies were formulated. We hold that, applying

this standard, Amtrak has satisfied its burden of establishing that the material

sought by the firm is both predecisional and deliberative and, thus, protected from

disclosure by FOIA’s Exemption 5. 

Accordingly, we reverse the district court’s holding that Amtrak’s audit

work papers and internal memoranda are not protected from disclosure pursuant to

FOIA’s Exemption 5 and remand this case to the district court for further

proceedings consistent with this opinion.

REVERSED AND REMANDED.